Keeler v. Putnam Fiduciary Trust Co.

United States Court of Appeals
For the First Circuit

No. 00-1237

CALVIN L. KEELER,

Plaintiff, Appellant,

v.

PUTNAM FIDUCIARY TRUST COMPANY,
PUTNAM INVESTMENTS, INC.,
MARSH & McLENNAN COMPANY, INC.,
JACK CHAFIN and GAVAN TAYLOR,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Elizabeth A. Rodgers with whom Robert Mantell and Rodgers,
Powers & Schwartz were on brief for appellant.
Laura Steinberg with whom Samia M. Kirmani, Kathleen A.
Collins and Sullivan & Worcester LLP were on brief for
appellees.
January 17, 2001
 BOUDIN, Circuit Judge. This appeal grows out of a

lawsuit by Calvin Keeler against Putnam Investments, Inc.

("Putnam") and others. Keeler charged Putnam with age

discrimination under state law, violation of the Family and

Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-54 (1994 & Supp.

II 1996), and other alleged wrongs. The district court gave

summary judgment for the defendants on all but one state-law

claim, which it remanded to state court, and Keeler has now

appealed. We begin with a brief outline of events, giving due

preference to Keeler's version of the facts.

In 1987, Gavan Taylor, a senior executive at Putnam,

recommended hiring Keeler--then 57 years of age--to manage

Putnam's mainframe computer services functions. Keeler's title

was senior vice president. During the period 1987-1993, Keeler

was highly rated in Putnam's regular evaluations. His base

salary grew to just over $90,000 and he received year-end

bonuses ranging up to $33,100. However, as early as 1990,

Keeler's responsibilities were narrowed to focus on data

communications and other new technology, and some of his staff

were reassigned.

In August 1993, Taylor hired a new senior vice

president, Jack Chafin (age 49) to manage data communications.

Keeler lost another chunk of his staff, and his duties were

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limited to computer-related planning, disaster recovery, data

security, and some administrative tasks. Although he had once

had as many as 85 or more employees to supervise, his new duties

after August 1993 left him with only about five employees.

However, Keeler remained a senior vice president with the same

salary. At the end of the year Keeler got a very good

performance evaluation and a sizable $33,000 bonus but, unlike

other senior vice presidents, he did not get any appreciable

raise in salary.

In 1994, Taylor told Keeler that he would not receive

his usual large bonus at the end of the year because of his

reduced duties. In December 1994, Keeler was redesignated vice

president and lost the accouterments of a senior vice president

(a large office, reserved parking). His year-end bonus, now

based on a less favorable bonus plan, shrank to $7,300. His job

evaluation for the year (made in January 1995), although still

adequate (3+), fell from the higher ranking (4) that he had

previously enjoyed (the maximum was 5). In December 1994,

concerned about possible age discrimination, Keeler contacted a

lawyer whom he knew had represented employment discrimination

plaintiffs.

In 1995, Keeler was assigned to work on a significant

project to provide Internet access to Putnam employees; but,

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after some controversy about his handling of the project, he was

removed in mid-1995. Disagreement also arose about Keeler's

handling of another matter involving Putnam's response to audit

inquiries. Chafin's mid-year assessment graded Keeler's

performance at a lower level (3), and in the fall Taylor told

him that his rating would be downgraded further (to 2). When

the physical condition of Keeler's wife deteriorated in December

1995, Keeler began to take periods of leave to care for her.

Keeler received no bonus for 1995 and, in 1996, another

controversy arose about a delay in completing a local area

network security audit. In March 1996, Chafin removed Keeler

from supervision of disaster recovery and data security. On

March 20, 1996, Keeler filed a complaint with the Massachusetts

Commission Against Discrimination ("MCAD"), claiming age

discrimination. By a letter of March 29, 1996, Keeler advised

Putnam of the complaint and asked for a substantial change in

position or a substantial severance package. After receipt of

the letter, Putnam, on April 2, 1996, escorted Keeler from the

premises and placed him on paid leave. Within a week, Putnam

withdrew the suspension, after Keeler's attorney warned Putnam

that its action represented retaliation.

During this period and continuing through the rest of

1996, Putnam's wife was repeatedly hospitalized. Keeler took

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more than 30 days away from work to care for her or as personal

sick days, and the company always approved his absences. At the

same time, Keeler was given new projects. However, in February

1997, Keeler received a low performance rating (2+) and his

review noted that Keeler's "[a]ttendance [was] unpredictable in

1996 and part of 1995." Keeler asked Putnam to change the

evaluation, provide him a performance improvement plan, and

reinstate him as a senior vice president. Putnam declined.

Keeler resigned on March 21, 1997.

In May 1998, Keeler brought suit against Putnam in

Massachusetts state court.1 The complaint set forth six claims

under Massachusetts law: intentional age discrimination (count

I) and disparate-impact age discrimination (count II), Mass.

Gen. Laws ch. 151B, § 4 (1998); retaliation following his

complaint (count III), id. at §§ 4, 4(4); failure to investigate

and remedy discrimination (count IV); violation of

Massachusetts' Equal Rights Act because of age discrimination

(count V), Mass. Gen. Laws ch. 93, § 103 (1998); and defamation

(count VI). A seventh, federal claim was for discrimination in

violation of the Family and Medical Leave Act (count VII).

1
Also named as defendants were Putnam's subsidiary, Putnam
Fiduciary Trust Co.; Putnam's corporate parent, Marsh & McLennan
Co.; and Gavan Taylor and Jack Chafin. For simplicity, we refer
to Putnam as the defendant.

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 Putnam removed the case to the district court and,

after extensive discovery by both sides, Putnam moved for

summary judgment on August 10, 1999. For reasons more fully

explained below, the district court granted summary judgment to

Putnam on all counts other than retaliation and remanded that

count to state court (because of difficult issues of state law

as to exhaustion and the statute of limitations). Keeler now

appeals from the grant of summary judgment only as to the counts

charging intentional age discrimination, failure to investigate,

and medical leave discrimination (counts I, IV, and VII).

Our review on a grant of summary judgment is de novo,

Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607,

611 (1st Cir. 2000), and we begin with the sole federal claim.

Under the Family and Medical Leave Act, Keeler was entitled to

take "a total of 12 workweeks of leave during any 12-month

period" to care for a spouse suffering from a "serious health

condition," 29 U.S.C. § 2612(a)(1), and, more to the point,

Putnam could not lawfully "interfere with, restrain, or deny"

Keeler's exercise of this right, id. § 2615(a)(1). Regulations,

not here challenged, prohibit an employer "from discriminating

against employees . . . who have used FMLA leave" or from using

such leave "as a negative factor in employment actions, such as

hiring, promotions or disciplinary actions." 29 C.F.R. §

-7-
825.220(c) (2000); accord Hodgens v. General Dynamics Corp., 144

F.3d 151, 159-60 (1st Cir. 1998).

The district court began its analysis with the

framework adopted in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973), which involved a Title VII claim that racial

discrimination underlay a denial of employment. The decision

held that, following a rather low threshold showing by the

would-be employee, an employer has an obligation to "articulate

some legitimate, nondiscriminatory reason for the [applicant's]

rejection," absent which discrimination may be presumed. Id. at

802. With necessary adjustments to the threshold showing,

McDonnell Douglas has been adapted to other kinds of

discrimination claims, including FMLA claims.2

When McDonnell Douglas applies, the employer normally

seeks to proffer some colorable nondiscriminatory reason for the

challenged action. The plaintiff may then say that the reason

is pretext and the true reason is forbidden discrimination.

McDonnell Douglas, 411 U.S. at 804. In that event, depending on

the record, there may or may not be legitimate issues for a

2
Hodgens, 144 F.3d at 160 (FMLA); see also Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000)
(sex discrimination); DeNovellis v. Shalala, 124 F.3d 298, 308
(1st Cir. 1997) (age discrimination included); Katz v. City
Metal Co., 87 F.3d 26, 30 n.2 (1st Cir. 1996) (disability-based
discrimination).

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factfinder as to the true motive, causation and injury. But the

adverse presumption disappears, and the plaintiff retains the

ordinary burden of proving discrimination. See Lawrence v.

Northrop Corp., 980 F.2d 66, 69-70 (1st Cir. 1992).

By the time summary judgment was sought, Putnam had

advanced a host of nondiscriminatory reasons for its challenged

actions. Based on deposition and documentary evidence, Putnam

painted a picture of Keeler failing in a series of important

assignments from 1993 onward, of efforts by the company to

protect his pay and status while getting others to carry on the

work, and of Keeler failing to admit his weaknesses as a manager

or to undertake to correct them. Of course, most of the

evidence came from Putnam's officials and could be challenged,

but certainly Putnam colorably "explained" with

nondiscriminatory reasons the adjustment in pay status and

evaluations it gave Keeler following his use of FMLA leave.

The district court did not decide the issue of motive.

Instead, it concluded that Keeler had not satisfied a different

condition that the court said was necessary to "a prima facie

case under the FMLA," namely, the requirement that Keeler have

suffered "an adverse employment action" arguably ascribable to

his use of FMLA leave. It is not clear whether the court

regarded this as part of the McDonnell Douglas threshold showing

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or as part of the showing that a plaintiff must make to avoid

summary judgment after the defendant's "burden" of explanation

has been met.3 In all events, Keeler does not dispute that to

avoid summary judgment he had to create a trialworthy issue that

Putnam had taken adverse employment action against him that was

motivated at least in part by Keeler's use of protected leave.

In finding that no such trialworthy issue had been

created, the district court took Keeler to be claiming that he

suffered an adverse employment action after he took leave

because his absences were reflected in negative reports and

evaluations of his performance in 1996. The court said that

negative performance evaluations were not themselves adverse

employment actions, Sweeney v. West, 149 F.3d 550, 556 (7th Cir.

1998); and, taking Keeler to argue further that these

evaluations contributed to his "constructive discharge," the

court said that, as a matter of law, a reasonable person would

not take these incidents as creating "intolerable working

3
The courts have often used the term "prima facie" with
respect to both showings, compare Ward v. Massachusetts Health
Research Inst., Inc., 209 F.3d 29, 32-33 (1st Cir. 2000), with
Hodgens, 144 F.3d at 160-61, and the frequent failure to
identify which showing is at issue has bred substantial
confusion--which is enhanced because the two showings have some
common elements while differing in other respects (or else
McDonnell Douglas would serve no function at all).

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conditions" amounting to constructive discharge. We think that

the reasoning does not quite work but the grant of summary

judgment was right.

Part of the confusion is due to the fact that Keeler,

in opposing summary judgment, argued emphatically he had

suffered a "constructive discharge." This was always a dubious

argument since "constructive discharge" usually describes

harassment so severe and oppressive that staying on the job

while seeking redress is intolerable. Landrau-Romero, 212 F.3d

at 613; Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732-33 (1st

Cir. 1999). Here, none of Putnam's actions were of such

magnitude that Keeler was prevented from staying on while

seeking remedies for any harm he had suffered. See Nunez-Soto

v. Alvarado, 918 F.2d 1029, 1030-31 (1st Cir. 1990).

We also agree with Sweeney, 149 F.3d at 556, that not

every comment about problems created by the use of leave can

fairly be treated as an adverse employment action violating the

FMLA. An employee's use of leave, while fully legitimate, can

cause serious problems for the employee's performance of his

tasks and require an employer to implement changes in how jobs

are assigned and who does what within the organization. What is

prevented is adverse action against the employee for using the

protected leave. See 29 C.F.R. § 825.220(c). But in opposing

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summary judgment, Keeler did allege two different types of

concrete injury never addressed by the district court:

•that the loss of his remaining staff and
important functions in March 1996 was due in
part to displeasure at his use of FMLA leave
and, that while this motivation was not
expressed to him at the time (and he then
thought that age discrimination was the
reason), a private April 1996 memorandum
refers to absence problems; and

•that the absences, mentioned again in the
year-end evaluation of his 1996 performance,
resulted in his low "2+" rating which (he
says) was an understood threat of dismissal,
to which he yielded in order to retain
lifetime health benefits.

On appeal, Keeler's opening brief mentions neither of

the above injury claims in the context of his FMLA argument but,

in addition to repeating the constructive discharge claim,

offers a new claim of injury, namely, that the low "2+" rating

allegedly disqualified Keeler from eligibility for a bonus for

his 1996 work and that concern over absences may also explain

the failure to give him a bonus for 1995 work (even though the

downturn in his wife's health that triggered his taking

significant FMLA leave did not occur until December 1995).

Keeler refers to his earlier district court allegations of

injury only briefly and in his reply brief in this court.

Certainly, it would have been better for the district

court to have addressed the two specific injury claims Keeler

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made in opposing summary judgment. But these claims are forfeit

on appeal because neither one is renewed in Keeler's opening

brief, which instead offers a new claim of injury not made in

the district court and now unavailable. Wills v. Brown Univ.,

184 F.3d 20, 27 (1st Cir. 1999). The brief mention of one of

the older claims in a reply brief is inadequate; "[e]ven if

preserved below, the argument has to be renewed in the opening

brief on appeal, so that the appellee has a chance to respond."

Id.

There are no "extraordinary circumstances" that prompt

us to go beyond the claims properly made on appeal. Gemco

Latinoamerica, Inc. v. Seiko Time Corp., 61 F.3d 94, 100 (1st

Cir. 1995). FMLA leave may have played some part in the final

stages of Keeler's deteriorating relationship with Putnam, but

Keeler's loss of responsibilities and staff, his ever lower

rating, and the elimination of bonuses are part of a downward

trajectory that began long before he began to take FMLA leave in

late 1995. Whether the trajectory was itself due to age

discrimination is a different question, to which we now turn.

Keeler's main age discrimination claim is that his

successive reverses from 1993 onward--in responsibilities,

title, salary, bonuses and perquisites--were caused by Putnam's

view that he (Keeler) was too old for his job. The district

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court narrowed the incidents it would consider to those that

occurred not earlier than six months prior to Keeler's initial

complaint to MCAD in March 1996; it excluded certain of the age-

related statements that Keeler attributed to Putnam on the

ground that they were not offered by firsthand affidavit or

deposition; it then concluded--as to the remaining adverse

actions--that "the overwhelming evidence of record [showed] that

[Keeler] did not meet his employer's legitimate performance

expectations" and that a stray remark of 1993 allegedly made by

Taylor about Keeler being at retirement age did not create a

jury issue as to motive.4

On appeal, Keeler says that the district court should

not have narrowed the scope of the incidents it considered, and

that, even if the scope of inquiry was properly limited to

events in 1996 and thereafter, enough evidence of age

discrimination remained for a jury trial. Keeler also attacks

the district court's decision to exclude other alleged

statements bearing on age discrimination that were unsupported

by first person affidavits or depositions, but the arguments for

reversal on this issue are not substantial. By contrast, the

4
According to an affidavit from a former Putnam employee,
Taylor allegedly said that because Keeler was "at the age of
moving into retirement, he . . . was looking to bring in other
individuals to take over the functions that [Keeler] had under
his domain."

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statute of limitations and the judgment as to the weight of the

evidence both raise difficult questions.

In addressing the limitations issue, the district court

set out in chronological order a parade of thirteen incidents

claimed by Keeler to involve adverse actions, beginning with the

loss of some of his responsibilities in 1990. The court then

said that the first nine incidents occurred more than six months

before March 1996 when Keeler filed his MCAD complaint and that

these earlier incidents could not be used "to support" his

claims of discrimination. Keeler has claimed throughout that

such pre-1996 incidents could be the basis for recovery on a

"continuing violation" theory recognized under both

Massachusetts and federal decisions. E.g., Thomas v. Eastman

Kodak Co., 183 F.3d 38, 53-54 (1st Cir. 1999), cert. denied, 120

S. Ct. 1174 (2000); Lynn Teachers Union v. MCAD, 549 N.E.2d 97,

100 (Mass. 1990).

The continuing violation concept has provoked endless

confusion, 2 Lindemann & Grossman, Employment Discrimination Law

1351 (3d ed. 1996), but if what Keeler characterizes as the

"federal" approach were taken, the concept would not help Keeler

in this case. This court has treated the concept primarily as

a tolling device, allowing a plaintiff to reach back to recover

for earlier related incidents--otherwise barred by a statute of

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limitations--where at the time they occurred the plaintiff had

no reason to know that a wrong had been committed. Provencher

v. CVS Pharmacy, 145 F.3d 5, 14-15 (1st Cir. 1998); Sabree v.

United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396,

402 (1st Cir. 1990). Here, Keeler admitted that by 1994, long

before he filed his complaint, he already suspected that age

discrimination was at work.

However, Massachusetts law governs here and (according

to Keeler) is more generous to plaintiffs. Frankly, we are

uncertain. An MCAD regulation bearing on the question, Mass.

Regs. Code tit. 804, § 1.10(2) (1998), is ambiguous; the

decisions of the Supreme Judicial Court to which we have been

cited do not clearly resolve the issue; and lower court

decisions in Massachusetts are divided: several follow the

federal approach, but one judge predicts that the SJC would

override the limitations period in certain continuing violation

cases where the federal approach would not.5 Absent clearer

5 Compare Clifton v. Massachusetts Bay Transp. Auth., No.
Civ.A. 95-2686-H, 2000 WL 218397, at *5-*6 (Mass. Super. Ct.
Feb. 3, 2000) (Gants, J.) (rejecting the federal approach), and
De Almeida v. The Children's Museum, No. Civ.A. 99-0901-H, 2000
WL 96497, at *5 (Mass. Super. Ct. Jan. 11, 2000) (Gants, J.)
(same), with Cuddyer v. Stop & Shop Supermarket Co., No. Civ.A.
97-01816, 2000 WL 343783, at *8 (Mass. Super. Ct. Mar. 15, 2000)
(adopting the federal approach), and Riebold v. Eastern Cas.
Ins. Co., No. Civ.A. 000306, 1999 WL 140419, at *7 (Mass Super.
Ct. Mar. 2, 1999) (same).

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guidance from Massachusetts courts, we will follow the well-

established Provencher and Sabree approach in cases like this

one governed by Massachusetts law. Cf. Kassel v. Gannett Co.,

875 F.2d 935, 949-50 (1st Cir. 1989).

Even if it is supposed that the SJC may take a more

plaintiff-friendly approach, this is more likely to occur in

cases of ongoing harassment where pinpricks may only slowly add

up to a wound. Here, by contrast, Keeler suffered a sequence of

fairly discrete and individually major adjustments in pay,

title, responsibilities, and the like; and it is not easy to see

why an MCAD complaint should have been deferred once Keeler

concluded in 1994 that age discrimination might underlie some of

these actions. Of course, Keeler may still use the earlier

events as background evidence of discrimination even where he

cannot recover for them. Sabree, 921 F.2d at 400 n.9.

This brings us to the next issue: whether Keeler had

enough evidence of age discrimination causing adverse action to

get to a jury once the statute of limitations barred his

recovery for incidents prior to September 1995 (i.e., six months

before his MCAD complaint was first filed). The issue is closer

than the district court realized because among the nine

incidents that it excluded from consideration on statute of

limitations grounds, one was not an employment action at all but

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rather an alleged statement by Taylor that goes to motivation.

According to Keeler, Taylor told Keeler on August 9, 1993, the

day after Keeler turned 63, that "due to his age he . . . would

be given less responsibility at the same pay . . . and with the

same title, and that his job would be less stressful."

Adding this to the remark about Keeler's being at

retirement age, there were two admissible statements suggesting

discriminatory intent that Taylor allegedly made in 1993. If we

were concerned with adverse actions taken against Keeler close

in time to these statements, a case might exist for a jury,

especially because up to that point in 1993, Keeler's

evaluations were good, with few complaints about his

performance. Thus, the appointment of Chafin in 1993 to

supervise data communications and the reduction of Keeler's

staff by roughly 25 members might have created a jury issue as

to age discrimination, even though Putnam has its own

explanations for the change (burgeoning workload, Chafin's

special expertise in managing information systems). But, of

course, this 1993 revision of duties is one of the incidents

excluded by the statute of limitations ruling as a basis for

recovery.

By contrast, at the time of the incidents in late 1995

that fall within the statute of limitations, Keeler's

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performance rating had been declining for some time, and persons

other than Taylor had criticized Keeler's work on various

projects. From late 1993 on, the evaluations for the most part

were made by Chafin, who has not been taxed with having made any

age-related comments; similarly, the complaints about Keeler's

performance, although less substantial than Putnam asserts, have

also not been shown to be linked to age discrimination.6 Whether

they were fair criticisms or attempts to shift blame for delays

on difficult projects is beside the point, so long as they were

not age-motivated.

In the end, we think no reasonable jury could attribute

the adverse actions from late 1995 onward to two alleged remarks

made in 1993, at least one of them quite ambiguous (as Keeler

admits). Here, there exists in the interim a record of

performance-related criticisms, principally by or to Chafin (not

Taylor); and there is a telling lack of substantial, specific

evidence that Keeler was treated differently from younger but

otherwise similarly situated employees. On this record the

6 Keeler received mixed reviews while working on the so-
called "Artemis" project involving computer software. Chafin
was also concerned that Keeler had difficulties in completing
the company's project to provide Internet access to employees,
that Keeler had not completed the last two stages of a capacity
planning project, and that he did not complete another project
for Putnam's Andover office. Finally, Janet Green, another
employee, complained about mistakes made by Keeler during an
audit.

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district court was entitled to grant summary judgment as to the

age discrimination claim. See Wooster v. Abdow Corp., 709

N.E.2d 71, 76-78 (Mass. App. Ct. 1999); Tardanico v. Aetna Life

& Cas. Co., 671 N.E.2d 510, 514-15 (Mass. App. Ct. 1996).

We turn now to count IV of the complaint charging

Putnam with failing to conduct an adequate investigation of

Keeler's age discrimination charge after Keeler (in April 1996)

complained inside the company that he was a victim of such

discrimination. Putnam says that the record shows that Putnam

did make a good faith investigation as soon as Keeler made the

charge. The district court did not resolve the contest but

instead granted summary judgment for Putnam on the ground that

the court's rejection of the substantive age discrimination

claim precluded liability for a failure to investigate.

On appeal, Keeler claims that "[t]he duty to

investigate . . . may form an independent basis for liability,"

but the Massachusetts decisions he cites are of relatively

little help to him. In College-Town, Division of Interco, Inc.

v. MCAD, 508 N.E.2d 587, 594 (Mass. 1987), the SJC did indeed

refer to a duty to investigate; but it did so in explaining why

the defendant company could be held liable for sexual harassment

that had been committed by a supervisor, reported by the victim

to higher management, and not adequately investigated or curbed.

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Nothing in the opinion suggests that, if there had been no

sexual harassment, the failure to investigate claim could have

given rise to any independent liability.7

Nothing would prevent a legislature from enacting a

statute that required an employer to investigate colorable

claims, and that awarded damages (if any) for the failure to do

so, even where no substantive discrimination had occurred.

However, nothing in the Massachusetts statute suggests such an

intention to us, and the reference in College-Town to the duty

to investigate makes far more sense as a further explanation for

imposing liability on an employer who was told correctly that

harassment had occurred but did nothing to prevent it. And, of

course, the damages for failure to investigate would be quite

different in character and amount than the type normally awarded

for discrimination.

Finally, the district court did not rule on the merits

of count III, the retaliation claim, but remanded it to the

state court. The federal claim having been dismissed, the

district court deemed a remand appropriate partly because of

7
Keeler also cites Moore v. Boston Fire Dep't, 22 M.D.L.R.
294, 299-301 (MCAD 2000); Beldo v. University of Mass. Boston,
20 M.D.L.R. 105, 112 (MCAD 1998); Kenney v. R & R Corp., 20
M.D.L.R. 29, 32 (MCAD 1998); and DiSilva v. Polaroid Corp., 1985
Mass. App. Div. 1, 4 (1985). However, none of these cases even
arguably extends the holding in College-Town.

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some uncertainty under state law as to whether the retaliation

claim had been adequately preserved. Neither Keeler nor Putnam

has challenged this disposition and we leave the remand

undisturbed.

The judgment of the district court is affirmed. Each

side shall bear its own costs in this appeal.

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