United States Court of Appeals For the First Circuit
No. 19-1573
WILLIAM GEOFFROY,
Plaintiff, Appellant,
v.
TOWN OF WINCHENDON, MASSACHUSETTS; SCOTT LIVINGSTON; JAMES KREIDLER; DAVID WALSH,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
Danielle Callahan Gill and Callahan Law Group, LLC were on brief for appellant. Leonard H. Kesten, Jeremy Silverfine, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief for appellee.
May 13, 2020 LYNCH, Circuit Judge. Plaintiff William Geoffroy, a
former Winchendon police officer, brought claims of age
discrimination, retaliation, and defamation against the Town of
Winchendon, Massachusetts; its Chief of Police, Scott Livingston;
its Town Manager, James Kreidler; and Lieutenant David Walsh ("the
defendants").1
The claims arise from Geoffroy's decision to resign with
a pension after the defendants ascertained he had made several
threats against his former girlfriend. He did so instead of facing
termination and the possibility of losing his pension and being
criminally charged. Geoffroy also signed a separation agreement,
in which he waived and released any claims he had against the
defendants up and through signing the separation agreement.
Geoffroy claimed that the defendants punished him far
more severely than they did younger officers and that he was denied
a law enforcement retirement identification card in retaliation
for filing an age discrimination claim. Geoffroy argued that the
waiver and release in his separation agreement were invalid because
he was not given twenty-one days to review them, which violated
the Older Workers Benefit Protection Act ("OWBPA").
The district court granted summary judgment on the age
discrimination and OWBPA claims for the defendants, concluding
1 The defendants' positions are listed as of the time of the underlying facts.
- 2 - that Geoffroy's waiver and release were knowing and voluntary. A
jury then found for the defendants on the retaliation and
defamation claims.
On appeal, Geoffroy challenges the district court's
grant of summary judgment, arguing that his waiver and release
violated the OWBPA and were not knowing and voluntary, and the
withdrawal of an exhibit at trial. We reject both challenges and
affirm.
I.
We review the district court's grant of summary judgment
relying only on the summary judgment record and so include only
those facts here. J. Geils Band Emp. Benefit Plan v. Smith Barney
Shearson, Inc., 76 F.3d 1245, 1250 (1st Cir. 1996). We discuss
the trial record where relevant to the evidentiary issue.
A. Facts
Geoffroy joined the Winchendon Police Department in
1985. While a police officer, Geoffroy dated Catherine Phongsaly
from June to July 2011. At 1:30 a.m. on October 8, 2011, Geoffroy,
having consumed two-and-a-half beers, drove to Phongsaly's home.
After seeing another person's car there, he left. About thirty
minutes later, he called Phongsaly, left her a two-to-three-minute
voicemail, and sent her twenty-eight text messages. In the
voicemail, Geoffroy used profane language repeatedly and told
- 3 - Phongsaly that she was "lucky [he] didn't kick [her] f***ing door
in." (Alterations in original.)
On October 10, 2011, Phongsaly told Sergeant Gerald
Gagne of the voicemail and text messages. Later that day, Sergeant
Raymond Anair spoke to Phongsaly, who described the voicemail and
another instance of Geoffroy's threatening behavior. Anair told
her that she could file for a chapter 209A restraining order, but
Phongsaly declined.
On October 14, 2011, Walsh took Phongsaly's statement.
Phongsaly told Walsh how, after she and Geoffroy had separated,
Geoffroy often verbally abused her, drove by her house late at
night, showed up at her workplace during her shift, and ran the
license plates of cars parked outside of her house.
On or about October 17, 2011, Geoffroy met with Walsh,
Livingston, and Geoffroy's union president, Martin Rose. The four
listened to a tape of the voicemail. They then discussed
Geoffroy's potential discipline: demotion and suspension,
termination, or resignation in lieu of termination.
On October 19, 2011, Geoffroy met with Kreidler,
Livingston, Walsh, union representative Michael Bombard, and union
attorney Michael Clancy. Kreidler gave Geoffroy a choice:
Geoffroy could (1) resign and claim his pension; or (2) be
terminated and potentially lose his pension and be criminally
- 4 - charged. Geoffroy later testified that, to "save [his] pension,"
he chose to resign.
Geoffroy received by email the "Separation Agreement and
General Release" ("separation agreement") sometime between the
October 19 meeting and when he signed the separation agreement on
October 24, 2011. Geoffroy could not open the email attachment
containing the separation agreement and asserts that he did not
see a copy of the separation agreement until the day he signed it.
The separation agreement outlined the terms of
Geoffroy's resignation and benefits. It contained a waiver and
release of any claims that arose up and through signing the waiver
and release. The separation agreement allowed Geoffroy to remain
on paid leave until April 21, 2012, at which time he would
officially retire. He would then receive his pension. The
separation agreement stated that, by signing it, Geoffroy
acknowledged he had the right to, and had been advised to, discuss
the separation agreement with an attorney and was entering into
the separation agreement voluntarily. The separation agreement
stated that Geoffroy had a waivable, twenty-one-day period to
review the separation agreement before signing and a seven-day
period after signing during which he could revoke the agreement.
Finally, the separation agreement's completeness clause stated
that Geoffroy and the Town "acknowledge[d] that [they had] not
executed this [separation agreement] in reliance upon any . . .
- 5 - representation or promise" "not contained in this [separation
a]greement."
Geoffroy spoke to both Rose and Bombard separately after
the October 19 meeting. Both advised Geoffroy that it was his
decision to make. Bombard counseled Geoffroy not to resign.
Clancy and Geoffroy also discussed the separation agreement after
the October 19 meeting but before he signed the separation
agreement on October 24, 2011.
After the October 19 meeting but before executing the
separation agreement, Geoffroy chose to resign. He testified that
he did so based upon the choice given to him. On October 24, 2011,
Geoffroy signed the separation agreement and then submitted a
notice of resignation for the sole purpose of retirement, effective
April 21, 2012.
Almost six months later, on April 12, 2012, Geoffroy
filed a complaint with the Massachusetts Commission Against
Discrimination ("MCAD"). He alleged age discrimination by
Livingston and the Town of Winchendon. He claimed that younger
officers had committed "violent acts and/or . . . serious
offenses" but had not faced such severe discipline.
In November 2012, Geoffroy requested from Livingston a
law enforcement retirement identification card. Livingston called
the President of the Massachusetts Chiefs of Police Association,
Bill Brooks, to the discuss the good standing requirement for
- 6 - receiving an identification card. Livingston then concluded that
Geoffroy had not retired in "good standing," because he resigned
while under investigation for conduct unbecoming of a police
officer. Livingston denied the request. Geoffroy filed a second
MCAD complaint that alleged this denial was in retaliation for the
first MCAD complaint.
B. Procedural History
In October 2014, Geoffroy filed suit in Massachusetts
state superior court against the Town of Winchendon, Livingston,
Kreidler, and Walsh. His amended complaint alleged unlawful age
discrimination in violation of Mass. Gen. Laws ch. 151B, § 4(1B)2
and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§ 621 et seq.; unlawful retaliation in violation of Mass. Gen.
Laws ch. 151B, § 4(4); violations of the OWBPA, see 29 U.S.C.
§§ 623, 626, 630; and defamation.
On December 18, 2014, the defendants removed the case to
the United States District Court for the District of Massachusetts
under federal question jurisdiction. Discovery took place from
December 10, 2015, to December 2, 2016. On January 20, 2017, the
2 While Geoffroy's complaint states that he brings a claim under Mass. Gen. Laws ch. 151B, § 4(1B), we note that section 4(1B) applies to "an employer in the private sector" while section 4(1C) applies to "the commonwealth [and] any of its political subdivisions." Because we find Geoffroy's age discrimination claims waived, however, we need not address under which provision he brings his state-law claim.
- 7 - defendants moved for summary judgment on all counts. On September
30, 2017, the district court concluded that Geoffroy had
voluntarily waived and released his age discrimination claims and
granted partial summary judgment as to them. But the court
determined that the retaliation and defamation claims turned on
disputed facts, and so denied summary judgment on those claims.
The parties went to trial on April 29, 2019. Geoffroy
argued that Livingston denied him an identification card in
retaliation for his age discrimination complaint. The defendants
countered that Geoffroy had not resigned in "good standing," which
made him ineligible for a card. The defendants introduced Exhibit
54, a Winchendon regulation on police identification cards, which
Livingston testified that he used to determine Geoffroy's
standing. The regulation states that an officer "charged with or
suspected of criminal activity at the time of retirement, [or]
. . . under investigation or facing disciplinary action" has not
retired in good standing. Livingston testified that he also relied
on his conversation with Brooks.
Later in the trial, the district court expressed concern
that, although the regulation was issued before the denial, it did
not go into effect until fifteen days after the denial. The court
stated that it would instruct the jury accordingly. In his
closing, Geoffroy asserted that the jury should review the
regulation and disregard Livingston's testimony because the
- 8 - regulation post-dated the denial. The district court instructed
the jury not to discuss or consider this regulation. The court
then withdrew Exhibit 54 without objection.
During its deliberations, the jury asked the court: "Can
we get some clarification on what evidence we are supposed to
ignore in regard to good standing." The court reiterated that
there was testimony about the regulation, restated that the
regulation was not effective when Geoffroy's request was denied,
and referred the jury once more to the instructions.
On May 3, 2019, the jury returned a verdict for the
defendants. On May 30, 2019, Geoffroy moved for a new trial, which
the court denied. Geoffroy timely appealed the summary judgment
and new trial orders.
II.
On appeal, Geoffroy challenges the summary judgment
order and the withdrawal of Exhibit 54.
A. Standard of Review
We "review . . . the district court's grant of summary
judgment . . . de novo, assessing the facts and the inferences to
be drawn from them in the light most favorable to the non-moving
party." Hightower v. City of Bos., 693 F.3d 61, 70 (1st Cir.
2012). As said, we do not rely on any facts not before the district
court at summary judgment. J. Geils Band Emp. Benefit Plan, 76
F.3d at 1250. "We may affirm a grant of summary judgment 'on any
- 9 - ground revealed by the record.'" Robinson v. Town of Marshfield,
950 F.3d 21, 24 (1st Cir. 2020) (quoting Santangelo v. N.Y. Life
Ins. Co., 785 F.3d 65, 68 (1st Cir. 2015)). But "we cannot accept
'conclusory allegations, improbable inferences, and unsupported
speculation.'" Theidon v. Harvard Univ., 948 F.3d 477, 502 (1st
Cir. 2020) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173
(1st Cir. 2003)).
We review for abuse of discretion preserved challenges
to the exclusion of evidence. See Shervin v. Partners Healthcare
Sys. Inc., 804 F.3d 23, 41 (1st Cir. 2015).
B. Geoffroy Knowingly and Voluntarily Waived and Released His Age Discrimination Claims
Geoffroy argues that he did not waive or release his age
discrimination claims because (1) the waiver and release violated
the OWBPA and (2) he signed the separation agreement under duress.
We disagree. Geoffroy's waiver and release of claims satisfy both
the OWBPA and federal common law and the record provides multiple
bases with which to affirm.3
3 Geoffroy also argues that the district court applied the wrong legal test by not expressly addressing the requirements of the OWBPA. But the record shows that Geoffroy voluntarily waived and released his claims under both the OWBPA and federal common law, so we need not address this argument. See Robinson, 950 F.3d at 24.
- 10 - 1. Geoffroy's Waiver and Release Satisfied the OWBPA's Requirements
The OWBPA requires that a waiver or release of ADEA
claims be "knowing and voluntary," which "'at a minimum' [must]
satisf[y] certain enumerated requirements." Oubre v. Entergy
Operations, Inc., 522 U.S. 422, 426 (1998) (quoting 29 U.S.C.
§ 626(f)(1)). The only requirement at issue here is that the
waiving party must be "given a period of at least 21 days within
which to consider the agreement" of which the waiver or release is
a part. 29 U.S.C. § 626(f)(1)(F)(i).
Geoffroy argues that, although the waiver and release
afforded him a twenty-one-day review period, he was told "that he
would only have a day or two . . . to sign it or not." He claims
the defendants shortened his review period in violation of the
OWBPA. Not so.
The record does not substantiate Geoffroy's argument.
Geoffroy's "conclusory allegations . . . and unsupported
speculation" to the contrary cannot save his claims. Theidon, 948
F.3d at 502 (quoting Benoit, 331 F.3d at 173).
Geoffroy never testified that anyone told him he had to
sign a waiver and release the next day or within days of the
October 19 meeting. He merely testified he was "[u]nder duress."
Geoffroy also does not cite any testimony of Kreidler's.
- 11 - Geoffroy's argument relies solely on Clancy's deposition
testimony, which does not evidence any restriction.
Contrary to Geoffroy's argument, Clancy did not testify
that Geoffroy "had to make his decision within [a five day] time
period." Clancy testified that he thought Kreidler "wanted a
decision in one day." This statement only shows that Clancy
believed Kreidler wanted to know the "next day" in what direction
Geoffroy wanted the discussions to go: that is, whether there was
going to be "an agreement or . . . discipline and a criminal
investigation."4 The statement does not support Geoffroy's claim
that "he only had a few days to sign the [separation a]greement or
he would be terminated." Further, at that time, there was no
separation agreement and the record does not show any discussion
of a waiver and release.
Kreidler's comment, if made, was made only once and never
repeated over the five days between the October 19 meeting and the
meeting at which Geoffroy signed the separation agreement. This
five-day gap, during which the defendants never contacted Geoffroy
about his delay in signing, refutes Geoffroy's claim that he was
required to sign the separation agreement within a "day or two" of
4 Similarly, Clancy's testimony that he "didn't think [more time] was an option" referred to having more time "to consider Mr. Geoffroy's options"; that is, in what direction to take negotiations. This is supported by Clancy's testimony that "there wasn't really a request for more time at that point because [he] hadn't seen the document."
- 12 - receiving it.5 Clancy's testimony alone does not show a violation
of the OWBPA.6
In addition, it is important to point out that the OWBPA
expressly requires only that a waiver or release of an ADEA claim
be part of a written agreement and "the individual [be] given a
period of at least 21 days within which to consider the agreement."
29 U.S.C. § 626(f)(1)(A), (F)(i). "The statutory command is clear:
An employee 'may not waive' an ADEA claim unless the waiver or
release satisfies the OWBPA's requirements." Oubre, 522 U.S. at
426-27 (emphasis added). As a matter of law, the OWBPA provision
applies to the waiver or release of ADEA claims. It does not apply
to a separate written agreement as to a resignation in lieu of
being fired. See Blackwell v. Cole Taylor Bank, 152 F.3d 666, 670
(7th Cir. 1998) (applying the OWBPA's review period requirement to
the "[decision] whether to sign the waiver in exchange for an
5 Geoffroy also cites Rose's testimony, which states that, after the October 19 meeting, Rose asked Livingston on Geoffroy's behalf for more time for Geoffroy to consider his options. But we need not address this testimony or whether it would support Geoffroy's OWBPA claim, as Geoffroy failed to cite this evidence or argue its meaning to the district court. See Serra v. Quantum Servicing, Corp., 747 F.3d 37, 43 (1st Cir. 2014) ("[A]rguments . . . never raised below . . . are . . . barred by our waiver doctrine.").
6 The gap in time, the lack of an express restriction on the waiver and release review period, and the defendants' dispute of this testimony all distinguish the instant case from Cole v. Gaming Entm't, L.L.C., 199 F. Supp. 2d 208 (D. Del. 2002), Geoffroy's key case.
- 13 - additional severance payment," not the "[decision] whether to
quit," for which the plaintiffs had less than a day).
2. Geoffroy's Waiver and Release Were Knowing and Voluntary Under Federal Common Law
An OWBPA-compliant waiver or release must also be
knowing and voluntary under federal common law. See Melanson v.
Browning-Ferris Indus., Inc., 281 F.3d 272, 274 & n.2 (1st Cir.
2002); Bennett v. Coors Brewing Co., 189 F.3d 1221, 1228-29 (10th
Cir. 1999) ("[W]e must look beyond the [OWBPA-]specified statutory
minimum requirements."). The test for this is federal common law.
See Melanson, 281 F.3d at 276; accord Bennett, 189 F.3d at 1228;
Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373-74 (11th Cir.
1995). Without addressing the common-law test, Geoffroy baldly
asserts that he signed the separation agreement under duress. This
argument is meritless.
We determine whether a waiver or release of claims was
knowing and voluntary by applying a totality-of-the-circumstances
test. Melanson, 281 F.3d at 276. We often look to a non-exhaustive
set of six factors:
(1) plaintiff's education and business experience; (2) the respective roles of the employer and employee in the determining the provisions of the waiver; (3) the clarity of the agreement; (4) the time plaintiff had to study the agreement; (5) whether plaintiff had independent advice, such as that of counsel; and (6) the consideration for the waiver.
- 14 - Id. at 276 & n.4. No single factor is dispositive or necessary.
Id. at 274, 276. Importantly, "duress, without more, [cannot] be
inferred from merely the emotional and financial stress associated
with loss of a job." Id. at 277.
The factors show that Geoffroy voluntarily waived and
released his claims.7 Geoffroy had sufficient education and
experience to understand the waiver and release. That is because
he: (1) had graduated high school; (2) had obtained college
credits;8 (3) had served previously as the union secretary; (4)
had become personally familiar with "reprimands and suspensions
and appeals processes," as well as settlement agreements related
to disciplinary issues; and (5) had received independent advice
through his union. Importantly, Geoffroy does not dispute that he
understood the waiver and release, which demonstrates the waiver
and release's clarity. See id. As said, Geoffroy had twenty-one
days to review the waiver and release and chose not to revoke the
separation agreement.
Geoffroy received independent advice through his union.
Geoffroy testified that he consulted with Rose, Bombard, and Clancy
7 The only factor that does not, the respective roles in drafting the separation agreement, also does not evidence that the separation agreement was involuntary.
8 Geoffroy's education parallels that of the plaintiff in Melanson. There, the court concluded that the plaintiff was "not deficient in education [because] she graduated from high school with honors and was enrolled in college courses." Id.
- 15 - before signing the separation agreement.9 Rose advised Geoffroy
that he should resign, but told him that it was Geoffroy's choice
to make. Bombard, Geoffroy's union representative, "tried to talk
[Geoffroy] out of [resigning]" but Geoffroy "insisted" on
resigning. Finally, Clancy, the union attorney, counseled
Geoffroy on the separation agreement before Geoffroy signed it.10
Finally, Geoffroy received extremely valuable
consideration for waiving the claims. Instead of facing
termination (and so losing his pension) for threatening Phongsaly,
he received six months of pay for his accrued leave, his pension,
and the promise of a neutral reference from the Town. The waiver
and release account for part of this consideration. Geoffroy chose
the option far more beneficial to him. The consideration was more
than sufficient.
Finally, Geoffroy's assertion he was under "significant
distress" (presumably at the thought of losing his job) does not,
without more, show duress. See Melanson, 281 F.3d at 277.
9 Geoffroy also stated that he "may have talked to a couple of friends."
10 The parties dispute the sufficiency of the advice given by Clancy, Rose, and Bombard. But the facts disputed are not material. First, Geoffroy cannot create a dispute of material fact by stating he did not consult with Rose, Bombard, and Clancy, when he testified earlier that he did. See Melanson, 281 F.3d at 277 n.5 ("A party may not create an issue of fact by submitting an affidavit . . . that clearly contradicts the affiant's previous deposition testimony."). Second, Geoffroy does not cite any cases or evidence demonstrating these consultations were insufficient.
- 16 - Geoffroy's choice not to revoke the separation agreement in the
seven-day OWBPA revocation period following his signing bulwarks
our conclusion.
C. Geoffroy's Argument that the District Court Abused its Discretion in Withdrawing Exhibit 54 Is Meritless.
Geoffroy has doubly waived his argument that the
district court abused its discretion by withdrawing Exhibit 54.
Even if he had not, there was clearly no abuse of discretion and
no harm.
Geoffroy first waived this issue by not objecting to the
district court withdrawing Exhibit 54. See United States v.
Meserve, 271 F.3d 314, 324 (1st Cir. 2001). Geoffroy concedes
that he did not object and argues that the district court did not
give him "an opportunity to object." But, while outside the
presence of the jury, the district court asked Geoffroy to confirm
the exhibit number of the regulation so the court could withdraw
it. Geoffroy could have preserved an objection then.
Geoffroy also waived this argument by omitting it from
his motion for a new trial. See Sampson v. Eaton Corp., 809 F.2d
156, 161 (1st Cir. 1987). His motion argues that the district
court's instructions "confused the jury,"11 but it does not address
11 To the extent Geoffroy argues on appeal that the district court's jury instructions were an abuse of discretion, he has waived this argument by failing to develop it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 17 - the withdrawal of Exhibit 54. Geoffroy did not "raise[] squarely"
the "legal theor[y]" that the district court abused its discretion
in withdrawing the exhibit, so it is waived. United States v.
Nygren, 933 F.3d 76, 88 n.3 (1st Cir. 2019) (quoting Teamsters
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992)).
Even if Geoffroy had properly preserved this argument,
it would still fail. The defendants introduced Exhibit 54 to
support Livingston's testimony that he relied on the regulation in
denying Geoffroy the identification card. But because Livingston
could not have properly relied on a regulation with an effective
date after the denial, the exhibit could not serve this purpose.12
In consequence, the district court did not abuse its discretion in
withdrawing it.
Moreover, the record supported the jury verdict (e.g.,
that Livingston also relied on his conversation with Brooks on
good standing). It was "highly probable" that the withdrawal of
12 Geoffroy argues, had the jurors seen the exhibit, "they would have seen . . . [that] Livingston couldn't have possibly 'relied' on it." But the "jurors are presumed to have followed the [district] court's instructions" not to consider the exhibit, which forecloses this argument. Río Mar Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159, 163 (1st Cir. 2008). Geoffroy also implies that the jury would have inferred from the regulation's effective date that Livingston lied about his good standing determination. To the extent Geoffroy makes this argument, it is waived for lack of development. Zannino, 895 F.2d at 17.
- 18 - Exhibit 54 "did not affect the outcome of the case," and so was
harmless. McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st
Cir. 2006).
III.
Affirmed.
- 19 -