Murray v. Warren Pumps, LLC, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [13-2133]

Case: 13-2133

Document: 00116989788

Page: 1

Date Filed: 04/25/2016

Entry ID: 5994205

United States Court of Appeals
For the First Circuit
No. 13-2133
RAYMOND MURRAY,
Plaintiff, Appellant,
v.
WARREN PUMPS, LLC and COLFAX AMERICAS,
Defendants, Appellees.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.

Michael O. Shea, with whom Law Office of Michael O. Shea,
P.C. was on brief, for appellant.
Mark W. Batten, with whom Elizabeth A. Kowal and Proskauer
Rose LLP were on brief, for appellees.

April 25, 2016

Case: 13-2133

Document: 00116989788

Page: 2

HOWARD, Chief Judge.

Date Filed: 04/25/2016

Entry ID: 5994205

Plaintiff Raymond Murray sued his

former employer Warren Pumps, LLC and its parent company Colfax
Americas, claiming that their actions toward him violated the
Americans with Disabilities Act ("ADA") and its Massachusetts
analog.

42

151B, § 4(16).

U.S.C.

§§

12112(a),

(b)(5)(A);

M.G.L.

ch.

He also asserted a state common law claim that he

had been terminated from his employment for raising complaints
about suspected workplace safety violations, in contravention of
Massachusetts public policy.

The district court granted summary

judgment in favor of the defendants on all claims.

We affirm.

I.
Given the summary judgment posture, we recite the facts
in the light most favorable to Murray as the non-moving party.
See Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012).

Warren

Pumps manufactures pumps for both the commercial market and for
purchase by the government for use in sophisticated end products
such as submarines.

Murray's job responsibilities for Warren

Pumps primarily encompassed ensuring that workplace practices in
the plant complied with health and safety requirements.

When

Warren Pumps first hired Murray in 2003, the company knew that he
had physical limitations related to a permanent back condition.
Specifically, Murray was restricted from lifting items over 35
- 3 -

Case: 13-2133

Document: 00116989788

Page: 3

Date Filed: 04/25/2016

Entry ID: 5994205

pounds and from standing or sitting for long periods of time.

In

light of this knowledge, the company and Murray agreed that he
would

perform

limitations

his

as

job

in

needed.

a

manner

Although

that

Murray

accommodated
believed

that

his
his

supervisor did not always abide by this agreement, he left Warren
Pumps in 2005 simply to pursue another employment opportunity.
In 2008, Murray was recruited back to Warren Pumps by
his former supervisor Matt Korzec, and he resumed his prior duties
of monitoring workplace safety. Although his physical limitations
largely remained the same, his lifting restriction now was capped
at 10 pounds.

Additionally, Murray was restricted from extended

walking, standing and sitting, from climbing ladders, and from
using certain hand tools.

The company knew of these restrictions

when it rehired Murray and also knew that periodically he would
need time off to attend medical appointments.

As before, the

parties did not expect Murray to tax his physical limitations
while performing his normal job responsibilities. Therefore, they
again

agreed

that

Murray

should

self-monitor

his

workplace

activities and accommodate his back condition as necessary when
doing his job.
Throughout his second term of employment, Murray again
reported many workplace safety violations pursuant to his job
- 4 -

Case: 13-2133

Document: 00116989788

duties.

He

was,

however,

Page: 4

often

Date Filed: 04/25/2016

dissatisfied

with

Entry ID: 5994205

Korzec's

decisions about whether and how to rectify reported problems.
Murray also disliked that Korzec sometimes requested him to take
on tasks involving some measure of physical labor.
many

of

the

requested

restrictions.

tasks

conflicted

with

To Murray,

his

physical

On occasion Murray voiced an objection, but many

times he did not.
In the spring of 2011, Murray decided to take his
complaints about workplace safety to the company's headquarters.
He alerted the company about the practices of a welder at the
plant

who,

Murray

alleged,

had

been

using

a

"vertical

and

overhead" position without proper certification for doing so.
Murray also reported that Korzec had been "breaking laws" and had
allowed "unapproved repairs to castings to the [Department of
Defense's] and customers['] equipment."

He urged the company to

"[d]o a little research and see how many castings or screws have
failed and how many were repaired on weekends [w]ith no inspection
people around."

Within a week, Greg Miller, the vice president

of quality for defendant Colfax, met with Murray to discuss his
concerns

about

the

welding

practices.

As

a

result,

Miller

reviewed the particular welder's time cards and customer files
but discovered nothing to substantiate Murray's complaints.
- 5 -

Case: 13-2133

Document: 00116989788

Page: 5

Date Filed: 04/25/2016

Entry ID: 5994205

Murray's employment with Warren Pumps ended on June 1,
2011.

During a meeting with him that day, Crystal Baker, the vice

president of human resources, and Brian Mills, the vice president
of manufacturing, told Murray that he seemed "unhappy" working at
Warren Pumps.

They presented him with two options for separation:

a severance package or a six-week sunset term.
neither, and he was terminated.

Murray accepted

Murray, in turn, filed this

action alleging federal and state disability discrimination claims
and a state wrongful discharge claim.

After discovery, the

defendants secured summary judgment on all counts.

See Murray v.

Warren Pumps, LLC, No. 11-40176-DPW, 2013 WL 5202693 (D. Mass.
Sept. 12, 2013).

This timely appeal followed.
II.

We review de novo the district court's decision to award
the defendants summary judgment.

Henry, 686 F.3d at 54.

A moving

party is to be spared a trial when there is no genuine issue of
any material fact on the record and that party is entitled to
judgment as a matter of law.

See Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986).

Where a

defendant's motion for summary judgment demonstrates "an absence
of evidence to support the nonmoving party's case," Celotex, 477
- 6 -

Case: 13-2133

Document: 00116989788

Page: 6

Date Filed: 04/25/2016

Entry ID: 5994205

U.S. at 325, the plaintiff must adduce specific facts showing that
a trier of fact reasonably could find in his favor, Anderson, 477
U.S. at 249-50.

Conclusory allegations, improbable inferences,

and unsupported speculation will not make the grade.

See Celotex,

477 U.S. at 323-24; Pina v. Children's Place, 740 F.3d 785, 79596 (1st Cir. 2014).

The party's allegations must find adequate

support in the record.

See Celotex, 477 U.S. at 323-24; Pina,

740 F.3d at 796.
III.
The

ADA

prohibits

an

employer

from

discriminating

against an otherwise qualified individual based on a real or
perceived disability.

42 U.S.C. § 12112; see id. § 12102; 29

C.F.R. § 1630.2; see also Farris v. Shinseki, 660 F.3d 557, 562
(1st Cir. 2011); Orta-Castro v. Merck, Sharp & Dohme Química P.R.,
Inc., 447 F.3d 105, 112 (1st Cir. 2006).

The plaintiff bears the

burden of presenting evidence to establish each element under the
particular theory of disability discrimination alleged.

See

Lebron v. Commonwealth of Puerto Rico, 770 F.3d 25, 31 (1st Cir.
2014); Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.
2010); Quiles-Quiles v. Henderson, 439 F.3d 1, 6-7 (1st Cir.
2006).

Massachusetts has comparable prescriptions.

See M.G.L.

ch. 151B § 4(16); see also Godfrey v. Globe Newspaper Co., 928
- 7 -

Case: 13-2133

Document: 00116989788

Page: 7

Date Filed: 04/25/2016

Entry ID: 5994205

N.E.2d 327, 333-38 (Mass. 2010); Dartt v. Browning-Ferris Indus.,
Inc., 691 N.E.2d 526, 528, 530-33 (Mass. 1998); Tate v. Dep't of
Mental Health, 645 N.E.2d 1159, 1165 (Mass. 1995).
Murray advances three distinct theories of disability
discrimination:

failure to provide reasonable accommodations,

disability harassment, and retaliatory discharge.

Our careful

review of the record confirms the district court's assessment that
Murray cannot establish a prima facie case on any of his three
theories.

We address each in turn, evaluating the ADA and state

analog claims in tandem given their substantive overlap in this
case.

See Henry, 686 F.3d at 58-59.

We proceed on the assumption

that the evidence allows for a finding that Murray has a qualifying
handicap or disability under state and federal law.
A.
An employer must make "reasonable accommodations to the
known

physical

individual

with

.
a

.

.

limitations

disability."

of

42

an

otherwise

U.S.C.

§

qualified

12112(b)(5)(A).

Reasonable accommodations are modifications or adjustments to the
work environment, or to the manner in which the position's duties
are customarily performed, that enable a qualified individual with
a disability to perform the essential functions of that position.
See 29 C.F.R. § 1630.2(o).

An employer is obligated to provide a
- 8 -

Case: 13-2133

Document: 00116989788

Page: 8

Date Filed: 04/25/2016

Entry ID: 5994205

reasonable accommodation (as long as it is not unduly burdensome)
where a protected employee has requested an accommodation or the
employer otherwise knew that one was needed.

See Jones v.

Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012).
employee's

request

for

an

accommodation,

however,

The

"must

be

sufficiently direct and specific, and it must explain how the
accommodation is linked to the [employee's] disability" in order
to trigger the employer's responsibility to accommodate.
see

Ocean

Spray

Cranberries,

Inc.

v.

Mass.

Comm'n

Id.;

Against

Discrimination, 808 N.E.2d 257, 267-68, 270-71 (Mass. 2004).
In his complaint, Murray alleged that he had requested
"time off and other accommodations for his disability, such as
light duty, lifting restrictions, and to take breaks in order to
raise his legs/feet, and for time off for medical treatment," but
that Warren Pumps "denied some of those requests."

Thus, to

resurrect his failure to accommodate claim, Murray must point to
evidence in the record allowing a rational jury to find that he
requested an accommodation (or that Warren Pumps had reason to
know of his need for one) but that Warren Pumps refused reasonably
to accommodate him.

See Jones, 696 F.3d at 89.

failed to do.

- 9 -

This he has

Case: 13-2133

Document: 00116989788

Page: 9

Date Filed: 04/25/2016

We start by clearing some underbrush:

Entry ID: 5994205

we set aside

those portions of Murray's deposition testimony that only broadly
suggest requests for accommodation.

For example, he generally

testified that he sought breaks from "time to time," without
detailing any particular occasions or explaining whether and how
Warren Pumps actually denied any such requests.

This vague and

incomplete testimony has little evidentiary value.

See Celotex,

477 U.S. at 323-24; Pina, 740 F.3d at 795-96.
Much of the remainder of Murray's deposition testimony
is similarly murky. He does identify some isolated instances when
Korzec asked him to perform tasks involving manual labor that
Murray

viewed

as

conflicting

with

his

medical

restrictions.

Murray's own description of the events, however, conclusively
shows

that

he

failed

to

alert

Korzec

to

his

need

for

an

accommodation on these occasions, and that when he did speak up,
Korzec did not compel him to perform the manual labor.

A few

illustrations will suffice.
Murray

testified

that,

sometime

in

2010,

Korzec

required everyone to be involved in a shop-wide painting project.
Murray told Korzec that he was unable to do the work.

Korzec,

apparently

readily

irritated,

"walk[ed]

away."

But

Murray

acknowledged in his deposition that Korzec did not tell him "to
- 10 -

Case: 13-2133

Document: 00116989788

Page: 10

Date Filed: 04/25/2016

go back and paint," and that he did not do so.

Entry ID: 5994205

Such an incident

cannot support a finding that the company refused a request for
an accommodation.
Murray also described an occasion sometime in 2011 when
Korzec asked him to perform a wiring job. When Murray told Korzec
that he was physically unable to do the work, Korzec told Murray
to

"get

it

"pull[ing]

done

somehow."

somebody

else

Murray

off

the

accomplished

floor

to

do

the

it."

job
He

by

also

personally participated to some degree by carrying a toolbox in
excess of ten pounds.

To the extent that it can be said that

Murray asked for an accommodation on this occasion, there is no
evidence that Korzec pressured Murray to perform the physical
labor

himself.

Instead,

Murray

--

with

Korzec's

apparent

acquiescence -- used another employee to complete the task.
Moreover, there is no evidence that would allow a finding that
Warren Pumps was responsible for Murray's personal decision to
violate his lifting restriction.
On another occasion, Korzec asked Murray to oversee a
project that involved extended walking between both ends of the
large production facility.

This time, however, Murray did not

inform Korzec of his need for an accommodation to curb any
excessive

walking

that

day.

During

- 11 -

his

deposition,

Murray

Case: 13-2133

Document: 00116989788

Page: 11

Date Filed: 04/25/2016

Entry ID: 5994205

explained that Korzec was unavailable at the time because he had
already left the premises for the day.

Yet, Murray conceded that

he made no effort to tell anyone at the facility that he needed
help with the task.

Without a request for an accommodation, the

company, in the circumstances of this case, cannot be faulted for
failing to provide one.
Murray argues that the viability of his claim does not
require evidence that he actually asked for an accommodation when
Korzec instructed him to perform a strenuous task, or that Korzec
actually compelled him to violate his medical restrictions on any
particular occasion.

It is enough, Murray contends, that Korzec

"deliberately requested" that he perform tasks that would cause
him

"to

violate

his

medical

granted by Warren Pumps."

restrictions

and

accommodations

Whether or not this position might be

tenable under other circumstances, it is unavailing in this case.
See generally Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261
n.7 (1st Cir. 2001) (stating that different rules may apply when
the "employee's need for an accommodation is obvious").
An otherwise qualified employee with a disability who
may need differing accommodations at different times (depending
on his physical restrictions and varying job duties) will not be
protected under the law when he fails to alert his employer that
- 12 -

Case: 13-2133

Document: 00116989788

Page: 12

Date Filed: 04/25/2016

Entry ID: 5994205

a particular task requested of him conflicts with a medical
restriction.

See Enica v. Principi, 544 F.3d 328, 339-40 (1st

Cir. 2008); Reed, 244 F.3d at 260-61; see also E.E.O.C. v. Kohl's
Dept.

Stores,

Inc.,

774

F.3d

127,

133-34

(1st

Cir.

2014)

(discussing mutual responsibilities for the interactive process).
"The employer has no duty to divine the need for a special
accommodation where the employee merely makes a mundane request
for a change at the workplace," Reed 244 F.3d at 261, or simply
relies

on

the

accommodations

employer's

general

where

purported

the

awareness
conflict

of

his

with

need
a

for

medical

condition in particular situations is not obvious, Enica, 544 F.3d
at 339-40.

See also Russell v. Cooley Dickinson Hosp., Inc., 772

N.E.2d 1054, 1063-66 (Mass. 2002) (summary judgment appropriate
where the record established that the accommodations were "never
requested or even suggested by the plaintiff").
Warren

Pumps

and

Murray

together

established

the

boundaries of a reasonable accommodation from the outset of his
second term of employment in 2008.

Murray agreed to self-monitor

whether certain tasks were stressing his physical abilities, and
to make appropriate adjustments himself or request accommodation.
Although he insists throughout his deposition testimony that
Korzec already "knew" of his restrictions, Murray makes no effort
- 13 -

Case: 13-2133

Document: 00116989788

Page: 13

Date Filed: 04/25/2016

Entry ID: 5994205

to account for the self-directed and discretionary nature of his
mutually agreed accommodation.

Nor does he account for the

undisputed fact that Korzec was in charge of supervising fiftyfive to sixty people on a regular basis.
Instead,

the

undisputed

facts

presented

in

the

sufficiently detailed parts of Murray's deposition testimony show
that when he did specifically inform Korzec of his need to make
adjustments or to decline to do a task, Korzec did not push him
to perform the job personally.

Furthermore, by Murray's account,

Warren Pumps accommodated many of his specific directives whether
or not they were related to his back condition.
Murray's

request

for

time

off

in

order

to

Examples include
attend

medical

appointments, for help with lifting cables, and for changes to
his work schedule.
In the end, we are left with a record in which Murray
himself simply assumed that Korzec's actions were "deliberate"
requests to violate his medical restrictions, and the evidence
proffered either fails to support or affirmatively belies his
subjective assumption.

Cf. Pilgrim v. Trustees of Tufts Coll.,

118 F.3d 864, 871 (1st Cir. 1997) (noting that a plaintiff's
"perception is not evidence" of employment discrimination, and,
hence, "not enough to withstand summary judgment").
- 14 -

In the

Case: 13-2133

Document: 00116989788

Page: 14

Date Filed: 04/25/2016

Entry ID: 5994205

circumstances of this case, Warren Pumps cannot be faulted, as a
matter of law, either when Murray opted to remain silent or when
he voluntarily chose to participate in certain activities, or when
he otherwise failed to police his own physical needs (as the
parties had agreed).

See Enica, 544 F.3d at 339-40; Reed, 244

F.3d at 261.
Accordingly, we affirm the district court's decision to
award

summary

judgment

to

the

defendants

on

the

claim

failure

for

to

accommodate claims.
B.
Murray

has

also

pursued

a

harassment under a hostile work environment theory.1

disability
To succeed,

a hostile work environment claim requires, in addition to proof
of other elements, evidence that the discriminatory conduct was
"sufficiently severe or pervasive so as to alter the conditions
of employment and create an abusive work environment."

1

Ponte v.

See Quiles-Quiles v. Henderson, 439 F.3d 1, 5 n.1, 7 (1st
Cir. 2006) (assuming that disability harassment under a hostile
work environment theory is a viable ADA claim); Colón-Fontánez v.
Municipality of San Juan, 660 F.3d 17, 43-44 (1st Cir. 2011)
(citing to Quiles-Quiles to apply hostile work environment theory
under ADA). But see Rocafort v. IBM Corp., 334 F.3d 115, 120 (1st
Cir. 2003) (declining to decide whether "hostile work environment
claims exist under the ADA"); see also Barton v. Clancy, 632 F.3d
9, 20 n.7 (1st Cir. 2011) ("The SJC has not specifically confirmed
that Massachusetts recognizes a claim for a hostile work
environment based on handicap under ch. 151B, § 4(16).").
- 15 -

Case: 13-2133

Document: 00116989788

Page: 15

Date Filed: 04/25/2016

Entry ID: 5994205

Steelcase Inc., 741 F.3d 310, 320 (1st Cir. 2014) (internal
quotation marks omitted); see Noviello v. City of Boston, 398 F.3d
76, 92 (1st Cir. 2005) (outlining various requirements for a
retalitory hostile work environment sexual harassment claim); see
also Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 937
(Mass. 2001) (similar standard).

Such a claim is not factually

viable on this record.
In his complaint, Murray averred that he was subject to
"harassment" and "treated differently" based on "his real or
perceived disability and medical condition" and was "severely and
adversely affected by the Defendants' conduct and [their failure]
to take reasonable steps to ensure that the discriminatory conduct
and harassment would not continue."

His harassment claims rest

on comments and conduct by Korzec and by Nicole Belechto, a
corporate recruiter for Colfax.
First, he points to "snide comments" that Korzec made
to him when Murray was unable to perform certain tasks.

For

example, Korzec told him that he "could work faster," that he
might accomplish more if he were at the shop more, and that "a
younger

person

could

do

[the

task]

very

easily."

However,

Murray's rather generic deposition testimony ended there.

He did

not tie Korzec's statements to any particular event or otherwise
- 16 -

Case: 13-2133

Document: 00116989788

Page: 16

Date Filed: 04/25/2016

Entry ID: 5994205

provide surrounding details to place the remarks in context.

In

fact, Murray acknowledged that he could not even identify when
Korzec made any such comments, other than generally stating that
they occurred sometime in 2011.

Accordingly, Korzec's statements

fit into the category of isolated, stray remarks whose substance
and frequency cannot provide adequate foundation for a hostile
work environment claim.

Cf. Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998) ("[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment."
(internal quotation marks and citation omitted)).
Next,

Murray

avers

that

the

"questioning"

that

he

endured from Korzec and Belechto about his need for time off for
medical appointments constitutes harassment.

As the district

court emphasized, however, Murray provided no evidence tending to
show that these inquiries by his supervisor and by the human
resources officer "fell outside the appropriate and necessary
duties of their jobs."
at *18.

Murray, No. 11-40176-DPW, 2013 WL 5202693,

Indeed, our own review of Murray's somewhat muddled

testimony leaves us uncertain whether the nature of the company's
inquiries even related to his back condition at all.
v.

Shinseki,

629

F.3d

49,

59

(1st

- 17 -

Cir.

2010)

See Ahern

("[G]enerally

Case: 13-2133

Document: 00116989788

Page: 17

Date Filed: 04/25/2016

Entry ID: 5994205

disagreeable behavior and discriminatory animus are two different
things.").
All told, these minor instances of employment skirmishes
cannot

ground

Murray's

hostile

work

environment

claims.2

Therefore, the district court's ruling in favor of the defendants
on this theory of relief must be upheld.

C.
Murray's
discharge.

final

disability

theory

is

retaliatory

The ADA and its state analog both forbid an employer

from retaliating against a protected employee when that employee
engages in protected activity.

See Lebron, 770 F.3d at 31; Tate,

645 N.E.2d at 1165. Murray averred in his complaint that the
company's decision to terminate him on June 1, 2011 was motivated
at least in part by his requests for reasonable accommodations
and by his complaints about harassment.
would be protected activity.

Such conduct by Murray

See Valle-Arce v. P.R. Ports Auth.,

651 F.3d 190, 198 (1st Cir. 2011); Wright v. CompUSA, Inc., 352
F.3d 472, 478 (1st Cir. 2003); see also Tate, 645 N.E.2d at 1165;
cf. Abramian v. President & Fellows of Harvard Coll., 731 N.E.2d

2

In his brief, Murray also attributes to Belechto a specific
remark disparaging disabled persons. But this factual averment
is insufficiently developed in the summary judgment record.
- 18 -

Case: 13-2133

Document: 00116989788

1075, 1087 (Mass. 2000).

Page: 18

Date Filed: 04/25/2016

Entry ID: 5994205

But a successful retaliation claim also

requires proof that, among other things, there was a causal
connection between the protected activity and the adverse action
taken by the employer.

See Lebron, 770 F.3d at 31.

When, as now,

an employee relies solely on a chronological relationship between
the

protected

activity

and

later

termination

to

support

"an

inferred notion of a causal connection between the two," "the
temporal proximity must be very close."
(internal quotation marks omitted).

Ahern, 629 F.3d at 58

Murray's claim stumbles at

this step.
Murray's more definite requests for accommodation, one
in 2008 when he was rehired, and arguably one in 2010 when he
declined to assist in a shop-wide painting project, are too remote
from the decision to terminate his employment in June 2011.

For

that

the

reason,

they

required nexus.

do

not

constitute

useful

evidence

of

See id. ("[W]hen the interval between a complaint

and the alleged retaliation is attenuated, chronological data, by
itself, does not forge the causal link needed to establish a prima
facie case of retaliation.").
Murray's resistance to the wiring job sometime in 2011
also provides an insufficient basis to infer a nexus.

See id.

(holding that the lack of evidence specifying when material events
- 19 -

Case: 13-2133

Document: 00116989788

Page: 19

Date Filed: 04/25/2016

Entry ID: 5994205

occurred renders "any temporal link . . . entirely conjectural");
see also Mole v. Univ. of Mass., 814 N.E.2d 329, 339 (Mass. 2004).
And

Murray's

assertion

that

he

made

numerous

requests

for

accommodations after March 2011 when he returned to a full-time
work schedule lacks support in the record. For the reasons earlier
discussed, all of the times that Murray stayed silent when Korzec
asked him to perform a task that he saw as conflicting with his
medical restrictions do not amount to protected activity on this
record.

This is especially so since Murray himself testified that

he and Korzec only spoke "maybe three times" during the last six
months of his employment.
Turning to whether Murray can establish a nexus between
his

complaints

about

disability

harassment

and

the

alleged

retaliation, the record shows that he told a human resources
employee in June or July of 2010 that he had been "hired with
certain restrictions and that . . . [Korzec] didn't care."
also

testified

that

he

made

some

undescribed) to Belechto in 2010.

complaints

(generally

He
left

As best we can tell, these

isolated complaints occurred six months to a year prior to his
termination,

which

is

too

remote

in

time

from

the

adverse

employment action to establish a retaliation nexus on this record.
See generally Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,
- 20 -

Case: 13-2133

Document: 00116989788

Page: 20

Date Filed: 04/25/2016

Entry ID: 5994205

25 (1st Cir. 2004) (periods of three or four months have been held
insufficient to establish the necessary causal connection for a
prima facie case of retaliation).

Each instance of protected

activity to which Murray points lacks a temporal connection to
the adverse action against him.

See Ahern, 629 F.3d at 58.

We also note that there is a lack of evidence that the
two company vice presidents who met with Murray and took personnel
action against him had knowledge of his protected activity.
district

court

record

is

bereft

of

evidence

that

The

Murray

established or even pressed that either Baker or Mills had such
knowledge.

See Pomales v. Celulares Telefónica, Inc., 447 F.3d

79, 85 (1st Cir. 2006) (emphasizing the necessity of the decisionmaker's knowledge); Mole, 814 N.E.2d at 343-44 (same).
Accordingly, we affirm the district court's decision to
grant

summary

judgment

in

favor

of

the

defendants

on

the

retaliation claims as well.
There is one more stone to turn in addressing the
accommodation, harassment, and retaliation claims in this case.
On

appeal,

accident.

Murray
The

mentions

district

ailments

court

ruled

related
that

to

the

a

2010

car

temporary

and

isolated "new" ailments tied to the car accident (e.g., whiplash,
right leg pain, and headaches) that Murray identified for the
- 21 -

Case: 13-2133

Document: 00116989788

Page: 21

Date Filed: 04/25/2016

Entry ID: 5994205

first time during his deposition could not form a foundation for
either a state or federal disability discrimination claim.
Murray,

No.

11-40176-DPW,

2013

WL

5202693,

at

*5.

See

Despite

scattered references to his car accident injuries throughout his
appellate brief, Murray describes his disability as solely based
on his "more permanent back impairment" -- which is in line with
his complaint.

In his reply brief, however, Murray attempts to

challenge the court's decision limiting his putative disability
to his back condition alone.

His delayed advocacy, first raised

in his reply brief, warrants no judicial review.

See Butler v.

Deutsche Bank Trust Co. Americas, 748 F.3d 28, 36 (1st Cir. 2014).
IV.
This leaves Murray's attempt to resurrect his state
common law claim for wrongful termination.
Murray

alleged

that

Warren

Pumps

retaliated

In his complaint,
against

him for

reporting to management serious safety concerns that he believed
amounted to violations of federal or state law.

We, however,

agree with the district court that Murray failed to carry his
burden

of

sufficiently

establishing
important

that
and

his

clearly

termination
defined

implicates

public

policy

a
in

Massachusetts.
The baseline common law rule in Massachusetts is that
an employer may lawfully terminate a relationship with an at-will
- 22 -

Case: 13-2133

Document: 00116989788

Page: 22

Date Filed: 04/25/2016

Entry ID: 5994205

employee at any time -- for any reason, for no reason, and even
for a reason that might be seen by some as unwise or unkind.

See

Upton v. JWP Businessland, 682 N.E.2d 1357, 1358-59 (Mass. 1997);
King v. Driscoll, 638 N.E.2d 488, 492-93 (Mass. 1994).

As a

narrow exception, the Commonwealth protects at-will employees from
terminations that conflict with sufficiently important and clearly
defined public policies in Massachusetts.

See King, 638 N.E.2d

at 493; Wright v. Shriners Hosp. for Crippled Children, 589 N.E.2d
1241, 1244 (Mass. 1992); Mello v. Stop & Shop Cos., Inc., 524
N.E.2d 105, 106 (Mass. 1988).

However, not all statutes relating

to an employer's discharge decision are pronouncements of public
policy

that

"will

protect,

in

employee from termination."

every

instance,

an

King, 638 N.E.2d at 493.

[at-will]
Indeed,

Massachusetts courts "have acknowledged very few statutory rights
the exercise of which would warrant invocation of the public
policy exception."

Id.

Thus far, the state's highest court has

held that "[r]edress is available for employees who are terminated
for asserting a legally guaranteed right (e.g., filing workers'
compensation

claim),

for

doing

what

the law requires (e.g.,

serving on a jury), or for refusing to do that which the law
forbids

(e.g.,

committing

perjury)."

- 23 -

Smith-Pfeffer

v.

Case: 13-2133

Document: 00116989788

Page: 23

Date Filed: 04/25/2016

Entry ID: 5994205

Superintendent of the Walter E. Fernald State Sch., 533 N.E.2d
1368, 1371 (Mass. 1989).
Beyond these categories, legal redress may be available
"in certain circumstances for employees terminated for performing
important public deeds, even though the law does not absolutely
require the performance of such a deed."

Flesner v. Technical

Commc'ns Corp., 575 N.E.2d 1107, 1111 (Mass. 1991).

This limited

extension of the public policy exception aligns with the SmithPfeffer categories because "allowing the employer to terminate
employees for reasons that directly contradict the public policy
of the Commonwealth would seriously impair that policy."
see Upton, 682 N.E.2d at 1358-59.

Id.;

By contrast, the public policy

exception does not protect at-will employees from termination for
performing generally socially desirable duties or for raising
workplace complaints about internal company matters.

See, e.g.,

Wright, 589 N.E.2d at 1245 (state law does not extend the public
policy

exception

"to

protect

employees

who

were

performing

'appropriate, socially desirable duties' from being subject to
discharge without cause"); King, 638 N.E.2d at 492 (state law
establishes

that

"the

internal

administration,

policy,

functioning, and other matters of an organization cannot be the

- 24 -

Case: 13-2133

Document: 00116989788

Page: 24

Date Filed: 04/25/2016

Entry ID: 5994205

basis for a public policy exception"); see also Upton, 682 N.E.2d
at 1358-59 (collecting cases).
The burden lies with the at-will employee to establish
that the substance of his workplace complaints for which he was
discharged bears a direct connection to a sufficiently important
and clearly defined public policy that warrants his protection
from termination.

See Mello, 524 N.E.2d at 107; Falcon v. Leger,

816 N.E.2d 1010, 1019 (Mass. App. Ct. 2004).

And, "[i]t is a

question of law for the judge to decide whether a retaliatory
firing [of an at-will employee] in [given] circumstances would
violate public policy."

Wright, 589 N.E.2d at 1243.

Taking our cue from Murray's pleadings in the district
court, we focus primarily on his reports in the spring of 2011
about unsafe welding practices during the manufacturing of the
pumps.

See Mole, 814 N.E.2d at 341 (requiring a close temporal

connection for an inference of a retaliatory nexus).

As noted

earlier, because he was generally dissatisfied with Korzec's
responses to his safety complaints, Murray brought his welding
concerns directly to corporate headquarters.

The substance of

the alleged safety violations was that a welder was following an
uncertified protocol and that unapproved repairs were being made
on weekends.

According to the undisputed evidence, Miller, a
- 25 -

Case: 13-2133

quality

Document: 00116989788

control

executive,

Page: 25

listened

Date Filed: 04/25/2016

to

Murray's

Entry ID: 5994205

complaints,

conducted an internal investigation, and found the complaints to
be unsubstantiated.

This same executive explained during his

deposition that the pumps undergo multiple inspections after the
manufacturing process in order to detect faulty parts before those
parts are used in end products.
With this evidentiary backdrop, Murray attempts to align
himself with the prevailing plaintiffs in Mercado v. Manny's T.V.
& Appliance, Inc., 928 N.E.2d 979 (Mass. App. Ct. 2010), and
Falcon v. Leger, 816 N.E.2d 1010 (Mass. App. Ct. 2004).3

But

their similarities with Murray's circumstances begin and end with
the existence of licensure requirements for trade work and of
regulations governing product safety.

Indeed, the plaintiffs in

both Mercado and Falcon had presented evidence that they were
fired for refusing to participate in unlawful or deceptive conduct
that directly compromised public safety.

3

See, e.g., Mercado, 928

Murray also relies on Hobson v. McClean Hosp. Corp., which
is helpful only insofar as it sets forth the general legal
proposition that employees who are fired for enforcing safety
regulations for which they are responsible may pursue a claim for
wrongful discharge under the public policy exception. 522 N.E.2d
975, 977-78 (Mass. 1988). The Hobson court merely allowed the
complaint to survive a motion to dismiss, nothing more. We face
a summary judgment disposition in which Murray has had plenty of
opportunity to present a sound basis for protection under the
narrow public policy exception.
- 26 -

Case: 13-2133

Document: 00116989788

Page: 26

Date Filed: 04/25/2016

Entry ID: 5994205

N.E.2d at 984-85 (identifying evidence that the employee was fired
after refusing to perform unlicensed installations of appliances
in violation of municipal regulations directly implicating public
safety

in

residential

homes);

Falcon,

816

N.E.2d

at

1015-19

(identifying evidence that the employee was fired after refusing
to deceive an on-site safety inspector by covering up faulty
electrical products which directly compromised consumer safety).
By contrast, Murray presents no evidence that Warren
Pumps asked him to deceive anyone about the legality of the
company's conduct or fired him for refusing to engage in conduct
tantamount to fraud or known illegalities. There also is no
evidence that anyone at Warren Pumps attempted to subvert Murray's
performance of his job as safety compliance officer in order to
mask the company's suspected illegal conduct.

Nor is there

evidence that Murray's welding complaints directly implicated
public

health

and

safety,

particularly

given

the

undisputed

testimony that all aspects of the company's pumps were regularly
subjected to rigorous safety inspections designed to reveal flaws
that would compromise public safety.

Cf. King, 638 N.E.2d at 493

(emphasizing that remoteness between employee's complaints of
corporate conduct and the impact on public safety foreclosed
relief under the public policy exception); Mistishen v. Falcone
- 27 -

Case: 13-2133

Document: 00116989788

Page: 27

Date Filed: 04/25/2016

Entry ID: 5994205

Piano Co., Inc., 630 N.E.2d 294, 296 (Mass. App. Ct. 1994) (similar
analysis).
Writ large, Murray's circumstances align better with
Massachusetts cases in which the state court held that an at-will
employee -- with perhaps laudable expectations for workplace
practices

--

was

discharged

lawfully

for

performing

general

socially desirable duties or for disagreeing with internal company
matters.

In Smith-Pfeffer, for instance, the state court held

the public policy exception did not protect an employee for her
actions in opposing management policies and organizational issues
that she saw as potentially compromising the care of the mentally
impaired residents.

533 N.E.2d at 1371-72.

And in Wright, the

court held that it was not an actionable violation of a welldefined public policy to discharge a director of nursing for
repeatedly

reporting

to

the

hospital's

national

headquarters

managerial deficiencies that she saw as potentially compromising
the quality of patient care.

589 N.E.2d at 1244-45.

Along the

way, the state court has been clear that "[a]n employee, even one
in a socially important occupation, who simply disagrees with her

28

Case: 13-2133

Document: 00116989788

Page: 28

Date Filed: 04/25/2016

Entry ID: 5994205

employer's policy decisions, may not seek redress in the courts."
Smith-Pfeffer, 533 N.E.2d at 1372.4
Even broadening the lens to other workplace complaints
that Murray raised in the time frame immediately prior to his
termination does not help him.

Murray cites a hodgepodge of

miscellaneous state laws, federal regulations, and professional
standards to anchor his argument that his termination for raising
these

sundry

complaints

violates

clearly defined public policy.

sufficiently

important

and

He provides, however, no cases

showing that Massachusetts courts have ever relied on federal
authority as the sole source for the state common law wrongful
discharge claim.

See Upton, 682 N.E.2d at 1359; Flesner, 575

N.E.2d at 1111.

Additionally, many of the federal regulations

and state statutes remain decidedly unrelated to, or have no more
than a general connection to, the particular substance of certain
workplace complaints that he described.

See, e.g., 29 C.F.R. §

1910.253(a)(4); M.G.L. ch. 143, § 3L; id. ch. 141, § 5.

4

And,

Importantly, Massachusetts courts recently have emphasized
that the viability of an at-will safety compliance officer's
wrongful discharge claim may depend on evidence that the reported
workplace violations involved a fairly imminent threat to public
health or safety. See Nelson v. Anika Therapeutics, Inc., No.
09-03231-A, 2011 WL 4056320, at *7-8 (Mass. Super. Ct. Aug. 12,
2011); Chernov v. Home Depot, Inc., No. 09-P-1567, 2010 WL
4178937, at *2 (Mass. App. Ct. Oct. 26, 2010) (unpublished
opinion). Evidence of such imminence is lacking here.
29

Case: 13-2133

Document: 00116989788

Page: 29

Date Filed: 04/25/2016

Entry ID: 5994205

Murray fails to explain how professional standards embody a welldefined public policy in the Commonwealth.
at

1245.

Overall,

Murray's

bare

See Wright, 589 N.E.2d

citation

to

various

legal

requirements is insufficient advocacy to warrant appellate review.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); cf.
King, 638 N.E.2d at 493-94 (the existence of a statute relating
to a termination decision does not necessarily give rise to a
cognizable wrongful termination claim).
To sum up, Massachusetts courts recognize limitations
on the protection afforded to at-will employees under the public
policy exception.

And the Massachusetts cases warn that the

public policy exception is purposely circumscribed, so that the
general rule preserving employer prerogative does not morph into
an edict requiring just cause to terminate an at-will employee.
See, e.g., King, 638 N.E.2d at 492; Mercado, 928 N.E.2d at 983.
Because the district court adhered to the line drawn in the state
court decisions, its ruling on the common law claim also stands.
AFFIRMED.

30