Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 19-1774

LINDA FELIX,

Plaintiff, Appellant,

v.

TOWN OF KINGSTON, MASSACHUSETTS; SANDY MACFARLANE, as an individual and in her capacity as a member of the Board of Selectmen of the Town of Kingston; ELAINE FIORE, as an individual and in her capacity as a member of the Board of Selectmen of the Town of Kingston; DENNIS RANDALL, as an individual and in his capacity as a member of the Board of Selectmen of the Town of Kingston; THOMAS CROCE, as an individual and in his capacity as a member of the Council on Aging; FLORENCE CERULLO; ROBERT FENNESSY, Town Administrator for the Town of Kingston,

Defendants, Appellees.

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

[Hon. Donald L. Cabell, U.S. Magistrate Judge]

Before

Thompson, Lipez, Circuit Judges, and Torresen,* District Judge.

Thomas Russell Mason, with whom Law Offices of Thomas Mason was on brief, for appellant.

* Of the District of Maine, sitting by designation. Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

December 23, 2021 THOMPSON, Circuit Judge. As the result of some sort of

mutual misunderstanding, after her term as Director of Elder

Affairs expired on December 31, 2013, Linda Felix ("Felix") found

herself on leave under the Family and Medical Leave Act ("FMLA")

from a job she no longer held. Felix requested and was granted

the maximum FMLA leave1 by her employer, the Town of Kingston ("the

Town"), but a few months into her leave, her job, which was a term

position subject to reappointment, ended. She was not reappointed

as Director or selected to interview when she reapplied as the

Town set about to fill the vacancy.

The parties are familiar with the sequence of events

that brought them to court, so we need not rehash all of those

details here.2 Following her unsuccessful application for rehire,

Felix brought claims against the Town and various town employees3

for violation of the FMLA,

(FMLA interference and

FMLA retaliation, to be precise), Massachusetts' employment

discrimination statute, M.G.L. c. 151B, its whistleblower

The FMLA guarantees workers twelve weeks of unpaid leave 1

during any twelve-month period for, among other things, a serious medical condition that renders the employee unable to perform her job duties.

(a)(1)(D)(c). For those less familiar and interested in learning more, 2

see Memorandum and Opinion on Motion for Summary Judgment, No. 15- CV-14022-DLC,

(D. Mass. July 8, 2019). We note that Appellee Thomas Croce, a member of the Council 3

on Aging, is now deceased.

- 3 - protection statute, M.G.L. c. 149, § 185, and she also alleged

various state common law torts.4 Spying no genuine issue of

material fact anywhere and determining the defendants were

entitled to judgment as a matter of law, the magistrate judge5

issued a comprehensive memorandum and order granting summary

judgment in favor of the defendants on all claims, and Felix asks

us to reverse and remand the magistrate judge's decision. Having

carefully reviewed the parties' submissions and the controlling

case law, however, we see no reason to disturb the well-reasoned

decision articulated below. And "when lower courts have

supportably found the facts, applied the appropriate legal

standards, articulated their reasoning clearly, and reached a

correct result, a reviewing court ought not to write at length

merely to hear its own words resonate." In re Brady-Zell,

(1st Cir. 2014) (citing cases). We therefore affirm

the comprehensive decision below, briefly adding a bit of our own

discussion along the way.6

4 In her summary judgment briefing below and before us, Felix talks up a claim under the Americans with Disabilities Act,

et seq. (the "ADA"), but her amended complaint contained no such claim. 5 The parties consented to the jurisdiction of Magistrate Judge Cabell on April 11, 2016. See No. 15-cv-14022-DLC, Dkt. No. 09. 6 We do not address each cause of action brought by Felix here because, as we mention above, we've thoroughly reviewed each claim and, like the magistrate judge, find them meritless.

- 4 - First, some basic summary-judgment principles guide our

brief discussion here. Our review is de novo. Brader v. Biogen

Inc.,

(1st Cir. 2020); Ortiz-Martínez v. Fresenius

Health Partners, PR, LLC,

(1st Cir. 2017).

Summary judgment is appropriate when "there is no genuine dispute

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

a matter of law." Ameen v. Amphenol Printed Cirs., Inc.,

(1st Cir. 2015) (quoting Barclays Bank PLC v. Poynter,

(1st Cir. 2013)). "A genuine issue of fact exists where

'the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.'" Taylor v. Am. Chemistry Council,

(1st Cir. 2009) (quoting Chadwick v. WellPoint, Inc.,

(1st Cir. 2009)). The court must examine "the

record in the light most favorable to the nonmovant" and must make

"all reasonable inferences in that party's favor." Ameen,

(quoting Barclays,

). "While we resolve

all reasonable inferences in favor of the nonmoving party, we 'must

ignore conclusory allegations, improbable inferences, and

unsupported speculation.'" Taylor,

(quoting Am.

Steel Erectors, Inc. v. Loc. Union No. 7, Int'l Ass'n of Bridge,

Structural, Ornamental & Reinforcing Iron Workers,

(1st Cir. 2008)). We are free to affirm the entry of summary

judgment "on any basis apparent in the record."

Jones v. Nationwide Life Ins. Co.,

(1st Cir. 2012)

- 5 - (quoting Chiang v. Verizon New Eng. Inc.,

(1st

Cir. 2010)).

Before us, Felix sweepingly asserts7 that the district

court failed to take her factual allegations as true and draw all

reasonable inferences in her favor. Somewhat more specifically,

Felix insists, primarily, that there are three factual matters the

magistrate judge either overlooked or got wrong -- specifically,

facts that prove she was retaliatorily terminated and facts which

demonstrate the merits of her state law cause of action. These

errors, she asserts, doomed her FMLA and Massachusetts disability

claims. Countering, appellees insist that the record reveals "no

genuine issue as to any material fact and [that] the Defendants

are entitled to judgment as a matter of law."

The first fact Felix hammers is a May 29, 2014 email

from John Clifford, former counsel for the Town, which stated that

following her FMLA leave, Felix did not return to her position and

was terminated. Felix leans heavily on the use of the word

"terminated" -- urging that this is "smoking gun" evidence she was

affirmatively "terminated" as opposed to her appointment expiring,

simply because this email literally says so. But we agree with

7 As mentioned earlier, Felix argues that the lower court failed to make all reasonable inferences in her favor, but never clearly delineates which particular legal determinations were affected by this supposed failure concerning her purported "termination."

- 6 - the magistrate judge's assessment on this matter: A smoking gun

it is not. Notwithstanding the email's use of the word

"terminated," the timeline here, as borne out by the record,

supports only the conclusion that Felix's formal appointment had

ended, and as of January 1, 2014, Felix was no longer employed by

the Town. As the magistrate judge stated during the summary

judgment argument, "there is an unfortunate dissidence between the

way people were talking about what happened to her as of December

31st [2013]. Because it is clear, it is beyond dispute that her

position formally ended." Put differently and consistent with

record support, this is ultimately a matter of poor word choice on

the part of the Town counsel, but it does not carry with it the

legal import Felix wants it to. She wasn't fired or terminated;

her appointment came to a natural end when the Town Board of

Selectmen did not vote to renew her term. And, once her

appointment contractually ended, the Town was under no obligation

to restore her to her position -- or any other position, and Felix

doesn't argue otherwise.8 See generally Town of Brookfield v. Lab.

Rels. Comm'n,

,

(2005)

(police officers' terms expired and employment ended when their

8Of course, had Felix returned to work before her position ended, she would have been entitled to be reinstated to her previous position,

(a)(1)(A), or "to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment."

§ 2614(a)(1)(B); see also

(defining the phrase "equivalent position").

- 7 - names were not submitted to the board of selectmen, and the board

did not vote on whether to reappoint them); Mass. Coal. of Police,

Loc. 165, AFL-CIO v. Town of Northborough,

,

(1993) (town's board of selectmen's decision not

to reappoint police officer ended his employment, but court

concluded he had not been terminated or removed from his position).

Felix cannot rest her claims of retaliation on a

termination (i.e., adverse employment action) that never occurred,

so the Town counsel's misuse of the term "terminated" does not

amount to an actual adverse employment action necessary to

establish a claim of retaliation. See Carrero-Ojeda v. Autoridad

de Energía Eléctrica,

(1st Cir. 2014) (in a FMLA

retaliation case, plaintiff alleging retaliation must establish

that she availed herself of a protected FMLA right, that she was

adversely affected by an employment decision, and that there was

a causal connection between her protected conduct and the adverse

employment action).

The second factual issue that Felix believes the lower

court overlooked is more evidence she contends supports her

assertion that she was terminated rather than simply not

reappointed as the Town insists happened. This time, Felix points

to litigation deposition testimony from a Town employee, Nancy

Howlett, who said that Robert Fennessy, the Town Administrator,

told her to pay Felix her (presumably) accrued vacation time

- 8 - because her appointment was up in December of 2013 and Felix was

not coming back.9 This statement, says Felix, proves she was

fired. But we do not see how any reasonable juror could derive

that conclusion from this testimony. Fennessy's statement was

quite literally true. As stated before, the Town had no obligation

to extend her employment and the selectmen opted not to do so.

See Brader,

("The nonmovant cannot rely on conclusory

allegations, improbable inferences, and unsupported

speculation."). Therefore, we, like the magistrate judge before

us, do not read into this statement what Felix suggests.

The final fact issue we want to touch upon concerns

Felix's claim made under Mass Gen. Laws ch. 151B § 4(16) that when

she reapplied for her job after both her appointment and FMLA leave

ended, the Town requested information about her disability in

contravention of Mass. Gen. Laws ch. 151B § 4(16). This statute

prohibits employers from "mak[ing] preemployment inquiry of an

applicant as to whether the applicant is a handicapped individual

or as to the nature or severity of the handicap," but it is

currently unsettled as to whether the statute provides a private

cause of action. See Martino v. Forward Air, Inc.,

, 3-

4 (1st Cir. 2010) (quoting Mass. Gen. Laws ch. 151B § 4(16)).

9 The record citation to this statement does not include a date or time that this conversation occurred, making it even more difficult to assess its meaning in relation to the other events, including her appointment ending.

- 9 - Even if we assume favorably to Felix that there is a

private cause of action (as the magistrate judge did, too), Felix

can't win on this issue. The record evidence includes a brief

email exchange between the Town's counsel and Felix's counsel

following the end of Felix's FMLA leave and that she was

potentially going "to apply for a reasonable accommodation." In

it, the Town's counsel requests a list of any accommodations Felix

might need along with Felix's request to be reappointed to her

position, and he assures Felix's counsel that any conversations

regarding accommodations would happen outside of the public eye.

Notably, the Town's counsel and Felix's counsel never actually

discuss any potential accommodations Felix may require, and

according to Fennessy's deposition testimony, the Town's counsel

played no role in the selection process when Felix reapplied, i.e.,

any information he may have received about her disability (which

appears to be none) would not have been a part of the deliberation

over her candidacy. Beyond self-serving conjecture, Felix

presented no evidence to refute these declarations. Therefore, as

the magistrate judge noted, this inquiry, when viewed in context,

is not the type of pre-employment inquiry contemplated by Mass.

Gen. Laws. ch. 151B § 4(16).10 We agree -- so we decline to

consider it further.

Indeed, had Felix's term been extended, or had she been 10

hired for the Director position upon reapplication and needed an

- 10 - As we mentioned a few pages ago, our discussion here is

brief and to the point because the magistrate judge carefully

analyzed and disposed of each claim. See In re Brady-Zell,

. Despite Felix's attempts to persuade us -- and the

magistrate judge -- otherwise, Felix simply hasn't "adduce[d]

specific facts showing that a trier of fact could reasonably find

in [her] favor." Thompson v. Gold Medal Bakery, Inc.,

(1st Cir. 2021) (quoting Brader,

). She

"cannot rely on conclusory allegations, improbable inferences,

acrimonious invective, or rank speculation,"

(internal

quotations omitted) and, upon our review, we conclude that's what

happened here (and below). Indeed, Felix has not provided any

specific facts beyond her own speculation and conclusions

unsupported by record evidence to show that she was discriminated

against or retaliated against when her employment with the Town

ended, and because of that, we affirm.

Each party shall bear its own costs.

accommodation due to a disability, engaging in an interactive process would have necessitated disclosure of her medical issues. See Mass. Gen. Laws ch. 151B § 4(1E)(c).

- 11 -