Not for Publication in West's Federal Reporter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.
- 3 - 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.
- 4 - 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
- 5 - 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.
- 6 - 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
- 7 - 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
- 8 - 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."
- 9 - 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.
- 10 - 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
- 11 - 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
- 12 - 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
- 13 - 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
- 14 - 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
- 15 - 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
- 16 - 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
- 17 - 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
- 18 - 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.
- 19 - 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
- 20 - 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.
- 21 - 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
- 22 - 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.
- 23 - 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
- 24 - 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
- 25 - 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
- 26 - 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).
- 27 - 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
- 28 - 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.
- 30 - 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
- 32 - 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.
- 33 - 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.
- 38 - IV. Conclusion
For the foregoing reasons, we affirm the district
court's entry of summary judgment in favor of Defendants on all
claims.
- 39 -