52 F.4th 495
1st Cir.2022Background
- Thomas Dusel worked ~35 years for FM Global and was President & CEO of subsidiary Hobbs Brook Management (HBM) until his September 2018 termination.
- In 2015 and 2018 HBM employee Patricia Holland complained about VP Kevin Casey; HR investigated twice and did not discipline Casey. Dusel participated and protested HR's conclusions.
- FM Global reorganized HBM in March 2018 (relocating management to RI); Dusel protested by letter alleging retaliation and complained about a May 2018 "Meets Expectations" review.
- A July–August 2018 audit/investigation found (1) multiple personal cell-phone lines for Dusel charged to the company, (2) after-hours visits to an HBM cafeteria consistent with taking food, and (3) alleged attempts by Dusel to mislead investigators.
- FM Global terminated Dusel for code-of-conduct violations and misappropriation; after termination it also discovered a large cache of sexually explicit material on his devices. Dusel sued under Mass. Gen. Laws ch. 151B for age discrimination and retaliation; the district court granted summary judgment for FM Global and Dusel appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Age discrimination — prima facie (acceptable performance) | Dusel: long 35‑year tenure, promotions, positive reviews and high compensation show acceptable performance | FM Global: evidence of phone misuse, management problems, and suspicious after‑hours conduct undermines acceptable performance | Court: District erred to require rebuttal of employer's reasons at prima facie stage; Dusel met the modest prima facie showing. |
| Age discrimination — pretext | Dusel: employer's misconduct allegations are disputed and a subordinate (Casey) was not fired, showing disparate treatment | FM Global: articulated legitimate nondiscriminatory reasons (phone misuse, deception, alleged food theft); Casey not similarly situated | Court: FM Global met its burden; Dusel failed to show the reasons were implausible or that comparator is similarly situated — summary judgment affirmed. |
| Retaliation (causation / pretext) | Dusel: protected activity (reporting/participating in investigations and protesting reorganization/review) + temporal proximity support retaliation inference | FM Global: investigations and adverse actions resulted from independent discoveries; intervening misconduct breaks causal link | Court: Even assuming protected acts, Dusel failed to show causation or that FM Global's proffered reasons were pretextual — summary judgment affirmed. |
| Evidentiary rulings (affidavits; after‑acquired evidence) | Dusel: move to strike Fitzpatrick, Waal, Ingram affidavits and exclude sexually explicit material as untimely, expert testimony, or unfairly prejudicial | FM Global: witnesses disclosed; evidence admissible (after‑acquired evidence relevant to damages); any disclosure/formalities harmless | Court: No abuse of discretion. Any Fitzpatrick disclosure/expert issue harmless because decision did not rely on it; after‑acquired evidence admissible for damages; several attack points waived for lack of developed argument. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden‑shifting framework for discrimination claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; materiality and genuine dispute rules)
- Mesnick v. Gen. Elec. Co., 950 F.2d 816 (1st Cir. 1991) (employer's burden of production at step two of McDonnell Douglas)
- Vélez v. Thermo King de P.R., 585 F.3d 441 (1st Cir. 2009) (prima facie standard described as modest; evidentiary limits at prima facie stage)
- Acevedo‑Parrilla v. Novartis Ex‑Lax, Inc., 696 F.3d 128 (1st Cir. 2012) (district court may not consider employer's nondiscriminatory reason at prima facie stage)
- Wayfair (Forsythe v. Wayfair, Inc.), 27 F.4th 67 (1st Cir. 2022) (standard for showing employer's stated reason is implausible such that it is likely pretext)
- Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24 (Mass. 2016) (plaintiff must produce evidence from which a jury could infer the employer's stated reasons were not the real reasons)
- McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) (after‑acquired evidence may limit remedies though not absolve liability)