United States Court of Appeals
For the First Circuit
No. 10-2239
BARRY NOLAN,
Plaintiff, Appellant,
v.
CN8, THE COMCAST NETWORK, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Lawrence P. Murray, with whom Laura R. Studen, Joshua N. Cook,
and Burns & Levinson LLP were on brief, for appellant.
Joshua M. Davis, with whom Evan J. Shenkman, Asha A. Santos,
and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief,
for appellees.
August 29, 2011
LIPEZ, Circuit Judge. Barry Nolan, a regional television
personality, was discharged from his employment with The Comcast
Network, LLC ("Comcast") after he publicly protested the selection
of political commentator Bill O'Reilly for a prestigious
broadcasting award. In response to this discharge, Nolan filed in
the Massachusetts Superior Court a claim of speech-motivated
retaliation under the Massachusetts Civil Rights Act ("MCRA"),
Mass. Gen. Laws Ann. ch. 12, §§ 11H, 11I. After Comcast's removal
of the case to federal court, the district court entered summary
judgment in favor of Comcast on Nolan's suit, finding no violation
of the MCRA. We affirm.
I.
On appeal from the grant of summary judgment, we recite
the facts of record in the light most favorable to the non-moving
party. E.g., Faiola v. APCO Graphics, Inc., 629 F.3d 43, 45 (1st
Cir. 2010).
In 2008, Nolan was employed by Comcast as the executive
producer and on-air host of the television program "Backstage with
Barry Nolan." The program aired on CN8, Comcast's northeast
regional cable television network, and primarily featured celebrity
interviews and local entertainment news. A written agreement set
forth the terms of Nolan's employment with Comcast. By its terms,
the employment was to run for two consecutive twelve-month periods,
from May 2007 to May 2009.
-2-
Two paragraphs of the concise, ten-page document
addressed the possibility of Nolan's premature discharge.
Paragraph 6 set out several conditions under which Comcast was
permitted to terminate the agreement without consequence. Among
them were the following:
b. Termination by Company
I. The Company determines in its sole
and absolute discretion that Employee should
be removed from the position Employee is
presently employed under this agreement;
. . .
v. Employee engages in any other act
or omission warranting termination of
employment in accordance with Company policy,
including anything which, in the Company's
sole and absolute judgment, brings Employee or
the Company into public disrepute, contempt,
ridicule, or scandal, or which, in the
Company's sole and absolute judgment is
offensive to a substantial segment of the
viewing public or would reflect unfavorably on
the Company's interests or reputation.
Paragraph 7 of the contract, meanwhile, established Comcast's
obligations to Nolan should it elect to discharge him "for any
reason other than the reasons set forth in Paragraph's [sic] 6(a)
and 6(b) above."
In April, Nolan learned that the New England chapter of
the National Academy of Television Arts and Sciences (NATAS)
intended to honor the high-profile Fox News commentator Bill
O'Reilly with the prestigious Governor's Award. The award would be
presented at NATAS's annual Emmy Awards ceremony in Boston. Nolan,
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himself a New England NATAS member and 2008 Emmy Award nominee, did
not believe O'Reilly was a worthy choice for the award. On April
4, he sent a lengthy e-mail to other NATAS members in which he
sharply criticized the selection of O'Reilly. He described the
choice as, among other things, "an appalling and deeply offensive
lapse in judgment," one which he feared "would legitimize the
buffoonish excuse for journalism that Mr. O'Reilly presents on a
nightly basis." Nolan sent this missive from his Comcast-
affiliated e-mail address and included his Comcast-issued work
phone number at the end of the message.
On April 8, Nolan's direct supervisor and CN8's Senior
Director of Programming, Eileen Dolente, warned Nolan that he
should "be selective about what [he] send[s] on the company
address." She also reminded him that Comcast needed to maintain a
business relationship with NATAS because CN8 held the exclusive
television broadcast rights for the Emmy Awards ceremony. Nolan
acknowledged the warning and agreed to send future e-mails from his
personal e-mail address.
Nolan continued to voice his displeasure with O'Reilly's
selection for the Governor's Award, however. The day after the
warning from Dolente, he was contacted by a reporter for the Boston
Herald to provide his comments on the subject. Upon learning of
Nolan's contact with the media, Jon Gorchow, CN8's Vice President
and General Manager, sent Nolan a sternly worded e-mail detailing
CN8's "official position" on the protest. Among other things,
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Nolan was informed that CN8 had already drafted a press release
that it would issue, if necessary, to distance the network from his
personal comments. He was also instructed not to attempt to
solicit support for his "campaign" from other CN8 employees, and
was encouraged to speak to CN8's public relations department before
speaking to the press any further. The e-mail ended, "[B]y nature
of your being a public figure, and a cn8 employee, you have certain
obligations to the network that you must take into account here."
Less than an hour after receiving Gorchow's e-mail, Nolan
contacted the reporter from the Boston Herald to provide additional
material about O'Reilly. On April 11, that newspaper published an
article entitled "Barry Nolan pleads: Give Bill the boot!" In it,
Nolan was identified as "CN8's Barry Nolan" and was twice quoted
describing O'Reilly as a "mental case." That same day, Nolan sent
an e-mail from his personal e-mail address to other 2008 Emmy Award
nominees in which he urged them to join his "petition of protest"
lest their awards be "forever tarnished" by O'Reilly's receipt of
the Governor's Award.
Following the Boston Herald story, Nolan's protest was
heavily criticized in the online blog "Tabloid Baby." Over the
next few days, Nolan repeatedly defended his actions and attacked
his online critics; he submitted a rejoinder to the initial article
in "Tabloid Baby" in which he insinuated that the author had a
drinking problem, and he derided critical commenters as "O'Reilly
-5-
Fanboys." He even dared one (who, though anonymous, purported to
be an attorney) to "Sue me you dipstick."
Just days before the Emmy Awards ceremony, Dolente flew
from Philadelphia to Boston for a face-to-face meeting with Nolan.
The purpose of the meeting was for Dolente to relay her
instructions about Nolan's behavior at the upcoming Emmy ceremony.
According to Nolan, Dolente's message was, "Be careful. Watch what
you do. Don't make a scene. This is serious." She also clearly
implied that Nolan's continued protest could result in adverse
economic consequences for him.
Nolan arrived at the awards ceremony on May 10 with
approximately one hundred copies of a homemade pamphlet. The
pamphlet, six pages in length, detailed numerous examples of why
Nolan believed O'Reilly to be a poor choice for the Governor's
Award, including rather explicit details that had emerged from a
sexual harassment lawsuit against O'Reilly. Nolan left copies of
his pamphlet in various public areas outside the ballroom in which
the ceremony was to be held, and on the dining tables inside the
ballroom, one of which had been purchased by Comcast for Nolan and
the "Backstage" team to attend.
At the ceremony, Nolan was approached by NATAS president
Tim Eagan, who expressed his disapproval of Nolan's protest. In
addition, Nolan was confronted at his dining table by hotel
security, who informed him that he had to stop distributing the
pamphlets. When O'Reilly was formally announced as the recipient
-6-
of the Governor's Award during the ceremony, Nolan stood up and
left the room. He did not return to see his staff win Emmy Awards.
The Senior Producer for Nolan's show said that his conduct "put a
bit of a damper on the night for the staff." She also stated that
she was approached that night by a Comcast executive who conveyed
his displeasure with Nolan's protest.
That evening, Gorchow called Mike Doyle, the President of
Comcast's Eastern Division, to apprise him of Nolan's actions.
Later, Gorchow typed up a chronology of events and the merits of
suspending Nolan as an alternative to terminating him. Among other
things, Gorchow wrote:
Barry put his own personal point of view ahead
of the needs of the network, and did so at an
industry function where he was a
representative of the network, and presumably
where his attendance was paid for by the
network, and the result very well could have
been extremely embarrassing for the network.
On May 12, Nolan received a memorandum suspending him for
"insubordination and breach of contract." The memorandum quoted
Paragraph 6(b)(v) of the employment agreement and included claims
that Nolan had been "observed in a heated exchange" with Eagan on
the night of the awards ceremony and that "[a]fter the event there
was much discussion among the attendees of what had occurred and
the spectacle [he] created." Nolan was ordered to refrain from any
further communication with the media until his suspension was
lifted. The next day, Dolante sent an e-mail to Nolan explaining,
"[I]t's not the disagreement with the award decision that led to
-7-
the suspension, but rather the actions you took, which directly
contradict the language in your contract. That's the bottom line
here . . . ."
The same day Nolan received his suspension notice, Brian
Roberts, Chairman and CEO of Fox News, received a letter from
O'Reilly which read as follows:
We at The O'Reilly Factor have always
considered Comcast to be an excellent business
partner and I believe the same holds true for
the entire Fox News Channel. Therefore, it
was puzzling to see a Comcast employee, Barry
Nolan, use Comcast corporate assets to attack
me and FNC.
This outrageous behavior continued at The New
England Emmy Award ceremony on May 10 and,
again, Mr. Nolan was in attendance in
conjunction with Comcast. If you need
specifics, we would be glad to provide them.
All of us here hope the situation will subside
and that is why I am bringing it to your
attention. The kind of attack launched by
Nolan is uncalled for and unnecessary.
Sorry to bother you with this, but it is a
disturbing situation.
O'Reilly's letter eventually made its way to Comcast executives,
including Doyle. In an e-mail discussing how Comcast ought to
respond, Doyle stated, "I am very uncomfortable calling Bill
O'Reilly and writing him because I do not trust Barry Nolan and
have witnessed his total disregard for management decisions and his
selfish actions over the reputation of cn8." He described Nolan as
"a tough individual to defend to the folks at Fox News and the
executives at Comcast." In a related e-mail, Doyle also made clear
-8-
that Nolan's suspension was provisional. According to Doyle, the
"[b]ottom line is if he shows the right attitude toward handling
this situation he gets another chance. If he doesn't, the show
will continue with a new host."
On the very day that Doyle contacted O'Reilly to
apologize for Nolan's conduct at the Emmy Awards ceremony, a letter
from Nolan further disparaging O'Reilly appeared on the website
"tvspy.com." Comcast executives were unable to determine the
precise date that the letter had been submitted. Nolan testified
in his deposition that he sent the letter sometime in May, "around
the time all this was going on."
During his suspension, Nolan informed Dolente that he had
been approached by the television show "EXTRA," which was looking
for a local reporter and crew to cover Senator Ted Kennedy's
hospitalization in Boston. Nolan recommended that Comcast lend
some of its crew. "EXTRA" had also requested that Nolan provide an
on-camera performance the following week, and asked Dolente for
instructions about how he should respond. On May 17, Dolente
informed Nolan that she agreed that he should "assist as he
suggested." On May 18, however, she wrote Nolan and informed him
that she was waiting to hear from someone in Comcast's Human
Resources department regarding Nolan's request to do on-camera work
during his suspension. On the morning of May 19, Dolente e-mailed
Nolan stating, "The preference is that you pass on this request
until you are back on the air at CN8 next week."
-9-
According to Nolan, he had already agreed to "EXTRA"'s
request by the time he received Dolente's last e-mail, and he
lacked sufficient time to find a replacement. He also took Dolente
to have "expressed a preference - but not a demand." Thus, on May
19, Nolan appeared on air for "EXTRA." When Dolente inquired into
whether he had appeared on "EXTRA" after she had instructed him not
to, Nolan explained the situation. He then stated, "If they are
still looking for a reason to fire me - I have no doubt they can
find plenty here." Nolan followed that acknowledgment with a
lengthy critique of Comcast's actions, including his suspension.
He stated that he felt "violated" by the process, and he
characterized Comcast's response to his protest as "punishing me
and humiliating me because I felt morally obligated to oppose an
action that brought discredit to an organization I was obligated to
belong to - and discredit to our industry."
The next day, Gorchow sent an e-mail to Doyle, which read
in relevant part as follows.
Eileen received an e-mail rant from Barry
expressing no guilt, no remorse, in fact quite
the opposite. It is clear that despite his
written acknowledgment, he is not willing to
accept or even try to understand the facts
surrounding his suspension, which he
mistakenly continues to believe is about free
speech rather than violating his contract and
completely ignoring instructions from his
supervisor.
That day, Gorchow made the decision to terminate Nolan. Nolan was
notified by phone and also given a notice of termination, which
-10-
explicitly stated that the termination was "with cause, pursuant to
Paragraph 6(b)" of his employment agreement.
II.
Nolan filed a one-count civil complaint in Massachusetts
Superior Court pursuant to the MCRA, alleging that Comcast,
Dolente, and Gorchow interfered with his right to free speech as
secured by the First Amendment to the United States Constitution
and Article XVI of the Massachusetts Declaration of Rights. The
defendants removed the case to federal district court, and, in due
course, moved for summary judgment. Nolan opposed summary judgment
and moved to strike portions of the affidavits and exhibits relied
upon by the defendants.
The district court granted summary judgment for the
defendants and denied the motion to strike. Nolan v. CN8, No.
1:08-cv-12154, 2010 WL 3749466, at *5 (D. Mass. Sept. 21, 2010).
According to the court, the dispositive question under
Massachusetts law was "whether Comcast had cause under the
Employment Agreement to terminate [the plaintiff] or,
alternatively, whether plaintiff was, in reality, an employee
at-will." Id. at *3. If either condition obtained, the court
reasoned, then Nolan's termination could not "interfere" with his
right to free speech. Id. The district court correctly found that
Nolan's employment was not "at-will in the traditional sense of
that term" -- that is, employment terminable without notice or
-11-
reason by either party to the agreement. Id. at *4. Nevertheless,
it concluded that the defendants' motion for summary judgment
should be granted since Paragraph 6(b)(I) of the contract permitted
Comcast to "terminate Nolan for any reason, or no reason at all,
and since, in its sole discretion, it had cause to terminate his
employment." Id.
The case is before us on Nolan's timely appeal of that
ruling.
III.
We review the district court's summary judgment ruling de
novo. Summary judgment is appropriate whenever the record, viewed
in the light most favorable to the non-movant, reveals "no genuine
dispute as to any material fact" and shows that "the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
see also Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4
(1st Cir. 2010). A dispute is "genuine" only if a reasonable
factfinder could resolve it in favor of either party. E.g.,
Borges, 605 F.3d at 4. A disputed fact is "material" only if its
existence vel non has the potential to change the outcome of the
suit. E.g., id. at 5. "Withal, we are not married to the trial
court's rationale but may uphold its ruling on any ground made
manifest by the record." Foote v. Town of Bedford, 642 F.3d 80, 82
(1st Cir. 2011).
-12-
Sitting pursuant to our diversity jurisdiction, we are
constrained to apply the substantive law of Massachusetts. Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). "In doing so, we
'look to the pronouncements of a state's highest court in order to
discern the contours of that state's law.'" Barton v. Clancy, 632
F.3d 9, 17 (1st Cir. 2011) (quoting González Figueroa v. J.C.
Penney P.R., Inc., 568 F.3d 313, 318 (1st Cir. 2009)). Where the
highest court has not spoken directly on the question at issue, we
must predict, as best we can, that court's likely answer. Id.
Notably, our obligation to make such an "informed prophecy" is
dampened by a concomitant duty to confine our forecast "within the
narrowest bounds sufficient to permit disposition of the actual
case in controversy." Moores v. Greenberg, 834 F.2d 1105, 1112
(1st Cir. 1987). Our task is thus limited, to the extent possible,
to applying state law as it currently exists, not creating new
rules or significantly expanding existing ones. In re Citigroup,
Inc., 535 F.3d 45, 52 (1st Cir. 2008).
Here, the governing law is the Massachusetts Civil Rights
Act, a state-law analogue to 42 U.S.C. § 1983 that provides a
statutory civil cause of action against those who "interfere" with
the exercise or enjoyment of rights secured by federal or state
law. Mass. Gen. Laws Ann. ch. 12, § 11H. The MCRA differs from
§ 1983 in two significant respects. First, the MCRA is broader
than § 1983 in that it reaches private conduct. It provides for
civil claims against "any person or persons, whether or not acting
-13-
under color of law." Id.; see also Batchelder v. Allied Stores
Corp., 473 N.E.2d 1128, 1131 (Mass. 1985) (explaining that the
"Legislature intended to provide a remedy . . . co-extensive with
42 U.S.C. § 1983, except that the Federal statute requires State
action whereas its State counterpart does not").
Second, the MCRA is narrower than § 1983 in that it
limits its remedy to conduct that interferes with a secured right
"by threats, intimidation or coercion." Mass. Gen. Laws Ann. ch.
12, § 11H; see also Sena v. Commonwealth, 629 N.E.2d 986, 993
(Mass. 1994). This latter requirement is of particular relevance
here.1 The Massachusetts legislature intended that even a direct
deprivation of a plaintiff's rights "would not be actionable under
the act unless it were accomplished by means of one of these three
1
The concurrence suggests in its introduction that addressing
the presence or absence of threats, intimidation, or coercion (1)
"unnecessarily reaches an issue that was neither addressed by the
district court nor substantively briefed by the appellees," and (2)
"is out of step with the logical sequence prescribed by the
Massachusetts Supreme Judicial Court." The suggestion that the
issue is not before us is just not so. Although the district court
did not reach the issue, there is no dispute that the appellant has
argued that his termination was coercive. We are not controlled in
our analysis by the way in which the appellee chooses to respond.
Similarly, the concurrence is wrong to suggest that the
Massachusetts courts have prescribed any particular order of
addressing the elements of an MCRA claim. The Supreme Judicial
Court frequently disposes of such claims for lack of "threats,
intimidation, or coercion" without deciding whether a plaintiff was
exercising a secured right or whether that right was interfered
with. See, e.g., Buster v. George W. Moore, Inc., 783 N.E.2d 399,
403-12 (Mass. 2003); Brum v. Town of Dartmouth, 704 N.E.2d 1147,
1162 (Mass. 1999); Webster v. Motorola, Inc., 637 N.E.2d 203, 206
(Mass. 1994); Sena, 629 N.E.2d at 993; Layne v. Superintendent, 546
N.E.2d 166, 168 (Mass. 1989).
-14-
constraining elements." Buster v. George W. Moore, Inc., 783
N.E.2d 399, 409 (Mass. 2003).
Although the Massachusetts Supreme Judicial Court has
explicitly endorsed the view that purely economic pressures may
constitute actionable coercion under the MCRA, see id. at 410 &
n.17, it has held that the termination, or threatened termination,
of at-will employees is not coercive in the relevant sense under
the MCRA. See Webster v. Motorola, Inc., 637 N.E.2d 203, 206
(Mass. 1994); cf. Korb v. Raytheon Corp., 574 N.E.2d 370 (Mass.
1991) (finding "no improper interference with secured rights" where
at-will employee's speech made him ineffective advocate for
company). Accordingly, in light of the district court's conclusion
that Paragraph 6(b)(I) of the employment agreement permitted
Comcast to "terminate Nolan for any reason, or no reason at all,"
the parties have devoted considerable attention to the issue of
whether Nolan was an at-will employee, either in fact or
constructively. In particular, Nolan contends that these at-will
employment precedents are inapplicable to his claim because he was
a contract employee for a definite term who was terminated for
cause pursuant to Paragraph 6(b)(v).2
2
More fundamentally, Nolan contends that the district court
erred by looking to Paragraph 6(b)(i) of the agreement at all,
since Comcast terminated him pursuant to Paragraph 6(b)(v). This
focus on Paragraph 6(b)(v) does not help Nolan's position. See
infra.
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We need not resolve the question of whether Nolan was an
at-will employee, however. Although a finding that Nolan was in
fact an at-will employee would be outcome-determinative (in that
his MCRA claim would fail for lack of coercion), a contrary finding
would not be. Nolan's right to relief turns on whether Comcast's
termination of his employment constitutes "coercion" under the
MCRA, and the Supreme Judicial Court's cases demonstrate only that
some contractual entitlement to one's position is necessary, but
not necessarily sufficient, to show that an employee's termination
is coercive in the relevant sense.
The rationale behind the court's refusal to find
actionable coercion in the termination of at-will employment
remains somewhat unclear.3 For instance, the analysis in Webster
v. Motorola, Inc., among the more fully stated on the point, is (in
full) that "because the plaintiffs were employed 'at will,' they
had no contract right to their positions." 637 N.E.2d at 206.
Similarly, the Supreme Judicial Court has held that an employer's
refusal to renew an employee's expired year-to-year contract in
retaliation for the employee's attempt to form a union was not
coercive under the MCRA because the employer merely "exercised its
3
Although the concurrence criticizes our reliance on case law
whose reasoning is admittedly unclear, it fails to acknowledge that
the approach it advocates rests on the same handful of precedents
and fundamentally the same reasoning. The Massachusetts courts
have alternately described the lack of a contractual entitlement to
continued employment as demonstrating an absence of coercion and an
absence of interference with secured rights.
-16-
discretion under the terms of employment it chose to offer its
teachers." Willitts v. Roman Catholic Archbishop, 581 N.E.2d 475,
479 (Mass. 1991). Viewing these cases, one federal court has
suggested that the Supreme Judicial Court's approach reflects its
judgment that the threatened deprivation of something to which one
has no entitlement is never coercive. See Delmonte v. Laidlaw
Envt'l Servs., Inc., 46 F. Supp. 2d. 89, 93 (D. Mass. 1999)
("[C]onditioning at-will employment on a restriction of the
exercise of a secured right is not an MCRA 'threat, intimidation or
coercion' because, in essence, at-will employees are not entitled
to their employment, and therefore do not, when threatened with its
loss, reasonably suffer coercion or intimidation.").
Outside of the context of at-will employees, the Supreme
Judicial Court has never directly addressed the issue of whether,
and under what circumstances, the termination of employment can be
coercive. The dearth of case law in this area reflects what we
have noted previously: "the exception for claims based on non-
physical coercion remains a narrow one." Meuser v. Fed. Express
Corp., 564 F.3d 507, 519 (1st Cir. 2009) (quoting Meuser v. Fed.
Express Corp., 524 F. Supp. 2d 142, 147 (D. Mass. 2007)) (internal
quotation mark omitted). At most, the Supreme Judicial Court
suggested in Redgrave v. Boston Symphony Orchestra, Inc., 502
N.E.2d 1375 (Mass. 1987), that an employer's breach of contract in
response to public outrage about an employee's political opinions
-17-
might be sufficiently coercive to warrant relief under the MCRA.4
See Bally v. Ne. Univ., 532 N.E.2d 49, 52 (Mass. 1989) ("[I]n
Redgrave, . . . we stated that the Boston Symphony Orchestra
violated the Act because its cancellation of its contract with
Redgrave had the effect, intended or otherwise, desired or not, of
coercing Redgrave not to exercise her First Amendment rights.").
But this is not a case in which Comcast breached its contract,
depriving Nolan of future economic gain to which he was rightfully
entitled. Cf. Acciavatti v. Prof'l Servs. Grp., Inc., 982 F. Supp.
69, 78-79 & n.7 (D. Mass. 1997) (situating the termination of
employee covered by collective bargaining agreement within
Massachusetts's economic coercion case law).
Here, Paragraph 6(b)(v) of the employment agreement
afforded Comcast unlimited discretion to terminate Nolan for his
campaign of public protest, regardless of whether the agreement was
otherwise terminable at will.5 There can be no genuine dispute
4
As the Supreme Judicial Court has acknowledged, the Redgrave
Court "merely answered two certified questions, neither of which
addressed whether the actual or threatened infliction of economic
harm could constitute 'coercion' within the meaning of the act."
Buster, 783 N.E.2d at 410 n.17. Nevertheless, that decision "has
generally been accepted as establishing a foundation for the
proposition that actual or prospective 'breach of contract'
constitutes 'coercion' under the act." Id.
5
The contract is far from a model of clarity. For example,
Paragraph 6(b)(i) ostensibly permits Comcast to fire Nolan for any
reason at all. Yet Paragraph 7 establishes Comcast's continuing
obligations to Nolan in the event that it prematurely terminates
the contract "for any reason other than the reasons set forth" in
Paragraph 6. For the reasons articulated herein, we need not
grapple with such apparent inconsistencies.
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that Comcast made the judgment that Nolan's behavior reflected
negatively on Comcast and thus warranted his termination, and there
has been no suggestion to the contrary.6
Nolan nevertheless contends that summary judgment is
inappropriate because there remain "genuine issues of material fact
as to whether [he] was insubordinate, whether he breached his
employment agreement, and whether he publicly acted contrary to
Comcast's business interest." Pursuant to the employment
agreement, the absolute right to make those determinations falls to
Comcast, and hence the issues he identifies are not material.7
Given the Supreme Judicial Court's refusal to find
actionable coercion in the termination of at-will employees under
the MCRA, we cannot see a reasonable argument for distinguishing
Comcast's exercise of its unlimited discretion in terminating
6
In a footnote, Nolan observes that the implied covenant of
good faith and fair dealing obligated Comcast to exercise its
contractual discretion in good faith, rather than as pretext. Even
if this argument were not waived, see Nat'l Foreign Trade Council
v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) ("We have
repeatedly held that arguments raised only in a footnote or in a
perfunctory manner are waived."), the record reveals no pretext.
Instead, it overwhelmingly demonstrates that Comcast's concerns
about Nolan's speech and its consequences was, in fact, the basis
for the termination of his employment.
7
For this reason, the district court also correctly denied
Nolan's motion to strike. To the extent that the challenged
affidavits and exhibits contain statements that would be
inadmissible hearsay if offered for their truth, they are
nonetheless admissible as evidence of Comcast's knowledge and state
of mind at the time of the termination decision. See generally
Massachusetts Guide to Evidence § 801(c) & note at 246–247 (2010
ed.).
-19-
Nolan's employment under Paragraph 6(b)(v). Nolan's employment
agreement, whether or not creating "at-will" employment under
Massachusetts law, provided Comcast with discretion to terminate
the agreement so close in substance to at-will employment that we
cannot imagine the Supreme Judicial Court finding coercion in these
circumstances. Because the record, viewed in the light most
favorable to Nolan, thus fails to show actionable "threats,
intimidation or coercion" by Comcast, Nolan's claim under the MCRA
necessarily fails.
In reaching this outcome, we have carefully avoided
making judgments about contracts that offer more protection to
their employees than the one at issue here. The same cannot be
said for the concurrence, which broadly proclaims, without
citation, that "the exercise of a legitimate cause for termination
under the terms of an employment contract . . . eliminates any
possibility of the sort of interference . . . required by the
MCRA." Infra p. 25. The concurrence extrapolates this principle
from Massachusetts case law that has not yet confronted an MCRA
claim brought by a terminated contractual employee. This approach
disregards our obligation in diversity cases to resolve state law
questions narrowly, and only as far as necessary to decide the case
before us. The concurrence's approach would curtail the
protections available to Massachusetts employees under a
Massachusetts remedial statute without meaningful indication from
either Massachusetts courts or the Massachusetts legislature that
-20-
such curtailment is appropriate. Moreover, in every case involving
the termination of employment, the question whether there was a
breach of contract would become a necessary antecedent to the
question whether an MCRA claim may lie, effectively requiring a
trial within a trial. To be sure, the circumstances of this case
required us to look to the terms of Nolan's contract, but it is the
analogy to at-will employment, and thus to the well-established
principle that the termination of an at-will employee will not give
rise to an actionable claim under the MCRA, that drives the outcome
here. Where that analogy no longer holds, nothing we have said
here should be read to preclude the possibility of relief under the
MCRA for a terminated contractual employee.
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
-Concurring Opinion Follows-
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SELYA, Circuit Judge (concurring in the judgment). I
agree with my brethren that the entry of summary judgment in this
case should be affirmed. I write separately, however, because the
majority's analytical approach is out of step with the logical
sequence prescribed by the Massachusetts Supreme Judicial Court
(SJC), unnecessarily reaches an issue that was neither addressed by
the district court nor substantively briefed by the appellees, and
adds elements of confusion to what I view as a straightforward
case.
As the SJC has repeatedly stated, a plaintiff who sues
under the Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws
ch. 12, §§ 11H, 11I, must show: (I) that he was exercising a
protected right; (ii) that the defendant interfered (or attempted
to interfere) with that right; and (iii) that the interference was
accomplished (or meant to be accomplished) by threats,
intimidation, or coercion. Freeman v. Planning Bd. of W. Boylston,
646 N.E.2d 139, 148-49 (Mass. 1995); Bally v. Ne. Univ., 532 N.E.2d
49, 51-52 (Mass. 1989).8 In this practical progression, the
question of whether the case involves interference is antecedent to
the question of how any interference may have been accomplished.
See, e.g., Korb v. Raytheon Corp., 574 N.E.2d 370, 372-73 (Mass.
1991); cf. Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,
8
The cases cited by the majority, see supra note 1, do not
support a contention that Massachusetts has departed willy-nilly
from this sequence.
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337-38 (Mass. 1996) (recognizing need at least to assume
interference before reaching question of coercion).
The majority inexplicably abandons this measured
framework and jumps to the coercion question. It does so despite
the lack of any treatment of that issue by the district court and
only a passing reference to it by the prevailing parties, who
correctly state that it is unnecessary to deal with the issue.
Ultimately, what emerges is a confused and confusing analysis
regarding the nature of coercion, in which the majority
acknowledges that the SJC's application of that term is unclear,
yet proceeds to rely on a patchwork of marginally relevant state
and federal cases to reach a conclusion that adds little clarity to
the issue. I would take a more direct approach — one that fits
comfortably with the sequence established by Massachusetts
precedent — and dispose of the plaintiff's claim at the
interference step.
The plaintiff, in denouncing O'Reilly's nomination, was
plainly exercising constitutionally guaranteed rights.9 The
logical question then is whether the defendants can be said to have
interfered with the plaintiff's exercise of those rights.
9
In Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888
(1st Cir. 1988) (en banc), we noted that there is a certain
awkwardness in applying the MCRA where free speech rights are
involved. Id. at 904. My view of the interference prong in this
case makes it unnecessary to probe the implications of this uneasy
fit.
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Of course, an adverse employment action may, in certain
circumstances, constitute interference with the exercise of
constitutional rights. See, e.g., Foote v. Town of Bedford, 642
F.3d 80, 83 (1st Cir. 2011); Barton v. Clancy, 632 F.3d 9, 29 (1st
Cir. 2011); see also Poh v. Mass. Corr. Officers Federated Union,
No. 1:03-cv-11987, 2006 WL 1877089, at *6 (D. Mass. July 7, 2006)
(making this observation under MCRA). In an effort to bring his
case within this sphere, the plaintiff tries to draw a line in the
sand between at-will employees and persons employed under
contracts. His thesis is that termination of a person within the
former group cannot amount to interference while termination of a
person within the latter group categorically amounts to
interference. That thesis is incorrect.
It is true that an at-will employee normally will be
unable to demonstrate the type of entitlement to continued
employment sufficient to support an MCRA claim. See, e.g., Webster
v. Motorola, Inc., 637 N.E.2d 203, 206 (Mass. 1994); Korb, 574
N.E.2d at 372. It does not follow, however, that the mere
existence of an employment contract establishes that the firing of
the contract-holder amounts to interference. The interference
inquiry is functional, not formalistic. Termination of employment
can only interfere with the exercise of protected rights to the
extent that the plaintiff has an entitlement to ongoing employment.
See Buster v. George W. Moore, Inc., 783 N.E.2d 399, 410 (Mass.
-24-
2003); Korb, 574 N.E.2d at 372 n.3; see also Poh, 2006 WL 1877089,
at *6.
Different contracts have different permutations, and an
individual who is employed under a particular contract may be
unable to show interference if, say, the terms of the contract
afford the employer a valid reason for terminating the contract.
See Willitts v. Roman Cat. Archbishop of Bos., 581 N.E.2d 475, 480
(Mass. 1991) (finding "no improper interference" where employer
"exercised its discretion" in deciding not to renew an expiring
employment contract). In other words, the exercise of a legitimate
cause for termination under the terms of an employment contract
eliminates any right to continued employment and, thus, eliminates
any possibility of the sort of interference with that right
required by the MCRA. It is hard to imagine a better illustration
of this precept than a situation in which the contract confers upon
the employer the sole discretion to terminate.10
The rest is child's play. Under Massachusetts law,
courts are charged to interpret a contract "according to its plain
10
The majority is concerned that the approach I take "mak[es]
judgments about contracts that offer more protection to their
employees than the one at issue here" and "disregards our
obligation in diversity cases to resolve state law questions
narrowly." Supra, pp. 20-21. To the contrary, my approach is
appropriate here precisely because the contract in this case
uniquely functions like an at-will contract, making the application
of Massachusetts precedent in that area compelling. Because this
approach applies state law by direct analogy, it is necessarily
narrow — much more so than the majority's speculative attempt to
unravel the meaning of coercion.
-25-
meaning." S. Union Co. v. Dep't of Pub. Utils., 941 N.E.2d 633,
640 (Mass. 2011). The interpretation of an unambiguous contract is
a matter of law for the court. Seaco Ins. Co. v. Barbosa, 761
N.E.2d 946, 951 (Mass. 2002). So, too, is the determination as to
whether a contract contains an ambiguity. Bank v. Thermo Elemental
Inc., 888 N.E.2d 897, 907 (Mass. 2008).
Gauging the existence of an ambiguity requires an
objective reading of the text of the contract; "an ambiguity is not
created simply because a controversy exists between parties, each
favoring an interpretation contrary to the other." Lumbermens Mut.
Cas. Co. v. Offices Unltd., Inc., 645 N.E.2d 1165, 1168 (Mass.
1995). To be ambiguous, the language, fairly read, must be
"susceptible of more than one meaning." Id.
The key provision of the Agreement is paragraph 6(b)(v).
With respect to that paragraph, the plaintiff asserts that there
remain "genuine issues of material fact as to whether [he] was
insubordinate, whether he breached his employment agreement, and
whether he publicly acted contrary to Comcast's business
interests." Appellant's Br. at 18. This assertion fails because
the factual disputes that the plaintiff identifies are not
material. The plain language of paragraph 6(b)(v) designates
Comcast as the sole arbiter of whether the plaintiff's actions
reflected unfavorably on Comcast's interests or reputation (and,
thus, warranted termination). The paragraph twice notes that
Comcast's "sole and absolute judgment" controls decisions of this
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type. In light of that language, it is beyond peradventure that
Comcast validly invoked its authority under paragraph 6(b)(v) when
it cashiered the plaintiff.
For present purposes, the only relevant question is
whether Comcast determined that the plaintiff's conduct violated
paragraph 6(b)(v). There is no room to doubt either that Comcast
made such a determination or that it timely communicated this
determination to the plaintiff. Once Comcast ended the plaintiff's
employment in conformity with this contractual provision, his right
to continued employment was extinguished.
That effectively ends the matter. The warrantable loss
of the right to continued employment under the Agreement destroyed
the necessary predicate for maintaining an action under the MCRA.
Simply put, there was no interference with any protected right.
There is nothing fundamentally unfair about this outcome.
The plaintiff, a highly compensated individual in a highly visible
position, bargained for and accepted an arrangement that gave his
employer unfettered discretion in such matters. He knew from the
start that Comcast's "sole and absolute judgment" would determine
when and whether paragraph 6(b)(v) would apply.
The upshot is that, under the Agreement, Comcast was free
to discharge the plaintiff if, in its sole judgment, his conduct
impaired the company's interests. Its exercise of that prerogative
did not interfere with any right protected by the MCRA, and I would
affirm the entry of summary judgment on this ground.
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