Santangelo v. New York Life Insurance Co.

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [14-1912]

Case: 14-1912

Document: 00116819853

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Date Filed: 04/06/2015

Entry ID: 5898152

United States Court of Appeals
For the First Circuit

No. 14–1912
PETER SANTANGELO,
Plaintiff, Appellant,
v.
NEW YORK LIFE INSURANCE COMPANY,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.

Paula M. Minichiello, with whom Christopher G. Fallon and Law
Office of Christopher G. Fallon, PC were on brief, for appellant.
Jessica Unwin Farrelly, with whom William E. Hannum III and
Schwartz Hannum PC were on brief, for appellee.

April 6, 2015

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BARRON,

Circuit

Page: 2

Judge.

Date Filed: 04/06/2015

The

appellant

was

Entry ID: 5898152

a

life

insurance agent with the New York Life Insurance Company for more
than forty years before his termination.

He now contends that he

was an "employee" of New York Life and that in firing him New York
Life engaged in age discrimination in violation of both state and
federal law.

He also argues that New York Life wrongfully refused

to pay him a particular form of retirement compensation.

The

District Court granted summary judgment for New York Life on all of
these claims, and we affirm.
I.
Peter Santangelo started as a life insurance agent with
New York Life in the late 1960s.1
company started in July of 2006.

His difficulties with that
That was when New York Life

"Standards Consultant" John Quarella, Jr., conducted an audit of
Santangelo's files.

The audit turned up two forms (a dividend

withdrawal form and a life insurance application) related to New
York Life insurance policies that Santangelo's customers had signed
before the forms were completed.

A New York Life rule prohibited

agents from obtaining and retaining such incomplete signed forms.
The concern, presumably, was that an agent would later complete the
signed form and use it to make changes that the customer had not

1

We recite the relevant facts in the light most favorable to
Santangelo, the non-moving party.
See Soto-Feliciano v. Villa
Cofresí Hotels, Inc., 779 F.3d 19, 22 (1st Cir. 2015).
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authorized.

As

a

result

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Date Filed: 04/06/2015

of

audit,

the

New

York

Entry ID: 5898152

Life

gave

Santangelo a "Letter of Reprimand" in September of 2006.
One year later, in September of 2007, Quarella conducted
another audit of Santangelo's files.

The audit turned up three

more incomplete forms signed by customers (a dividend withdrawal
form, an annuity application, and a beneficiary form).

New York

Life then gave Santangelo a "Letter of Severe Reprimand" in March
of 2008.

In April of that year, New York Life also placed

Santangelo on "Enhanced Supervision," a status that subjected his
files to more frequent audits.

During one such audit, in December

of 2008, Quarella found two more incomplete forms signed by
Santangelo's

customers

in

Santangelo's

files

(an

annuity

application and an "agreement to exchange" form).
After that December 2008 audit, Quarella and Santangelo
met

with

James

A.

Robertson

III,

a

higher-level

"Standards

Consultant" at New York Life. They discussed Santangelo's repeated
violations.

Following

that

meeting,

Robertson

recommended

terminating Santangelo's agent contract.
On April 1, 2009, Santangelo received a letter from New
York

Life's

"upcoming

human

resources

retirement

on

May

department
1,

2009."

that

referred

Confused,

to

his

Santangelo

contacted New York Life's human resources department the next day,
April 2.

In response, Santangelo received a letter by fax from a

Senior Vice President of New York Life stating that Santangelo's

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agent contract would be terminated effective May 1, 2009. On April
7, Santangelo was denied access to the office space he rented in a
New York Life building and disconnected from New York Life's
computer network, notwithstanding the termination letter's stated
effective date.
Santangelo fought his termination on several fronts.
First, in December of 2009, he filed a "Charge of Discrimination"
with the Massachusetts Commission Against Discrimination ("MCAD").
Santangelo contended that New York Life terminated him because of
his age, in violation of both the federal Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and Massachusetts
General

Laws

discrimination.

Chapter

151B,

which

likewise

prohibits

age

In February of 2012, MCAD found no probable cause

to support further investigation of Santangelo's charge.

Then, in

May of 2013, MCAD denied Santangelo's administrative appeal of that
finding. Five months later, on October 31, 2013, the federal Equal
Employment Opportunity Commission ("EEOC") "adopted the findings
of" MCAD and closed its file on Santangelo's charge.2
Separately, in March of 2012, Santangelo -- represented
by counsel -- filed suit against New York Life in Massachusetts

2

Under a "worksharing agreement" between the federal
Commission and the Massachusetts Commission, charges filed with
either commission "are effectively filed with both agencies," and
"the EEOC affords the findings of the MCAD 'substantial weight.'"
Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n.1 (1st Cir. 2001)
(quoting 29 C.F.R. § 1601.21(e)).
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state court.

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This lawsuit alleged several common-law claims:

breach of contract, breach of the implied covenant of good faith
and fair dealing, promissory estoppel, unjust enrichment, and
quantum meruit.

New York Life removed that suit to the U.S.

District Court for the District of Massachusetts on diversity-ofcitizenship grounds in July of 2012, and moved for summary judgment
in October of 2013.
In January of 2014, while that summary judgment motion
was pending, Santangelo -- acting pro se -- filed a new suit
against New York Life in the U.S. District Court for the District
of Massachusetts. This suit alleged only age discrimination, under
both Massachusetts Chapter 151B and the federal ADEA.

After

Santangelo's counsel agreed to represent him in that suit as well,
the District Court consolidated the two cases.
moved

for

summary

judgment

on

all

the

New York Life then

claims

in

the

two

consolidated cases, and the District Court granted that motion.
See Santangelo v. N.Y. Life Ins. Co., No. 12-11295-NMG, 2014 WL
3896323 (D. Mass. Aug. 7, 2014).

Santangelo now appeals from that

judgment.
II.
We review the District Court's grant of summary judgment
de novo.

Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st

Cir. 2014).
the record."

"We may affirm such an order on any ground revealed by
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d

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178, 184 (1st Cir. 1999). In our review, we "consider[] the record
and all reasonable inferences therefrom in the light most favorable
to the non-moving part[y]."

Estate of Hevia v. Portrio Corp., 602

F.3d 34, 40 (1st Cir. 2010).

We may decide in favor of the moving

party -- here, New York Life -- "only if the record reveals 'that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'"

Avery v. Hughes, 661

F.3d 690, 693 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
III.
We start with Santangelo's age discrimination claims
under Massachusetts Chapter 151B and the federal ADEA.
the statutes are similar, they are not identical.

Although

See Diaz v.

Jiten Hotel Mgmt., Inc., 671 F.3d 78, 82 (1st Cir. 2012).

The

District Court granted summary judgment to New York Life on both
claims.

The District Court concluded that the undisputed facts

showed that Santangelo was an independent contractor and not an
employee of New York Life, and that each statute only protects
"employees."

But even assuming that Santangelo was an employee,

his age discrimination claims still fail.

And that is because his

state law claim is time-barred, and his federal law claim lacks any
factual showing of age discrimination.
A.
Massachusetts law required Santangelo to file suit on his
state law age discrimination claim "not later than three years

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after the alleged unlawful practice occurred." Mass. Gen. Laws ch.
151B, § 9.

Santangelo did not file suit on that claim until

January of 2014, nearly five years after the termination of his
contract with New York Life.

Santangelo points out that the

statute of limitations did not begin to run against him until he
knew

or

should

have

defendant's conduct."

known

that

he

had

been

"harmed

by

the

Silvestris v. Tantasqua Reg'l Sch. Dist.,

847 N.E.2d 328, 336 (Mass. 2006).

And Santangelo contends that he

did not have that kind of triggering knowledge until February 14,
2012, when MCAD issued a decision denying his administrative age
discrimination charge.
But Santangelo filed a charge of age discrimination in
violation of Chapter 151B with MCAD on December 15, 2009, well over
three years before he filed suit on his state discrimination claim
in 2014.

Santangelo does not explain how it could be that he had

enough information to file that administrative age discrimination
charge with MCAD, but not enough information to trigger the statute
of limitations on the Chapter 151B claim.

Nor does Santangelo

explain why he could not have filed a claim prior to MCAD's
February 2012 denial of his age discrimination charge, as he does
not identify any information that the denial provided him that he
would have needed to make such a filing. Santangelo's Chapter 151B
claim is thus time-barred.

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B.
That leaves Santangelo's federal ADEA claim.3 We address
that claim under "the familiar three-step framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)."

Soto-

Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 23 (1st Cir.
2015).

Here, we may assume that Santangelo made the required

"prima facie case of employment discrimination" to get past the
first step.4

Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447

(1st Cir. 2009).

There also is no question that New York Life, at

the second step, did what was required of it.

New York Life

responded to Santangelo's claim with the required "legitimate,
nondiscriminatory

reason"

for

terminating

Santangelo

--

his

repeated violations of New York Life's rule against maintaining
incomplete forms signed by customers. In fact, Santangelo does not
dispute that he repeatedly violated that rule.

He also does not

3

This claim is timely. The ADEA's ninety-day statute of
limitations did not begin to run until the EEOC denied Santangelo's
administrative claim on October 31, 2013, and he filed suit within
ninety days thereafter. See 29 U.S.C. § 626(e). New York Life
does contend that Santangelo's ADEA claim is barred by laches,
because Santangelo unreasonably delayed bringing it, to New York
Life's detriment.
We need not resolve this contention, as we
conclude that Santangelo's ADEA claim fails on the merits.
4

"In the context of an ADEA claim for discriminatory firing,
this requires a plaintiff to show that: 1) he was at least 40 years
old at the time he was fired; 2) he was qualified for the position
he had held; 3) he was fired, and 4) the employer subsequently
filled the position, demonstrating a continuing need for the
plaintiff's services." Vélez v. Thermo King de P.R., Inc., 585
F.3d 441, 447 (1st Cir. 2009).
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dispute the documentary evidence that shows New York Life took a
series of escalating disciplinary actions in response to those
violations.
That brings us to the third step of the McDonnell Douglas
framework.

At this step, the burden is on Santangelo to show that

New York Life's asserted reason for terminating him was a pretext
for terminating him because of his age.
447-48.

See Vélez, 585 F.3d at

To meet that burden, "[i]t is not enough for a plaintiff

merely to impugn the veracity of the employer's justification; he
must 'elucidate specific facts which would enable a jury to find
that the reason given is not only a sham, but a sham intended to
cover up the employer's real motive: age discrimination.'" Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) (quoting
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.
1990)).
Santangelo does point to facts in the record that he
contends cast doubt on whether his violations of New York Life's
incomplete-forms rule were the reason for his termination.5

But

even accepting that, Santangelo offers no evidence that could lead
a rational jury to conclude that "he was fired because of his age."
Soto-Feliciano, 779 F.3d at 25 (quoting Vélez, 585 F.3d at 452).
Nothing in the record shows, or even suggests, that New York Life

5

For example, Santangelo testified that he was not told that
his violations were the reason for his termination until eight
months after he was terminated.
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considered

Santangelo's

Page: 10

age

in

Date Filed: 04/06/2015

firing

him.

None

Entry ID: 5898152

of

the

contemporaneous materials concerning the disciplinary actions New
York Life took against Santangelo, including the termination,
mentions Santangelo's age.

Nor does Santangelo offer evidence (or

even allege) that his age ever came up during the disciplinary or
termination process.
Santangelo does allege that New York Life "hired hundreds
of younger agents with less experience than him."

He offers no

evidence, however, that any of those agents were hired to replace
him specifically. Similarly, Santangelo does argue -- based on his
own affidavit and his own deposition testimony -- that he was
"singled out and treated differently than his peers," because "it
was common for agents to have on file signed blank or partially
completed forms."

But Santangelo offers no evidence that these

allegedly differently treated "peers" were younger than him, and
thus no reason for concluding that this bare assertion constitutes
evidence that New York Life terminated him because of his age.
The

result

is

that

Santangelo's

claim

of

age

discrimination rests only on "conclusory allegations, improbable
inferences, and unsupported speculation." Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 167 (1st Cir. 1998) (quoting Smith v. Stratus
Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994)).

And because no

rational jury could conclude on this record that New York Life's
stated reason for terminating Santangelo -- his repeated violations

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of a New York Life rule -- was a pretext for age discrimination, we
affirm the District Court's grant of summary judgment to New York
Life.
IV.
That leaves only Santangelo's common-law claims under
Massachusetts law. In each, Santangelo contends that New York Life
wrongfully

deprived

him

of

a

retirement

benefit

called

"Supplemental Senior Nylic Income," or "SSNI."
What unites these claims, in broad strokes, is the
following. If Santangelo retired voluntarily, he could have chosen
to remain affiliated with New York Life under what is called an
"active Retired Agent's Contract."

Under that type of contract,

Santangelo would have been entitled to continue to sell New York
Life insurance products. And, as a result, he would also have been
eligible

for

SSNI

payments.

But

as

a

consequence

of

his

termination, Santangelo cannot select an "active Retired Agent's
contract."
Agent."

Rather, his status is that of an "inactive Retired

And someone with that status is not eligible for SSNI

payments.

Santangelo thus contends in each claim that he has been

wrongfully deprived of SSNI payments, even though he does not have
an "active Retired Agent's" contract.
Santangelo's first common-law claim is for breach of
contract.
breach

its

The District Court held that New York Life did not
contract

with

Santangelo

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because

New

York

Life's

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termination of Santangelo's agent contract meant that Santangelo
had no contractual right to SSNI payments.

Santangelo does not

challenge that holding on appeal. Instead, Santangelo now contends
that New York Life's termination of his agent contract was itself
a breach of contract because New York Life fired him in violation
of state and federal laws barring age discrimination in employment.
But "[t]his argument is raised for the first time on appeal without
citation to any pertinent authority, so it is both inadequately
presented and waived."

P.R. Tel. Co. v. T-Mobile P.R. LLC, 678

F.3d 49, 58 n.5 (1st Cir. 2012).
Santangelo's next common-law claim -- for breach of the
implied covenant of good faith and fair dealing -- also fails at
the summary judgment stage.

Massachusetts law provides that

"[e]very contract implies good faith and fair dealing between the
parties to it."

Anthony's Pier Four, Inc. v. HBC Assocs., 583

N.E.2d 806, 820 (Mass. 1991) (quoting Warner Ins. Co. v. Comm'r of
Ins., 548 N.E.2d 188, 193 n.9 (Mass. 1990)).

Under that implied

duty, neither party may "do anything that will have the effect of
destroying or injuring the right of the other party to receive the
fruits of the contract." Id. (quoting Drucker v. Roland Wm. Jutras
Assocs., 348 N.E.2d 763, 765 (Mass. 1976)).

It is therefore a

breach of the implied duty for a party to exercise its own
contractual right as a "tool engineered to serve th[e] illicit
purpose" of undermining his counterparty's contractual rights. Id.

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at 820-21 (alteration in original) (quoting N. Heel Corp. v. Compo
Indus., Inc., 851 F.2d 456, 471 (1st Cir. 1988)).
In an effort to show that New York Life breached this
duty -- and thus that he should be able to affiliate with New York
Life as an active Retired Agent and receive SSNI payments -Santangelo asserts that New York Life terminated his contract in
bad faith because it fired him in order to avoid paying him SSNI
payments.

But Santangelo offers no evidentiary support for that

claim.
Nothing in the record suggests that New York Life so much
as considered SSNI payments in making its termination decision.
The District Court did find that New York Life was "clumsy" or
"incompetent" in informing Santangelo of his termination. New York
Life at points referred to his "retirement" and gave an effective
date for his termination different from the date on which he was
actually terminated, locked out of his office, and disconnected
from the company's computer network.

But we agree with the

District Court that this evidence does not supply a rational jury
with a basis for finding that New York Life fired him for the
purpose of denying him SSNI payments.6

6

And without some such

Santangelo argues that New York Life's purpose in locking
him out and disconnecting his computer was to prevent him from
electing the "active Retired Agent's contract" that would have
entitled him to SSNI payments.
Thus, he seems to contend, the
lockout and disconnection show that New York Life had the purpose
of denying him those payments.
But as the District Court
explained, "[e]ven if [Santangelo] had access to his computer
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evidence of that illicit motive,7 Santangelo cannot survive summary
judgment on his claim for breach of the implied duty of good faith.
Santangelo's third common-law claim is for "promissory
estoppel."

Massachusetts law recognizes the doctrine, although it

"do[es] not use the expression 'promissory estoppel'" to describe
it. R.I. Hosp. Trust Nat'l Bank v. Varadian, 647 N.E.2d 1174, 1179
(Mass. 1995) (quoting Loranger Constr. Corp. v. E. F. Hauserman
Co., 384 N.E.2d 176, 179 (Mass. 1978)). For the doctrine to apply,
the defendant must have made a promise that the defendant would
"reasonably

expect

to

induce

action

or

forbearance"

by

the

plaintiff, and the plaintiff must in fact have relied on that
promise. Id. at 1178-79 (quoting Restatement (Second) of Contracts
§ 89B(2) & illus. 6 (Tent. drafts Nos. 1-7, 1973)).
Here, Santangelo contends that New York Life promised him
that he would receive SSNI payments if he completed thirty years of
service, that New York Life should have expected him to rely on
that promise, and that he in fact relied on that promise.

But

Santangelo nowhere contends that he was promised he would be

during that entire period, he would not have been eligible to elect
such a contract" because he was being terminated. Santangelo does
not argue otherwise. The lockout and disconnection do not provide
evidence from which a rational jury could find that New York Life
acted with the purpose of denying Santangelo SSNI payments.
7

To the extent Santangelo now seeks to use his allegations
of age discrimination to support a showing of bad faith, that
argument is waived for both failure to present it below and failure
to cite any pertinent authority. See P.R. Tel. Co., 678 F.3d at 58
n.5.
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eligible for the SSNI payments even if he was terminated prior to
retirement.

Nor does Santangelo contend that he was told that the

SSNI booklet, which contained the written terms of the SSNI
program, would not apply to him. In fact, Santangelo concedes that
the SSNI booklet "set forth . . . the prerequisites for SSNI."

And

that is crucial, because the SSNI booklet provided that Santangelo
would be eligible to get SSNI payments only if he was able to
"continue to operate for [New York Life] under a Retired Agent's
Contract."

In other words, Santangelo provides no evidence that

New York Life promised that he would be eligible for the SSNI
payments even if he was barred from continuing to operate under an
"active Retired Agent's Contract."

Santangelo thus has not shown

that there is a genuine issue of triable fact about a breach of any
promise regarding SSNI payments on which he could reasonably have
relied.
That leaves Santangelo's unjust enrichment and quantum
meruit claims. Santangelo alleges them separately, but as a matter
of Massachusetts law, unjust enrichment and quantum meruit are the
same

"theory

of

Commonwealth,

494

recovery."
N.E.2d

See

374,

377

J.A.
(Mass.

Sullivan
1986)

Corp.

("In

a

v.
case

involving an unenforceable contract, we allowed quantum meruit
recovery,

basing

enrichment.").

our

reasoning

on

the

theory

of

unjust

Quantum meruit is a theory allowing recovery where

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the defendant has been unjustly enriched at the expense of the
plaintiff.

See Liss v. Studeny, 879 N.E.2d 676, 682 (Mass. 2008).
Here, as we have said, the SSNI booklet imposed a

requirement

that

Santangelo

elect

an

active

contract in order to receive SSNI payments.

Retired

Agent's

But as a consequence

of the termination -- which, as explained above, Santangelo cannot
show breached his agent's contract -- Santangelo could not elect
the required contract type.

"A plaintiff is not entitled to

recovery on a theory of quantum meruit where there is a valid
contract that defines the obligations of the parties."

Bos. Med.

Ctr. Corp. v. Sec'y of Exec. Office of Health & Human Servs., 974
N.E.2d 1114, 1132 (Mass. 2012).

To require New York Life to make

SSNI payments when the preconditions expressly set forth for
obtaining the SSNI payments were not met "would, therefore, run
counter to the reasonable expectations of the parties."
N.E.2d at 682.

Liss, 879

And so as to this claim, too, Santangelo has failed

to provide evidence that survives New York Life's summary judgment
motion.
V.
Given the undisputed evidence in this case, Santangelo's
state law age discrimination claims were time-barred, and no
reasonable jury could conclude that New York Life engaged in age
discrimination under federal law in terminating his agent contract.
Nor could a reasonable jury conclude that the termination breached

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Santangelo's contract with New York Life or violated any of his
common law rights.

For those reasons, we affirm the judgment of

the District Court.

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