United States Court of Appeals For the First Circuit

No. 22-1153

SALVATORE MIRABELLA, JR.,

Plaintiff, Appellant,

v.

TOWN OF LEXINGTON, MASSACHUSETTS; MARK CORR, FORMER CHIEF OF POLICE,

Defendants, Appellees.

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

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lipez, Circuit Judges.

Ronald W. Dunbar, Jr., with whom Dunbar Law P.C. was on brief, for appellant. Gareth W. Notis, with whom Francesca L. Cone and Morrison Mahoney LLP were on brief, for appellees.

April 4, 2023 SELYA, Circuit Judge. This appeal arises out of a suit

filed by plaintiff-appellant Salvatore Mirabella, Jr., a former

police officer, against the town of Lexington, Massachusetts (the

Town) and its retired chief of police, Mark Corr. Mirabella

contends that the defendants denied him due process in the

termination proceedings that ended his affiliation with the Town's

police department and that they intentionally interfered with his

efforts to gain employment elsewhere. The district court entered

summary judgment for the defendants on all of Mirabella's claims.

See Mirabella v. Town of Lexington, No. 19-12439,

,

at *1 (D. Mass. Feb. 15, 2022). It is from this order that

Mirabella now appeals.

We need not tarry. "We have explained before that when

a 'trial court correctly takes the measure of a case and authors

a convincing decision, it rarely will serve any useful purpose for

a reviewing court to wax longiloquent' merely to hear its own words

resonate." Potvin v. Speedway LLC,

(1st Cir.

2018) (quoting Eaton v. Penn-Am. Ins. Co.,

(1st

Cir. 2010)); accord Seaco Ins. Co. v. Davis-Irish,

(1st Cir. 2002); Ayala v. Union de Tronquistas de P.R.,

(1st Cir. 1996). This is such a case. Consequently, we

affirm the judgment below for substantially the reasons explicated

in the district court's cogent rescript, adding only two comments

directed to Judge Lipez's dissenting opinion.

- 2 - First. Our dissenting colleague maintains that the

summary judgment record reveals a genuine dispute of material fact

as to whether the reason stated by the Bentley Police Department

(BPD) for refusing to hire Mirabella was pretextual. In a

nutshell, our dissenting colleague insists that a reasonable jury

could find that BPD did not deny Mirabella employment because he

prevented BPD investigators from completing a required component

of their background check (as BPD has stated) but, rather, denied

him employment because BPD wanted no part of him after it learned

that he was a "union agitator." See post at 14. And because Corr

was the person who told BPD of these union proclivities, the

dissent's thesis runs, a reasonable jury also could find that

Corr's comments harmed Mirabella's employment prospects. For

these reasons, our dissenting colleague concludes that there is a

triable issue of fact regarding Mirabella's claim of intentional

interference with advantageous relations (IIAR). This "pretext"

issue is doubly waived: it was neither advanced by Mirabella in

the district court nor meaningfully developed by him in his

briefing in this court. See McCoy v. Mass. Inst. of Tech.,

(1st Cir. 1991) (explaining that "theories not raised

squarely in the district court cannot be surfaced for the first

time on appeal"); United States v. Zannino,

(1st

Cir. 1990) (explaining that "issues adverted to in a perfunctory

- 3 - manner [on appeal], unaccompanied by some effort at developed

argumentation, are deemed waived").

Our dissenting colleague suggests that there was no

waiver because the relevant components of the argument can be found

at various points throughout Mirabella's opening brief (and

throughout his presentations in the district court). See post at

11 n.3. This suggestion is unpersuasive. Appellate adjudication

is not a scavenger hunt, and a party cannot rely upon an appellate

court to rummage through the record and weave isolated facts into

a coherent theory. See Zannino,

. For purposes of

preservation, it is not sufficient that either Mirabella's brief

or the district court record (or both, for that matter) contain

scattered references to the facts from which our dissenting

colleague has cobbled together the "pretext" theory that he now

introduces. To hold otherwise would be to flout both the "bedrock

principle that appellate arguments must be presented face-up and

squarely," Moses v. Mele,

(1st Cir. 2013), and

the corollary principle that arguments made in the district court

must be presented in an equally forthright manner, see Iverson v.

City of Boston,

(1st Cir. 2006).

The short of it is that Mirabella himself has made no

effort to explain — either below or on appeal — how his rendition

of the factual record demonstrates a basis for believing that BPD's

stated reason for not hiring him was pretextual. It follows that

- 4 - he has doubly waived the issue, and we respectfully decline our

dissenting colleague's implicit invitation that we do his work for

him.

Second. In all events, Mirabella has not shown that the

summary judgment record contains "definite, competent evidence,"

Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991), from

which a reasonable jury could find that BPD's stated reason for

denying him employment was pretextual. The only competent evidence

directly addressing BPD's decision not to hire Mirabella is the

department's statement documenting the fact that Mirabella's "lack

of cooperation" had prevented investigators from "completing a

full home visit." In light of the incomplete home visit, BPD

concluded that Mirabella "ha[d] disqualified himself from further

consideration" for employment. That conclusion was relayed to

Mirabella in an email, in which BPD informed Mirabella of its

decision to "discontinue[]" the background investigation.

Faced with this uncontroverted evidence, our dissenting

colleague points to the fact that, during the course of BPD's

background check, Corr told a BPD investigator that Mirabella had

expressed an intent to "stir things up" were he to be hired by

BPD. Our dissenting colleague then suggests — without citation to

any record evidence — that a series of inferences can be drawn:

that BPD would have been generally reluctant to hire someone who

had expressed a desire to engage in union activities; that BPD

- 5 - thus determined that it was not going to hire Mirabella; that

because BPD did not want to openly admit its real reason, it needed

to make up a facially plausible alternative story; and that such

a story line dropped into its lap when — weeks later — Mirabella

refused to allow BPD investigators full access to his home. See

post at 14-15. Simply describing this tortured chain of reasoning

vividly illustrates that it stacks "inference upon inference" in

a way that fails to show a genuine issue of material fact. Gomez

v. Stop & Shop Supermarket Co.,

(1st Cir. 2012).

That reasoning relies more on speculation and surmise than on

plausible parallel inferences drawn from competent evidence. And

it is an uncontroversial proposition that "conjecture cannot take

the place of proof in the summary judgment calculus." Bennett v.

Saint-Gobain Corp.,

(1st Cir. 2007); see Zingg v.

Groblewski,

(1st Cir. 2018) (explaining that

"improbable inferences[] and unsupported speculation" cannot

"establish a genuine dispute of fact" sufficient to withstand

summary judgment motion (quoting Ocasio-Hernández v. Fortuño-

Burset,

(1st Cir. 2015))). Although "we must draw

all reasonable inferences in [Mirabella's] favor at the summary

judgment stage," Alston v. International Association of

Firefighters, Local 950,

, 31 (1st Cir. 2021), we are

not required to draw "unreasonable" inferences, Cabán Hernández v.

- 6 - Philip Morris USA, Inc.,

(1st Cir. 2007) (emphasis

in original).

We need go no further. We affirm the judgment below for

essentially the reasons elucidated in the district court's

rescript.

Affirmed.

—Dissenting Opinion Follows—

- 7 - LIPEZ, Circuit Judge, dissenting. Like my colleagues,

I believe that the district court correctly granted summary

judgment on most of the claims asserted by Salvatore Mirabella,

Jr. in this case. We part ways only regarding Mirabella's

contention that Mark Corr, the former Chief of Police for the Town

of Lexington, intentionally interfered with Mirabella's ability to

gain employment with the Bentley Police Department ("BPD").

Indeed, the dispute here concerns only one of the four

elements of that claim. To prove that Corr intentionally

interfered with his job application to BPD, Mirabella must

establish, among other elements, that he "was harmed by [Corr's]

actions."1 Katz v. Belveron Real Est. Partners, LLC,

,

313 (1st Cir. 2022). The district court determined that Mirabella

could not survive Corr's motion for summary judgment based solely

on this element of the tort, and my colleagues uphold the court's

determination that Mirabella has not generated a genuine dispute

1In Massachusetts, a plaintiff can succeed on a claim of intentional interference with advantageous business relations if: 1) he or she has a contractual or advantageous relationship with another, 2) the defendant knowingly induced a breach of that contract or relationship, 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. Katz v. Belveron Real Est. Partners, LLC,

, 313 (1st Cir. 2022); see Blackstone v. Cashman,

(Mass. 2007).

- 8 - of material fact on the issue of whether Corr "harmed" Mirabella's

employment prospects with BPD. The majority, however, fails to

acknowledge the ample evidence in the record that supports

Mirabella's argument.

In reviewing a grant of summary judgment, we ask if there

is a genuine dispute of material fact for a jury to consider. See

Lahens v. AT&T Mobility P.R., Inc.,

, 333 (1st Cir.

2022). A genuine issue of material fact exists when a reasonable

jury, presented with competing facts, could resolve the issue in

favor of the non-moving party. See Zingg v. Groblewski,

(1st Cir. 2018). Thus, a non-movant can successfully

overcome a summary judgment motion by "present[ing] definite,

competent evidence" establishing a factual dispute. Murray v.

Kindred Nursing Ctrs. W. LLC,

(1st Cir. 2015).

In this case, Mirabella's allegations rely heavily on

circumstantial evidence concerning the impact of Corr's conduct on

Mirabella's employment prospects. But the "circumstantial" label

in no way circumscribes the force of Mirabella's evidence. Indeed,

trial courts routinely instruct juries about the types of evidence

they can consider in resolving a factual dispute. Here is a

familiar instruction:

"Direct evidence" is direct proof of a fact, such as testimony by a witness about what the witness said or heard or did. "Circumstantial evidence" is proof of one or more facts from

- 9 - which you could find another fact. You should consider both kinds of evidence.

3 Fed. Jury Prac. & Instr. § 101:42 (6th ed. Supp. Feb. 2023).

Critically, jury instructions routinely emphasize that "[t]he law

makes no distinction between the weight to be given to either

direct or circumstantial evidence." Id. That is, direct evidence

is no more valuable than circumstantial evidence. The trial judge

will often supplement the above by guiding the jury on the

permissible use of circumstantial evidence:

[A]ny inference on which you rely in reaching your decision must meet two requirements. First, you may draw the inference for a conclusion only from facts that have been proved to you. Second, any inference that you use must be reasonable and natural, based on your common sense and experience in life.

General Instructions, Massachusetts Superior Court Civil Practice

Jury Instructions, Vol. I-1.

Respectfully, I suggest that my colleagues have failed

to appreciate how a reasonable jury could consider and credit the

circumstantial evidence Mirabella offers to support his

intentional interference claim. Indeed, Mirabella's assertion of

pretext would be compelling if the jurors believed his explanation

for BPD's incomplete home visit -- a credibility determination

that is for them to make, not us.2 To emphasize the majority's

To assist jurors in their factfinding role, trial judges 2

typically will instruct them on how to evaluate a witness's credibility:

- 10 - error, I offer a closing argument that Mirabella's attorney might

make to the jury on the causation prong of his intentional

interference claim against Corr, drawing solely on facts in the

record.3

You may believe everything a witness says, part of it, or none of it. In considering the testimony of any witness, you may take into account many factors, including the witness' opportunity and ability to see or hear or know the things the witness testified about; the quality of the witness' memory; . . . other evidence that may have contradicted the witness' testimony; and the reasonableness of the witness' testimony in light of all the evidence.

3 Fed. Jury Prac. & Instr. § 101:43. My colleagues assert that Mirabella has waived his argument 3

that BPD's stated reason for not hiring him was pretextual and that Corr's comments provide the true reason behind BPD's decision. While I acknowledge that Mirabella did not develop his position as fully as he could have, a fair reading of the record demonstrates that the pretext claim was adequately raised in both the district court and on appeal. In his deposition, which is part of the summary judgment record, Mirabella testified that BPD's stated reason for not hiring him -- his refusal to allow BPD officers to undertake a home visit -- was fabricated. He stated that, in fact, he told the officers he could not complete the visit that day because his children were home. Mirabella claimed that BPD, using the incomplete home visit as a pretext, did not hire him because Corr had told BPD officers Mirabella was a union sympathizer and so would be disruptive. The district court understood that Mirabella was making a pretext claim. In rejecting that claim, the court stated: "[a]lthough Plaintiff proffers that he did not comply [with the home visit] because his children were present in his home at the time, this does not change the fact that BPD's own stated reason for not hiring him was his own lack of cooperation." Mirabella v. Town of Lexington, No. 19-CV-12439-ADB,

, at *10 (D. Mass. Feb. 15, 2022).

- 11 - ***

Members of the jury. The question before you today is whether Chief Corr's comments to BPD officers about my client's union sympathies harmed my client's employment prospects. Corr would have you believe that BPD's written report on Mirabella's job application resolves this question simply because it states that Mirabella was disqualified for refusing to cooperate with a home visit to check that his firearms were safely stored. But this statement is only one side of the argument.

My client insists that BPD's stated reason for not hiring him is a pretext. The real reason, he says, was Corr's disclosure to BPD officers that Mirabella would "stir things up" if hired because of his union experience. We have presented ample evidence from which you can, and should, conclude that BPD's stated reason was indeed a pretext. Do not fall into the trap of doubting Mirabella and the reasonable inferences you draw from the evidence simply because of BPD's report. Remember, the judge has instructed you that these reasonable inferences are every bit as good as the document from BPD.

Consider the following:

1. My client testified that he explained to the officers why he could not complete the home visit when they appeared, without advance notice, at his door. His children were home

Mirabella reprised his pretext argument on appeal. In his brief, he contends that BPD's stated reason for not hiring him is false, outlines his own competing account of the home visit, and argues that Corr's "fabricat[ed] stories about Mirabella's desire to unionize [BPD]" are, in fact, the "real reason" for BPD's decision. See Appellant Br. at 22-23. Mirabella's allegation of pretext was sufficiently stated for the district court to understand his claim, and it is likewise sufficiently stated in his appellate brief to deserve consideration on the merits.

- 12 - from school and he did not want them to see either his guns or the location of his guns.

So why does BPD make no reference to Mirabella's explanation in its report on the background investigation and home visit? Why does BPD's report instead give a wholly different account of the home visit, attributing words to my client that he denies ever saying? BPD's report states that Mirabella refused to let officers inspect the second floor of his home, telling them "you're not going up there . . . that's just how I operate. . . . If this costs me the job, so be it." Mirabella says he never said anything of the sort. Think about it for a moment. Do those statements sound like something a job applicant would say after going through the trouble of trying to secure a job? We have two competing narratives here, and it is your role to determine which one is true.

If you do not believe the testimony of my client then his case is over. It is as simple as that. But you have heard the judge tell you how to evaluate the credibility of witness testimony. If you apply those instructions, I suggest that you will conclude that Mirabella's account is both credible and perfectly reasonable. Who among you would not want to shield your children from firearms? And if you believe Mirabella, you are entitled to draw the inference that BPD had a reason for not wanting to acknowledge Mirabella's reasonable explanation for not completing the home visit.

2. The question for you then becomes what is that reason -- why would BPD not acknowledge Mirabella's explanation, but instead create a false narrative of the home visit to justify not hiring him, otherwise known as a pretext? There is compelling circumstantial evidence to answer that question. Consider how events unfolded with respect to Mirabella's application to BPD.

- 13 - On February 6, 2018, two BPD officers visited the Lexington Police Department to speak with Corr about Mirabella's application. During this conversation, Corr indisputably made a damaging disclosure about Mirabella's union sympathies. Corr testified that he spoke with a BPD background officer about Mirabella's union activities, telling the officer that "[Mirabella] was going to use his union experience to go [to BPD] and improve the contract and improve all the benefits, and he was going to stir things up a bit." This comment cannot be viewed as anything but damaging to Mirabella's candidacy -- who would want to hire a troublemaker? Corr himself even recognized that he was making a sensitive disclosure at the time he made it. He volunteered the information about Mirabella's union activities only after inquiring into the BPD officers' union status and asking the unionized officer to leave the room.

Critically, the sensitivity with which Corr treated his disclosure about Mirabella's union troublemaking reflects an indisputable inference grounded in experience and common sense -- police departments are cautious about union-related activity and are careful about how they handle union members. As you know from your own life experiences, union activity can be a divisive issue in workplaces and unions can cause headaches for employers. So ask yourselves: would BPD want to state on Mirabella's background investigation report that they chose not to hire him because of his union activity? Surely not.

By the end of the conversation with Corr, then, BPD had a problem: officers had heard that Mirabella was a union agitator, they did not want to hire him because of this information, but they could not reveal that they rejected his candidacy on that basis. They needed a pretext. And they got one a month later when they visited Mirabella at home.

- 14 - 3. On March 8, 2018, two BPD officers attempted to complete a visit of Mirabella's home to inspect his firearms. As you know, Mirabella says he did not want them to complete the inspection because his children were home. BPD's inability to complete the home visit therefore became lucky for them. They attributed to Mirabella implausible statements about why he would not allow the inspection, and the incomplete inspection provided BPD with a reason to reject Mirabella's candidacy without mentioning his union activities.

In summary, putting all of this together, we have credible evidence in Mirabella's testimony, along with reasonable inferences, that lead to one common-sense conclusion: BPD's stated reason for not hiring Mirabella was a pretext, and the real reason was Corr's indisputably damaging disclosure about Mirabella's union activities. Therefore, you should find that Corr's statements harmed my client's employment prospects with BPD.

***

Could the jury reject this argument? Sure. I am not

suggesting that Mirabella's position is necessarily more

persuasive than the competing evidence offered by Corr. But it is

important to recognize that there is competing evidence, and it is

a jury's role to resolve the material factual dispute this evidence

generates. In disregarding the circumstantial evidence supporting

Mirabella's pretext claim, my colleagues in fact draw inferences

in favor of the moving party, Corr, by taking BPD's stated reason

for not hiring Mirabella at face value. They are wrong to do so.

Because the majority opinion disregards a genuine issue of material

- 15 - fact and the role of juries in resolving such a dispute, I

respectfully dissent.

- 16 -