Eaton v. Town of Townsend

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

Nos. 22-1334, 22-1335

ROBERT M. EATON,

Plaintiff, Appellant,

v.

TOWN OF TOWNSEND; JAMES M. KREIDLER; GORDAN CLARK; CINDY KING;
CAROLYN SMART,

Defendants, Appellees.

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

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Gelpí, Lynch, and Thompson,
Circuit Judges.

Leon Richard LeClair, III, with whom LeClair & LeClair, P.C.
was on brief, for appellant.
Gareth W. Notis, with whom Francesca L. Cone and Morrison
Mahoney LLP were on brief, for appellees Town of Townsend, James
M. Kreidler, Cindy King, and Carolyn Smart.
Christine Ann Maglione, with whom Harrington Rice & Maglione,
LLC was on brief, for appellee Gordan Clark.
May 9, 2023
 GELPÍ, Circuit Judge. This case stems from Plaintiff-

Appellant Robert Eaton's ("Eaton") termination from his position

as chief of police of the Townsend Police Department ("TPD").

Eaton sued his former employer, the Town of Townsend, Massachusetts

("Town" or "Townsend"); Townsend's Town Administrator ("TA"),

James Kreidler ("Kreidler"); and all three then-members of

Townsend's Board of Selectmen ("BOS"): Gordan Clark ("Clark"),

Carolyn Smart ("Smart"), and Cindy King ("King") -- collectively,

they are the Defendants-Appellees ("Defendants"). On appeal,

Eaton contends that genuine disputes of material fact exist as to

his contract, due process, disability discrimination, and tort

claims, and thus the district court erred in granting summary

judgment in favor of Defendants. Our close review of the

substantial record in this matter reveals that entry of summary

judgment on each claim was proper and, accordingly, we affirm.

I. Background

A. Facts

When reviewing a summary judgment decision, we recite

the facts in the light most favorable to the nonmovant -- here,

Eaton. See Thompson v. Gold Medal Bakery, Inc., 989 F.3d 135, 138

(1st Cir. 2021). We first outline Townsend's basic government

structure, then recount the salient details of Eaton's employment

with the Town and his eventual termination, and finally, describe

the case's procedural history before it arrived to us on appeal.

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 1. Townsend's Government Structure

In Townsend, the BOS is the Town's chief executive office

and has the authority to establish policies for all other town

agencies. At all times relevant to this case, the members of the

BOS were Clark, Smart, and King. Townsend's Charter directs the

BOS to act "through the adoption of broad policy guidelines that

are to be implemented by officers and employees serving under it"

and prohibits the BOS from "becom[ing] involved in the day-to-day

administration of any town agency." However, the BOS is empowered

to "make investigations and may authorize the Town Administrator

to investigate the affairs of the Town and the conduct of any Town

Agency." Per the Charter, the TA -- who during the entirety of

Eaton's tenure was Kreidler -- is, among other duties,

"responsible to the Board of Selectmen for the administration of

all Town affairs" authorized by or under the Charter.

The BOS, excluding Clark, interviewed Eaton for the

chief of police position during a public meeting on February 9,

2016. Clark recused himself from the hiring process because his

wife, a former TPD employee, had a then-pending employment

discrimination claim against the Town. On March 24, 2016, Eaton

signed a contract with Townsend to serve as the chief of police

for a three-year term beginning on May 1, 2016.

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 2. Eaton's Employment Contract

Per the terms of his contract, Eaton was the "commanding

officer of all police and communications personnel," was in "direct

charge of all law enforcement and communications activities of the

Town," and was to "administer the Police and Communications

Departments under the direction of the [BOS] in accordance with

M.G.L. c. 41, Section 97A." Chapter 41 of the Massachusetts

General Laws governs officers and employees of cities, towns, and

districts, while section 97A -- referred to by the parties as the

"strong chief" statute -- specifically provides that the chief of

police (in a town, like Townsend, that has adopted the statute)

shall be appointed by the town's BOS for a term of up to three

years and may be removed for cause after a hearing. Mass. Gen.

Laws ch. 41, § 97A. The statute also authorizes the chief to

create police department regulations, subject to approval by the

BOS, and establishes that the chief is in "immediate control of

all town property used by the department, and of the police

officers, whom he shall assign to their respective duties and who

shall obey his orders." Id. In addition to these statutory

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mandates, Eaton's contract obligated him to perform his duties in

accordance with a job description provided by the Town.1

In addition to detailing Eaton's duties, his contract

described his rights related to discipline, removal, and

termination. Specifically, Townsend needed just cause to

discipline, suspend, or remove Eaton, and removal required a

majority vote by the BOS after a hearing. Eaton was entitled to

be represented by counsel at his own expense during any

disciplinary proceeding and to at least ten business days' written

notice explaining the action being taken, the cause of said action,

the dates and times of all alleged offenses, and the date and time

of the hearing. The contract defines "just cause" as:

i) Conviction of the Chief of any crime
(whether a felony or a misdemeanor) involving
moral turpitude, malfeasance, misfeasance or
misprision in office;

ii) [f]ailure to administer and manage the
Police Department in an efficient, responsible
manner;

iii) [f]ailure after written warning to carry
out the duties and responsibilities of Chief;

iv) [a]ny other just cause.

1 Eaton's contract referenced a job description dated
September 4, 2001, however, the job description Eaton acknowledged
receiving when he began his employment was dated March 25, 2012.
Because our conclusions do not turn on which job description
controlled, we need not go further.

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 3. Eaton's Employment

On May 1, 2016, Eaton's term as chief of police began.

Throughout his employment, he routinely met with TA Kreidler, who

informed Eaton that all Town department heads report to him and

that he "act[s] like a filter to the BOS." During these meetings,

Kreidler would relay concerns raised by Smart and Clark about the

TPD, make "scandalous accusations" against former chiefs, and

complain about certain TPD employees. Kreidler would also

insinuate to Eaton that the BOS was not happy with his

performance -- specifically, Clark, because Eaton had not demoted

Lieutenant Giancotti (who was involved in Clark's wife's case) -

- and that he may not make it through his six-month probationary

period.

Prior to his start date, Clark had met with Eaton and

requested certain personnel changes within the TPD. Eaton believed

that Clark's complaints and requests were motivated by a desire to

retaliate against members of the TPD who were involved in Clark's

wife's employment issues. On separate occasions, Eaton informed

both Clark and Kreidler that the requests were inappropriate and

told Clark that his involvement in TPD matters created a conflict

of interest. Eaton later shared his concerns about Clark and

Kreidler's "continuous interference [into] the daily operations of

the TPD" with Smart and King. During roughly this same period of

time, Eaton received a text message and an email from Smart

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expressing frustration over social media posts related to a

movement to recall Smart and Clark.

4. CORI Investigation

In October 2016, during a meeting with Smart, Eaton

revealed that he had received a package of information concerning

Kelly Merrill ("Merrill") -- Kreidler's new administrative

assistant -- and Merrill's boyfriend, Adam Cotty ("Cotty"), who

had recently been released from jail and was on parole. Sergeant

Girard provided the documents to Eaton, which consisted of an

internal TPD database report on Merrill and a Criminal Offender

Record Information ("CORI") report on Cotty. Eaton contends that

he never showed or gave Smart the documents, however, he admits to

telling her that the TPD had had numerous interactions with

Merrill, including a well-being check related to her drug use, and

that Cotty had numerous convictions and was on parole. After the

meeting with Eaton, Smart reached out to Attorney David Jenkins

("Jenkins"), Town Counsel for Townsend, to inquire whether the TPD

should be running CORI checks on Town employees.

After speaking with Smart, Jenkins informed Eaton that

he believed that the CORI check had not been run for a law

enforcement purpose and thus was illegal. Eaton disagreed and

told Jenkins that "[t]he information that [he] provided to Smart

was in the best interest of the community, that public employees

have to be held to a higher standard and they must be properly

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vetted to be trusted." Jenkins requested that Eaton perform a

Criminal Justice Information Services ("CJIS") audit to determine

which police officers had run CORI checks on Merrill and Cotty (we

hereafter refer to this audit as the "CORI matter" or CORI

investigation"). On November 22, 2016, Eaton sent his report on

the CJIS audit to Jenkins. In response, Jenkins requested follow

up, including a copy of the audit, the names of the involved

officers and dates of the inquiries, and that each involved officer

produce a report.

Later that same day, Eaton attended a BOS meeting

expecting to receive a performance review and to discuss his $5,000

bonus. Smart explained that, based on Jenkins's advice, they could

not discuss his contract or bonus because of "what [he] was working

on with Attorney Jenkins." Eaton became frustrated, placed his

hat and badge on the BOS's table, and said, "Here you go. Is this

what you want?" before leaving the meeting. The next day, despite

telling Smart that he would pick up his hat and badge, the Town

issued a press release stating that Eaton had resigned and

providing information related to the CORI investigation. The Town

subsequently issued a press release clarifying that Eaton had not

resigned and stating that "Town Counsel has been empowered to

address all pending matters in the [TPD] and the Chief has been

directed to immediately comply with all of Counsel's directives."

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 Following the November BOS meeting, Eaton continued his

term as chief of police. On December 14, 2016, Eaton was

instructed by Kreidler (at the direction of the BOS) to have the

employees involved in the CORI matter appear for disciplinary

hearings.2 Before the hearings, Eaton objected to any disciplinary

action being taken because he had not yet completed his

investigation into the CORI issue. Jenkins then informed Eaton

that he was conducting the CORI investigation, not Eaton.

Nevertheless, Eaton continued his investigation into the

CORI matter by continuously communicating with officials from

DCJIS and obtaining information from the involved officers. On

January 30, 2017, Jenkins informed Eaton that he was directed by

the BOS to investigate the CORI issue and that if Eaton had

questions, that he should contact Kreidler -- which Eaton admits

that he did not do, and on January 31, 2017, Jenkins emailed Eaton

again, reiterating that the BOS had directed Jenkins to investigate

the CORI matter, and directing Eaton to discontinue his separate

investigation. Despite Jenkin's instructions, Eaton admits to

continuing his investigation by speaking to DCJIS officials

throughout late January and early February 2017. On February 8,

2017, Eaton received a report from DCJIS related to the CORI matter

Sergeant Girard, one of the officers flagged during the CJIS
2

audit, was placed on administrative leave during the hearing and
ultimately resigned.

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that stated that, with the exception of a query performed by a

dispatcher on September 27, 2016, the identified transactions

appeared to have been run for authorized law enforcement purposes.

Eaton forwarded the report to Jenkins, who responded that "the

investigation is ongoing," "until it is completed all the documents

associated with this matter continue to be confidential," and that

neither the "report nor the substance of the report should be

released to anyone." Jenkins, once again, instructed Eaton to

"not take any action in connection with the investigation."

5. BOS Memo and Press Release

At 2:40 p.m. on February 10, 2017, Eaton, believing that

he "needed to take action to protect the TPD and the public trust

in the TPD," sent the BOS a memorandum explaining why he conducted

an independent investigation, and stating, in part, the following:

It is clear that the investigation being
conducted by the [Townsend BOS/TA] is a
strategic assassination of the department, the
police officers [sic] reputations and their
character. The ordering of your investigation
is a calculated and orchestrated maneuver to
disparage and dismantle the entire
department. . . . During your investigation,
I have fully complied with all requests from
David Jenkin[s] Esq. . . . I am requesting
immediate action which is listed below from
the [BOS] . . . . [Sergeant Randy Girard]
shall be reinstated and made whole by giving
him his rank, time in grade and compensated
[sic] for all time lost. . . . It is further
requested that a public statement be made by
you and your office by today, Friday,
February 10, 2017 at 5:00PM EST exonerating
all 3 [Townsend] Police Officers and me as the

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 Chief of Police . . . . Failure to do so will
result in a public statement by me as the Chief
of Police in the form of a written press
release.

At 5:02 p.m. that same day, Eaton published the press release,

which closely mirrored the memorandum sent to the BOS, and included

the statement that Eaton "h[ad] fully complied with all requests

from the [Townsend] legal counsel." Eaton was immediately placed

on paid administrative leave.

6. Eaton's Medical Treatment

While out on administrative leave, Eaton was admitted to

McLean Hospital, where he received inpatient treatment for his

post-traumatic stress disorder ("PTSD"), alcohol abuse,

depression, and anxiety. Following his discharge on March 1, 2017,

Eaton continued receiving outpatient treatment, and, on March 28,

2017, when he appeared to be interviewed by Jenkins in connection

with the CORI matter, he presented doctors' notes, one of which

stated that it was the doctor's "recommendation that [Eaton] not

testify or answer questions at any hearing until he completes his

current treatment."

7. Eaton's Disciplinary Notice

On April 6, 2017, the BOS met in an executive session to

discuss Eaton's employment. During the meeting, Jenkins presented

findings of fact pertaining to Eaton's conduct leading up to and

during the CORI investigation. The BOS voted to accept Jenkins's

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factual findings and to issue a disciplinary hearing notice to

Eaton. Eaton received the disciplinary hearing notice by email on

April 6, 2017, and by constable delivery on April 7, 2017. The

notice, which scheduled his disciplinary hearing for April 21,

2017, detailed the complained of actions, provided a date range

for when the actions occurred, and listed TPD rules that the

actions, if proven, may have violated. In a letter to the BOS

dated April 14, 2017, Eaton challenged the sufficiency of the

notice because it "d[id] not include the dates and times of all

alleged offenses" and requested a continuance based on a conflict

with his attorney's trial schedule. Kreidler denied his request

for a continuance because the request did not come from Eaton's

attorney directly and because the basis of the conflict was

inadequately explained. Eaton's attorney never followed up with

a direct request for a continuance.

8. Eaton's Termination

On April 21, 2017, Eaton appeared for his disciplinary

hearing with his attorney, who requested a continuance given

Eaton's PTSD. In support of his request, Eaton's attorney produced

three notes from Eaton's doctors stating that he was receiving

treatment for PTSD -- including the note that recommended that

Eaton not testify or answer questions at a hearing until his

treatment was complete. The BOS voted unanimously to proceed with

Eaton's termination hearing. Eaton contends that if the hearing

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had been postponed, he would have been able to properly assist his

attorney in preparing a response and that he would have been able

to testify at the hearing.

Following the vote, Jenkins presented his proposed

findings of fact and thirty-four supporting exhibits, which

included copies of Jenkins's email exchanges with Eaton relative

to the CORI matter, Eaton's memorandum to the BOS, and a printout

from the TPD's Facebook page where Eaton's press release was

posted. Jenkins informed the BOS that they were not bound by his

findings of fact, that they were just guidance, and that the BOS

should decide the facts based on the evidence. Eaton contends

that during Jenkins's presentation, King was looking at her

computer and Smart had her head on the desk and appeared

uninterested.

Next, Eaton's attorney presented. He began by

reiterating that Eaton's doctor had restricted his ability to

defend himself at the hearing. Jenkins then offered Eaton the

opportunity to make a verbal statement without being subject to

cross-examination or to submit a written statement, like Eaton had

prepared a few days prior in a former TPD employee's employment

case. Eaton's attorney requested three weeks to prepare a written

statement, and Eaton contends that Jenkins responded that he could

have ten minutes. The BOS's meeting minutes only state that

Jenkins responded "today" and that he recommended that the BOS not

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continue the hearing. Eaton's attorney declined both of Jenkins's

offers. The BOS's report of the hearing indicates that Eaton's

attorney introduced sixteen exhibits, which included notes from

Eaton's doctors, the DCJIS report, and the internal investigation

report from Lieutenant Giancotti, among other evidence.

Following the conclusion of Eaton's attorney's

presentation, the BOS voted unanimously, and without discussion,

to adopt the findings of fact and exhibits as presented. The BOS

then unanimously voted, again without discussion, that the

findings of fact and exhibits constituted violations of Eaton's

employment contract and TPD rules and regulations. Finally, the

BOS voted unanimously, and again without discussion, that just

cause existed to terminate Eaton's contract effective immediately

based on the findings of fact, which established rule and contract

violations.

On May 4, 2017, Eaton received a report of the hearing

and notice of termination from the BOS. The notice recited the

evidence presented at Eaton's termination hearing and the BOS's

factual findings from the hearing, before specifying the rules and

contract provisions that the BOS found Eaton had violated, along

with the corresponding conduct. Among its findings, the BOS

concluded that Eaton was insubordinate in having continued his

personal investigation after being ordered to stop, that he was

insubordinate to the BOS in issuing them an unprofessional

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ultimatum demanding certain action, and that Eaton was untruthful

when he stated in his press release that he had complied with all

of Jenkins's requests.

B. Procedural History

Eaton filed two separate actions in Massachusetts

Superior Court following his termination: The first was against

Townsend, Kreidler, and Clark, and the second was against King and

Smart. The cases were removed to federal court and consolidated.

The district court granted, in part, the Defendants' motion to

dismiss, which left the following claims: breach of contract

(Townsend); breach of the covenant of good faith and fair dealing

(Townsend); disability discrimination under the Americans with

Disabilities Act ("ADA") and chapter 151B, section 4 of the

Massachusetts General Laws (Townsend); retaliation under the ADA

and chapter 151B, section 4 of the Massachusetts General Laws

(Townsend); procedural due process violation (Townsend, King,

Smart, and Clark); and intentional interference with a contractual

relationship (Kreidler and Clark). On March 30, 2022, the district

court granted summary judgment in favor of the Defendants on the

remaining claims, which were then dismissed with prejudice. This

timely appeal followed.

II. Standard of Review

"We review a district court's grant of summary judgment

de novo" and will affirm "only if 'there is no genuine dispute as

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to any material fact and the movant is entitled to judgment as a

matter of law.'" Triangle Cayman Asset Co. v. LG & AC, Corp., 52

F.4th 24, 32 (1st Cir. 2022) (quoting Fed. R. Civ. P. 56(a)). A

fact is material when it has "the 'potential to affect the outcome

of the suit under the applicable law,'" and "[a] dispute is

'genuine' if 'the evidence about the fact is such that a reasonable

jury could resolve the point in the favor of the non-moving

party.'" Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24 (1st

Cir. 2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st

Cir. 1996)). While we draw all reasonable inferences in favor of

the nonmovant -- here, Eaton -- we need not "credit bald

assertions, empty conclusions, rank conjecture, or vitriolic

invective." Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d

1, 8 (1st Cir. 2007).

III. Discussion

A. Breach of Contract Claim Against Townsend

We begin with Eaton's breach of contract claim under

Massachusetts law. To prevail, "a plaintiff must demonstrate that

there was an agreement between the parties; the agreement was

supported by consideration; the plaintiff was ready, willing, and

able to perform his or her part of the contract; the defendant

committed a breach of the contract; and the plaintiff suffered

harm as a result." Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39

(Mass. 2016). "[J]ust cause [for termination] is an affirmative

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defense" to a breach of contract claim, Goldhor v. Hampshire Coll.,

521 N.E.2d 1381, 1385 (Mass. App. Ct. 1988), and thus the burden

of proof rests with the defendant -- here, Townsend, see Chaplain

v. Dugas, 80 N.E.2d 9, 11 (Mass. 1948). In evaluating just cause,

courts consider "whether there existed . . . a reasonable basis

for employer dissatisfaction with a new employee, entertained in

good faith, for reasons such as lack of capacity or diligence,

failure to conform to usual standards of conduct, or other culpable

or inappropriate behavior." Joyal v. Hasbro, Inc., 380 F.3d 14,

21 (1st Cir. 2004) (quoting G & M Emp. Serv., Inc. v. Commonwealth,

265 N.E.2d 476, 480 (Mass. 1970)). "Discharge for a 'just cause'

is to be contrasted with discharge on unreasonable grounds or

arbitrarily, capriciously, or in bad faith." Id. (quoting G & M

Emp. Serv., Inc., 265 N.E.2d at 480).

On appeal, Eaton claims that there are disputes of

material fact as to whether Townsend possessed just cause for his

termination. Specifically, he contends that a reasonable jury

could conclude that (1) Townsend acted in bad faith in terminating

him because most of the BOS's findings of fact are "patently false"

and (2) that his memorandum to the BOS was reasonable, necessary,

and did not contain false statements.

Eaton's arguments fail to persuade us. Although Eaton

claims that the BOS's findings of fact are mostly false, and thus

evidence the BOS's bad faith, he notably does not contest the facts

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that the district court supportably relied on in finding that

Townsend had just cause for his termination. It is undisputed

that Eaton sent the BOS a memorandum, which he published publicly

hours later, demanding that they take certain actions by 5:00 p.m.

that same day and stating that he had complied with all of

Jenkins's requests. The BOS found these facts to be true;

determined that Eaton was insubordinate in issuing the BOS an

unprofessional memorandum containing an ultimatum and untruthful

in his statement in the press release that he complied with all of

Jenkins's requests; and concluded that his actions amounted to

violations of his employment contract and TPD policy -- thus

justifying his termination.3 Given the lack of a factual dispute

over the BOS's good faith, reasonable basis for dissatisfaction

with Eaton, Eaton is left to argue that a reasonable jury could

conclude that his memorandum and press release did not amount to

"inappropriate behavior" providing just cause for his termination.

But his contentions lack support.

3 Eaton argues that he could not be terminated for
insubordinate or unprofessional behavior because the BOS did not
make that finding during his termination hearing. However, Eaton's
contract states only the following: "After any hearing, the [BOS]
must make a written report of the evidence presented and its
findings of fact. No evidence may be relied upon which was not
produced at the hearing." Contrary to Eaton's assertion, his
contract does not require that the BOS make its findings of fact
during his termination hearing. Additionally, all of the evidence
that the BOS relied on for its findings of fact (emails, Eaton's
memorandum and press release) was produced at the hearing, and
thus the BOS complied with the terms of Eaton's contract.

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 Eaton claims that his actions were not inappropriate

because they were necessary to protect his reputation and the

reputation of TPD given that the BOS had publicly defamed TPD and

was engaged in a "strategic assassination of the department, the

police officers' reputations, and their character." Such

conclusory assertions, without more, are properly disregarded for

purposes of summary judgment. See Cabán Hernández, 486 F.3d at 8.

Even so, we fail to see how a reasonable jury could conclude that

Eaton's termination was "arbitrary" or done in "bad faith" -- even

viewing the evidence in the light most favorable to him -- given

that Eaton does not challenge the BOS's conclusion that his

issuance of the ultimatum containing memorandum violated TPD

policy. See Joyal, 380 F.3d at 22 (concluding that no reasonable

jury could find that an employee's discharge was "arbitrary" or

unjustified where he sought to violate company policy).

Next, Eaton asserts that a reasonable jury could find

that his statement -- that he complied with all of Jenkins's

requests -- was not false because his response was limited to a

November 2016 press release that claimed he had refused to turn

over information to Jenkins. Despite his contention on appeal,

Eaton's statement in the memorandum and press release was not so

narrowly stated. As the district court correctly found, the

undisputed evidence establishes that on February 10, 2017, Eaton

had not complied with all of Jenkins requests given that he did

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not cease his personal investigation into the CORI matter, did not

keep the DCJIS report confidential, and continued to take further

action with respect to the investigation.4 Based on the undisputed

evidence, a reasonable jury could come to only one conclusion -

- that Eaton's statement in the memorandum and press release on

February 10, 2017, was false.

Having disposed of Eaton's arguments, we cannot say that

the district court erred in finding that Townsend had met its

burden of establishing just cause for Eaton's termination. Thus,

entry of summary judgment for Townsend was proper.

B. Breach of Covenant of Good Faith and Fair Dealing Against
Townsend

The covenant of good faith and fair dealing is implied

in every Massachusetts contract. See Ayash v. Dana Farber Cancer

Inst., 822 N.E.2d 667, 683 (Mass. 2005). The implied covenant

"provides 'that neither party shall do anything that will have the

effect of destroying or injuring the right of the other party to

receive the fruits of the contract.'" Robert & Ardis James Found.

v. Meyers, 48 N.E.3d 442, 450 (Mass. 2016) (citation omitted).

4 Eaton vigorously argues that, as a "strong chief," the BOS
and Jenkins had no authority to stop his investigation or prevent
him from issuing a press release, and that Jenkins was never
properly authorized by a BOS vote to conduct the CORI
investigation. Eaton's contentions, however, have no bearing on
whether he made a false statement regarding his compliance with
Jenkins's requests and whether he behaved unprofessionally in
issuing the BOS an ultimatum.

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Because "[t]he scope of the covenant is only as broad as the

contract that governs the particular relationship," Ayash, 822

N.E.2d at 684, the covenant may not be "invoked to create rights

and duties not otherwise provided for in the existing contractual

relationship," Uno Rests., Inc. v. Bos. Kenmore Realty Corp., 805

N.E.2d 957, 964 (Mass. 2004). "[T]he plaintiff has the burden of

proving a lack of good faith," which may be "inferred from the

totality of the circumstances." T.W. Nickerson, Inc. v. Fleet

Nat'l Bank, 924 N.E.2d 696, 704 (Mass. 2010) (explaining that there

is "no requirement that bad faith be shown").

Here, Eaton appears to contend that Townsend breached

his employment contract's implied covenant by terminating him in

bad faith and that, because bad faith is a question of fact,

summary judgment was improper. Under Massachusetts law, "a

termination not made in good faith constitutes a breach of the

contract." Fortune v. Nat'l Cash Reg. Co., 364 N.E.2d 1251, 1256

(Mass. 1977). However, as discussed supra, undisputed facts

establish that Townsend had just cause for Eaton's termination

(based on his memorandum to the BOS giving them an ultimatum and

false statement in his press release), and just cause itself

requires an employer to act in good faith in terminating the

employee, see Joyal, 380 F.3d at 21 (citation omitted).

Further, no reasonable jury could find that the BOS

lacked good faith in terminating Eaton based on his asserted "bad

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faith" facts. Eaton contends that Clark and Kreidler sought to

interfere with the day-to-day operations of the police department;

that he never received his performance review; that the BOS never

voted on whether to approve his bonus; that false and defamatory

press releases were published about Eaton and the TPD; and that

Jenkins sought to interfere with his lawful investigation into the

CORI matter. Drawing all inferences in Eaton's favor, these facts

establish, at most, that Townsend treated Eaton unfairly during

his term of employment. However, as the district court correctly

noted, unfair treatment is insufficient to establish a breach of

the implied covenant of good faith and fair dealing claim. See

Ayash, 822 N.E.2d at 684 (noting that an employer has no general

duty to act "nicely" and that where a plaintiff's claim rests on

allegations of unfair treatment, the plaintiff cannot recover).

To the extent that Eaton contends that Townsend's lack

of good faith in terminating him is established by the BOS's

wrongful refusal to continue Eaton's disciplinary hearing or by

Clark and Smart voting to terminate him based on personal animus,

his claim also fails. The undisputed evidence establishes that

Eaton's attorney never directly requested a continuance based on

a scheduling conflict and that Eaton's request for a continuance

based on his PTSD was made the morning of the hearing, without

adequate explanation for why Eaton could not participate

meaningfully through his attorney or a written statement.

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Additionally, Eaton's assertion that Clark and Smart voted to

terminate Eaton based on personal animus is, without more, the

type of "empty conclusion[]" disregarded at summary judgment. See

Cabán Hernández, 486 F.3d at 8. Based on the foregoing, the

district court did not err in entering summary judgment for

Townsend on Eaton's implied covenant claim.

C. Due Process Claim Against Townsend, King, Smart, and Clark

"[P]ublic employees[,] who can be discharged only for

cause[,] have a constitutionally protected property interest in

their tenure and cannot be fired without due process." Gilbert v.

Homar, 520 U.S. 924, 928-29 (1997). Here, it is undisputed that

Eaton had a property interest in his employment. Thus, the only

dispute is whether Townsend provided Eaton with due process before

terminating him.

"The fundamental requirement of due process is the

opportunity to be heard 'at a meaningful time and in a meaningful

manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). "[P]ublic employees

are ordinarily entitled to notice of the reasons for a proposed

termination, an explanation of the evidence supporting those

reasons, and an opportunity to give their side of the story at a

pre-termination hearing." Jones v. City of Bos., 752 F.3d 38, 56-

57 (1st Cir. 2014). To satisfy due process, said hearing "should

provide 'a meaningful opportunity to invoke the discretion of the

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decisionmaker,' both as to the facts supporting the termination

and as to its broader appropriateness." Id. at 57 (quoting

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985)).

Before us, Eaton does not contest that he received notice

of the termination hearing, a preview of the evidence supporting

the allegations against him, or an opportunity to be heard. He

contends only that his termination hearing was a sham, depriving

him of constitutionally adequate due process, because: (1) the

members of the BOS, who oversaw his termination hearing, were

impermissibly biased against him; (2) the BOS decided to terminate

Eaton prior to his termination hearing; (3) the BOS failed to give

Eaton ten full business days' notice of the termination hearing;

(4) the BOS declined Eaton's requests for a continuance; and

(5) the BOS posted an employment opening for the chief of police

position prior to Eaton's termination hearing. However, none of

Eaton's assertions provide a basis for overturning the district

court's grant of summary judgment.

As to the BOS's alleged bias, Eaton asserts that "a

biased decisionmaker [is] constitutionally unacceptable." But,

Eaton's claim fails because contrary to Eaton's assertion, there

is "not . . . a basic requirement that hearing officers be

impartial in the employment context." Lawless v. Town of Freetown,

63 F.4th 61, 68 (1st Cir. 2023). In fact, an employer, who

initiates an employee's termination, may preside over the

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termination hearing. See id. That is not to say that bias can

never be "so severe as to interfere with due process at the hearing

itself." See Chmielinski v. Massachusetts, 513 F.3d 309, 318 (1st

Cir. 2008). However, a plaintiff "must overcome a presumption of

honesty and integrity in those serving as adjudicators" and

demonstrate "a risk of actual bias or prejudgment," Withrow v.

Larkin, 421 U.S. 35, 47 (1975), which precluded the employee from

"put[ting] his version of the facts before the decisionmaker" or

that resulted in termination on grounds "that could be explained

only by bias," Chmielinski, 513 F.3d at 318. As we discuss below,

Eaton fails to overcome that presumption.

First, Eaton argues that all three members of the BOS

were impermissibly biased because Eaton had publicly and privately

criticized them. However, Eaton raises this argument for the first

time on appeal. Because Eaton fails to point to any "extraordinary

circumstances" that justify us departing from the "bedrock rule

that when a party has not presented an argument to the district

court, [he] may not unveil it in the court of appeals," United

States v. Taylor, 511 F.3d 87, 91 (1st Cir. 2007) (alteration in

original) (quoting United States v. Slade, 980 F.2d 27, 30 (1st

Cir. 1992)), we decline to entertain this claim.

Next, Eaton contends that Smart and Clark's alleged bias

against him establishes that his termination hearing was a sham.

Regarding Smart, Eaton claims that she was biased because she

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believed that members of TPD were supporting the recall movement,

she lied to Eaton on various occasions, and because, as a

percipient witness, she should have been disqualified from

overseeing his termination hearing. However, Smart's alleged bias

against Eaton is not borne out by the record. Smart never accused

Eaton personally of supporting the recall movement and his claim

that she lied to him -- "ma[de] an untrue statement with intent to

deceive," see Lie, The Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/lie (last visited

May 3, 2023) -- is speculative. Although Eaton -- citing Williams

v. Pennsylvania, 579 U.S. 1, 8-9 (2016) (addressing judicial

bias) -- contends that Smart could not oversee his termination

hearing as both an "accuser and adjudicator," he overlooks our

precedent, which establishes that a "termination hearing is not a

court of law, and [that] the same level of process is not

required," Chmielinski, 513 F.2d at 316. He also fails to explain

how the facts of his case are different from the other employment

termination cases where we have held that a terminating employer -

- who bears witness to an employee's improper conduct or deficient

performance and initiates termination proceedings -- may preside

over the termination hearing. See, e.g., Lawless, 63 F.4th at 68;

Chmielinski, 513 F.3d at 318; Acosta-Sepúlveda v. Hernández-

Purcell, 889 F.2d 9, 12 (1st Cir. 1989).

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 As to Eaton's claim that Clark was impermissibly biased,

Eaton points to the fact that his relationship with Clark was

acrimonious. Clark continuously pressured Eaton to demote,

transfer, or not promote certain TPD employees, which he refused

to do; Eaton pointed out that Clark's involvement in TPD matters

created a conflict of interest because of Clark's wife's

discrimination complaint; Clark believed that Eaton or other

members of the TPD were erroneously blaming his wife for

investigations into the department; and Clark's wife's attorney

sent Eaton a cease-and-desist letter. Even crediting Eaton's

asserted facts and the reasonable inferences drawn therefrom,

Eaton fails to demonstrate that any alleged bias by Clark precluded

him from presenting "his side of things to correct errors of fact

on which the termination decision [wa]s based." See Chmielinski,

513 F.3d at 318. Eaton's contract provided for his removal by "a

majority of the members of the [BOS] after a hearing." Thus, even

if we were to assume arguendo that Clark was biased against him,

Eaton cannot establish that his termination hearing was a sham

based on Clark's alleged bias where an unbiased majority of the

BOS still voted to remove him.

Eaton further argues that his termination hearing was a

sham because the BOS made their decision to terminate Eaton prior

to his termination hearing. As support, he cites the BOS's

decision to accept Jenkins's proposed findings of fact related to

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Eaton's alleged misconduct on April 7, 2017 -- prior to his

termination -- and the BOS's acceptance of the same findings of

fact, without discussion, at his termination hearing on April 21,

2017. Eaton also points to Smart and King's alleged inattention

during his termination hearing as evidence that the decision was

predetermined.

However, Eaton's claims fail to find purchase. Our case

law makes clear that even where a termination decision is made by

the decisionmaker prior to a hearing, no "constitutional

infirmity" results where the planned termination is subject to

reconsideration if the employee "contest[s] the validity of the

grounds for termination." See O'Neill v. Baker, 210 F.3d 41, 49

(1st Cir. 2000); see also West v. Hoover, 681 F. App'x 13, 17 (1st

Cir. 2017) (unpublished decision). Here, Eaton fails to "point to

any evidence in the record suggesting that the relevant decision-

maker -- [the BOS members] -- had decided in advance of the pre-

termination hearing that nothing [they] heard there would have

changed [their] mind[s]." See West, 681 F. App'x at 17. Each

member of the BOS testified that they did not make a decision about

Eaton's employment until his termination hearing, and the mere

fact that King was on social media and that Smart had her head on

the desk does not establish that either was unwilling to consider

evidence presented by Eaton. Eaton also argues that it is error

to rely on O'Neill or West because both cases involved post-

- 29 -
termination proceedings. However, Eaton's argument does not

persuade us because our conclusion in both cases -- that no due

process violation arises if a planned termination is subject to

revision -- in no way rested upon the existence of plaintiff's

entitlement to a post-termination hearing. See id.; O'Neill, 210

F.3d at 49.

Eaton further contends that the BOS's failure to give

him a full ten business days' notice of his termination hearing,

per his contract, demonstrates that it was a sham. Eaton admits

to receiving the notice on April 6, 2017, and drawing all

inferences in his favor, including his assertion that Patriot's

Day should not have counted as a business day, Eaton still received

nine business days' notice of his termination hearing and fourteen

days' regular notice. Eaton's notice contention, which he failed

to raise before the BOS, is easily dismissed given that due process

only requires notice that provides "a reasonable time for those

interested to make their appearance." See Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 314 (1950); Cepero-Rivera v. Fagundo,

414 F.3d 124, 134-35 (1st Cir. 2005) (concluding that the plaintiff

received adequate notice when he received a letter from his

employer fifteen days before his termination hearing). No

reasonable jury could conclude that Eaton's termination hearing

was a sham on this basis.

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 Nor does the BOS's refusal to continue Eaton's

termination hearing demonstrate that the same was a sham. Despite

his contentions, the undisputed evidence establishes that Eaton,

and not his attorney, requested a continuance based on his

attorney's trial schedule. After the continuance was denied

because Eaton's attorney had not communicated the request directly

or adequately explained the scheduling conflict, Eaton's attorney

never reiterated the request for a continuance.

Eaton next alleges that the BOS's refusal to continue

his termination hearing based on his then-ongoing PTSD treatment

establishes that the hearing was a sham. Per Eaton, the BOS knew

that he was undergoing treatment and "did not care that Eaton would

not be able to articulate his side of the story." His assertions

fall short for a number of reasons. Namely, Eaton never requested

a continuance based on his then-ongoing PTSD treatment until the

day of his termination hearing; the medical documentation Eaton

provided only recommended that "he not testify or answer questions

at any hearing" and it is undisputed that he was offered the

opportunity to submit an affidavit, which he had done days earlier

in support of another officer; and Eaton was represented by

counsel, who had an opportunity to present evidence on Eaton's

behalf (and did so), and nothing in the medical documentation

indicated that Eaton's condition prevented him from communicating

with his attorney. See Calderón-Garnier v. Rodríguez, 578 F.3d

- 31 -
33, 38-39 (1st Cir. 2009) (finding no due process violation where

plaintiff could not attend pre-termination hearing because

"[t]here is nothing in the record to suggest plaintiff was so

incapacitated that he could not communicate with his lawyer to

make arguments on his behalf" and because "due process does not

impose a strict requirement that plaintiff must be present at a

pre-termination hearing"); see also Cepero-Rivera, 414 F.3d at 135

(concluding that plaintiff received the process due to him when he

was given an opportunity to attend his pre-termination hearing but

"chose to present his arguments in writing"). Given that "the

Constitution requires only an initial check against erroneous

decisions, not that the [employer] follow best practices,"

O'Neill, 210 F.3d at 49 n.10, the BOS denying Eaton's request for

a continuance does not create a triable issue of fact that his

hearing was a sham.

Finally, Eaton asserts that the BOS posting the chief of

police position prior to his termination hearing and signing a

contract with a new chief four days after his termination hearing

demonstrates that it was a sham. However, Eaton does not point to

any evidence establishing if and when the position was posted and

nothing about the BOS signing a contract for an interim chief after

Eaton's termination demonstrates that the BOS's decision four days

earlier, even assuming it was predetermined, was not subject to

revision. See id. at 49 (concluding that actions taken by an

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employer in preparation for an employee's planned termination did

not violate due process where the termination decision remained

subject to revision).

Because a reasonable jury could not conclude that

Eaton's termination hearing was a sham based on his asserted facts,

summary judgment for the Defendants was proper.

D. Disability Discrimination Claim Against Townsend

Eaton next claims that Townsend failed to continue his

termination hearing as an accommodation to his disability. To

withstand summary judgment on a failure-to-accommodate claim, "a

plaintiff must point to sufficient evidence showing that (a) []he

is disabled within the ADA's definition; that (b) []he could

perform the job's essential functions either with or without a

reasonable accommodation; and that (c) the employer knew of h[is]

disability, yet failed to reasonably accommodate it." Lang v.

Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016). The

second prong requires a plaintiff to show "that []he possesses the

requisite skill, experience, education and other job-related

requirements for the position" and "that []he is able to perform

the essential functions of the position with or without reasonable

accommodation." Echevarría v. AstraZeneca Pharm. LP, 856 F.3d

119, 126 (1st Cir. 2017) (quoting Mulloy v. Acushnet Co., 460 F.3d

141, 147 (1st Cir. 2006)). "The plaintiff bears the burden of

showing the existence of a reasonable accommodation." Id. at 127.

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 On appeal, Eaton contends that a reasonable jury could

find that Townsend violated the ADA and chapter 151B, section 4 of

the Massachusetts General Laws when the BOS denied his request to

continue his termination hearing for six weeks as a reasonable

accommodation to his disability -- his PTSD. However, he fails to

offer any evidence demonstrating that the accommodation he sought

would have enabled him to perform the essential functions of the

chief of police position. Instead, Eaton focuses exclusively on

the fact that, had the continuance been granted, he "would have

been able to properly assist his attorney in preparing his

response" and "able to testify at the hearing, publicly

demonstrating that he should not be terminated, thereby repairing

his reputation." Eaton merely repackages a due process argument

as a disability claim. Thus, we need not reach Eaton's claim that

his request for an accommodation was timely and reasonable where

he fails to develop any argument that said accommodation was in

some way connected to the essential functions of his job. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[W]e

see no reason to abandon the settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."). Summary

judgment for Townsend on Eaton's disability claim was proper.

- 34 -
 E. Tortious Interference Claim Against Kreidler and Clark

To survive summary judgment on a tortious interference

with contractual relations claim under Massachusetts law, a

plaintiff must offer sufficient evidence that: "(1) he had a

contract with a third party; (2) the defendant knowingly

interfered with that contract . . . ; (3) the defendant's

interference, in addition to being intentional, was improper in

motive or means; and (4) the plaintiff was harmed by the

defendant's actions." Pierce v. Cotuit Fire Dist., 741 F.3d 295,

304 (1st Cir. 2014) (omission in original) (quoting O'Donnell v.

Boggs, 611 F.3d 50, 54 (1st Cir. 2010)); see also Psy-Ed Corp. v.

Klein, 947 N.E.2d 520, 536 (Mass. 2011) (citation omitted) (same).

A plaintiff cannot bring an interference claim against his own

employer but may raise such a complaint against an "individual

official of the employer" if he can establish that the "individual

official" induced the employer to breach plaintiff's employment

contract with actual malice. See Pierce, 741 F.3d at 304; Psy-Ed

Corp., 947 N.E.2d at 537; Blackstone v. Cashman, 860 N.E.2d 7, 17

(Mass. 2007).

"Proof of actual malice requires more than a showing of

mere hostility." Zimmerman v. Direct Fed. Credit Union, 262 F.3d

70, 76 (1st Cir. 2001); see King v. Driscoll, 638 N.E.2d 488, 495

(Mass. 1994) (explaining that "personal dislike will not warrant

an inference of the requisite ill will"). A plaintiff must prove

- 35 -
that malice, or "a spiteful, malignant purpose," see Psy-Ed Corp.,

947 N.E.2d at 538 (citation omitted), "was the controlling factor

in the [official]'s interference." See Zimmerman, 262 F.3d at 76;

Alba v. Sampson, 690 N.E.2d 1240, 1243 (Mass. App. Ct. 1998). A

showing of malice must be "probab[le] rather than possib[le]' and

the evidence must suggest that "the [official]'s actions 'were not

derived from a desire to advance the employer's legitimate business

interests.'" Pierce, 741 F.3d at 304-05 (alteration in original)

(quoting Zimmerman, 262 F.3d at 76-77); see also Gram v. Liberty

Mut. Ins. Co., 429 N.E.2d 21, 24-25 (Mass. 1981); Psy-Ed Corp.,

947 N.E.2d at 536.

Here, Eaton contends that a reasonable jury could find

that Kreidler and Clark acted with actual malice in interfering

with his employment contract. As to Clark, Eaton contends that

actual malice could be inferred from Clark's attempted

interference with the TPD and from Clark and Eaton's repeated

confrontations over the same. He alleges that a reasonable jury

could conclude that Clark voted to terminate Eaton's employment in

retaliation for his refusal to exact revenge against Clark's wife's

"alleged tormentors" and because Eaton privately and publicly

criticized Clark. Nevertheless, the BOS, which Clark was a member

of, had a legitimate interest in terminating Eaton based on the

undisputed evidence that he issued the BOS a memorandum, containing

an ultimatum and a false statement, and then published the same as

- 36 -
a press release. Where there is evidence of "malicious motives

and a motive related to the corporation's legitimate interests,

the plaintiff has the burden of proving that [defendant]'s 'actions

were unrelated to any legitimate corporate interest.'" Clement v.

Rev-Lyn Contracting Co., 663 N.E.2d 1235, 1237 (Mass. App. Ct.

1996) (quoting Boothby v. Texon, Inc., 608 N.E.2d 1028, 1040 (Mass.

1993)). Eaton has failed to meet that burden here, and, thus,

summary judgment for Clark was proper.

As to Kreidler, Eaton points to numerous facts that he

claims establish Kreidler's malice towards him. Keeping in mind

that we need not "credit bald assertions, empty conclusions, rank

conjecture, or vitriolic invective," Cabán Hernández, 486 F.3d at

8, we recite the remaining facts offered by Eaton accordingly:

Kreidler repeatedly pressured Eaton to make personnel changes

within the TPD; told Eaton that the BOS was not happy with his

performance; told Jenkins that the BOS had authorized an

investigation into the TPD despite knowing that no vote had been

taken; failed to deliver information and documents to the BOS; and

encouraged the BOS to terminate Eaton's employment. He further

asserts that a reasonable jury could conclude that Kreidler

interfered with Eaton's contract to retaliate against Eaton for

refusing to follow his requests; refusing to issue a press release

addressing claims made against Kreidler by Townsend residents; for

complaining about Kreidler to the BOS; and for raising concerns

- 37 -
about Kreidler's hiring decisions. Despite his numerous

assertions, Eaton cannot establish that "spite or malevolence," as

opposed to a legitimate employment interest, "was the controlling

factor in [Kreidler] urging [Eaton]'s discharge" given the

undisputed nature of his removal-worthy conduct. See Alba, 690

N.E.2d at 1243. Nor can Eaton establish that Kreidler, motivated

by animus, orchestrated the investigation into the use of CJIS by

the TPD -- which ultimately resulted in Eaton's termination -

- where the undisputed evidence is that Eaton's own handling of

CORI information and response when questioned prompted the

investigation by Jenkins. Finally, Eaton contends that a

reasonable jury could find that Kreidler tortiously interfered

with Eaton's employment by erroneously instructing the BOS not to

consider his performance bonus and by issuing defamatory press

releases. However, he failed to adequately develop these arguments

in his opening brief, see Zannino, 895 F.2d at 17 ("It is not

enough merely to mention a possible argument in the most skeletal

way, leaving the court to do counsel's work . . . ."), and may not

"use a reply brief to cure that deficiency," United States v.

Laureano-Salgado, 933 F.3d 20, 27 n.11 (1st Cir. 2019). Thus, the

district court was warranted in entering summary judgment for

Kreidler on Eaton's tortious interference claim.

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 IV. Conclusion

For the foregoing reasons, we affirm the district

court's entry of summary judgment in favor of Defendants on all

claims.

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