Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1106

DAVID MEUSER,

Plaintiff, Appellant,

v.

FEDERAL EXPRESS CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Honorable Michael A. Ponsor, U.S. District Judge]

Before

Torruella and Selya, Circuit Judges,

and Domínguez, District Judge. *

Dan V. Bair, II with whom Lisa Brodeur-McGan and BordeurMcGan, P.C., were on brief for appellant.

Kathy Laughter Laizure was on brief for appellees.

May 4, 2009
On December 7, 2007, Plaintiff filed a motion agreeing to 1

dismiss Count II (intentional infliction of emotional distress) of

the Complaint, signed by both parties. See Civil Action No. 06CA-

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Domínguez, District Judge. This appeal arises from a

complaint filed by David Meuser ("Meuser/Appellant") against

Federal Express Corporation ("FedEx") on February 9, 2006, in the

Hampshire Superior Court, in the Commonwealth of Massachusetts,

alleging violation of the Massachusetts Civil Rights Act (“MCRA”),

Mass. Gen. Laws ch. 149, § 52C, intentional infliction of emotional

distress, and discharge in violation of public policy, Counts I,

II, and III, respectively. On March 17, 2006, FedEx filed a notice

of removal in the United States District Court for the District of

Massachusetts on the basis of diversity and federal question

jurisdiction.

FedEx filed a motion for summary judgment, on all counts, on

September 4, 2007, contending that the facts, even when viewed in

the light most favorable to the Plaintiff, could not lead a

reasonable jury to conclude that any action was taken against

Plaintiff via "threats, intimidation or coercion" as required by

the MCRA, and that Plaintiff was not constructively discharged.

Meuser filed his opposition to FedEx's motion for summary judgment

on October 1, 2007. On December 14, 2007, District Court Judge

Michael A. Ponsor, entered a memorandum and order granting summary

judgment in favor of FedEx, on Counts I (violation of the MCRA) and

III (wrongful termination in violation of public policy). Meuser 1
30042-MAP, Docket No. 35.

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timely filed his notice of appeal on January 14, 2008.

I. BACKGROUND

The events underlying this case commenced on October 10, 2002,

when Appellant, a FedEx courier since April 1992, noticed fumes in

his delivery truck. Thereafter, Appellant made a visit to the

hospital and was out of work for three days as a result of his

exposure to the fumes. Consequently, on October 11, 2002, Meuser

filed a worker’s compensation claim, and on October 14, 2002, he

filed a Safety First Report with FedEx. Around that same time

Meuser, because he was concerned about his exposure and the nature

of the fumes, asked his supervisors for the Material Safety Data

Sheets (“MSDS”) containing the safety information regarding the

faulty pump that was believed to have caused the fumes. On October

21, 2002, he requested that the Occupational Safety and Health

Administration (“OSHA”) perform an investigation regarding the

fumes emanating from his delivery truck. Appellant further filed

a written formal complaint. OSHA found that the hazard had already

been investigated, identified as a leaking pump, and had been

corrected; on October 28, 2002 OSHA closed the file. On January

17, 2003, Meuser wrote to OSHA formalizing a complaint as to

FedEx’s refusal to provide him the MSDS sheets. After some time,

the MSDS sheets were obtained from the vendor and provided to

Meuser on January 24, 2003, after Meuser’s return from a two week
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vacation. Although OSHA cited FedEx for not having the MSDS on

site, no imposition of any monetary penalty was made.

In February 2003, Meuser contracted a respiratory illness and

received one-week’s leave under the Family Medical Leave Act

(“FMLA”). Later in Spring 2003, Meuser’s route was changed as part

of a comprehensive overhaul of courier assignments, which had been

determined since November 2002, but postponed at the request of the

drivers. The new route resulted in a larger geographical area, but

nonetheless required from Meuser fewer stops per hour.

In April 2003, Meuser requested from his supervisor a

replacement truck because the vehicle he was driving was too

“dusty.” FedEx Senior Manager, Joseph Marotta, suspected that this

complaint was merely a tactic to have someone deliver to Meuser,

with the requested replacement truck, a package that he had left

behind at the station that morning, enabling Meuser to avoid

returning to pick up the package and/or being disciplined for

leaving the package behind. Consequently, Appellant was provided

online counseling, which constitutes the first step in FedEx’s

progressive discipline process, for failing to take the package on

his route.

On or about April 15, 2003, Meuser used his truck dispatch

system to send a female courier a communication (“DADS message”) in

which he accused her of falsifying documents (specifically DEX 17

scans), which is considered a serious offense by FedEx. On April
The record is undisputed that by coding a package DEX3 and 2

returning it to the station undelivered, a courier represents that

he does not know where the address is located and the courier

avoids being charged with a service failure for that package. Any

claim by Appellant regarding this matter is inconsistent with the

record as Appellant, in his deposition, admitted that although he

understood that DEX3 was not to be used when a courier knew the

location of the address, he disagreed with the policy. Meuser

cannot contradict a prior deposition statement via a later sworn

testimony. See Torrech-Hernandez v. General Electric, 519 F.3d 41,

47 (1st Cir. 2008).

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16, 2003, due to Meuser’s use of the dispatch system to make

serious accusations against a courier, he was suspended with pay

pending an investigation of the incident by the Operations Manager,

James Langone. On April 17, 2003, after completion of Langone’s

investigation, Meuser received documented counseling for his

behavior and was sent a copy of FedEx’s Acceptable Conduct policy,

Section 2-5 in The People Manual.

On September 3, 2003, a FedEx customer on Appellant’s route,

Mrs. Emily Robertson, complained to FedEx about a late package

delivery. Meuser admitted that although the package was mislabeled

and misaddressed, he knew the correct delivery address.

Nevertheless, since he noticed the mistake at the end of the day it

was too late to deliver the package and therefore he classified the

package as a “DEX3”, a code for “Delivery Exception 3.” Said

codification is only appropriate when the courier has no knowledge

of where to deliver the package. Consequently, there was a delay 2

in the package delivery. After Mrs. Robertson’s complaint of the

non-delivery of the package, Meuser was instructed by his
According to Appellant’s Brief, Mrs. Robertson was asked by 3

Langone to put her complaints, regarding the incident with Meuser,

in writing.

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supervisor to deliver the package early the next morning and to

smooth over the matter with the customer. (FedEx considers

recipients of packages to be customers). The next morning Meuser

alleges that he delivered the package, apologized and conversed

with Mrs. Robertson in the spirit of trying to establish a rapport

with her. Meuser further alleges that after he left the customer,

he thought he had done a great job and understood that Mrs.

Robertson was content. Nevertheless, after the delivery, Mrs.

Robertson complained to FedEx again and stated that Meuser’s

comments were unprofessional, that his manner was threatening and

that he accused her of possibly causing him to be subsequently

fired because of her complaint. Based on this incident, FedEx 3

supervisors shifted Meuser to a different route and placed him on

paid investigative suspension. As a result of the investigation,

FedEx issued a warning letter to Meuser. Appellant proffers that

couriers are almost never removed from their routes unless they

have been terminated and that he was removed from his route after

seven years with just one customer complaint.

Subsequent to his assignment to the new route, Meuser

contacted a number of FedEx customers whom he knew personally and

asked them to write to FedEx complaining about FedEx’s decision to

change his route. Meuser received a second warning letter on
The District Court noted that the record was unclear as to 4

whether Meuser intended to withdraw his tuition letter or his

letter requesting his personnel file since he had submitted both

letters on November 17, 2003. Nevertheless, the district court

being properly cautious assumed that both letters had been

withdrawn.

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September 25, 2003, for involving FedEx customers and for divulging

internal FedEx confidential information. Meuser was further

informed that his three-day paid investigative suspension was

converted into an unpaid suspension. Nevertheless, Meuser

continued on his new route with no other changes in pay or

benefits.

On November 17, 2003, Meuser submitted two letters to his

supervisor, one requesting his personnel file under Mass. Gen. Laws

ch. 149, § 52C, and the other asking for a written statement as to

why as of that day his personal tuition reimbursement had not been

reimbursed. In a meeting held that same day between Meuser, James

Langone and Ms. Lisa Patterson, the recently appointed Senior

Manager who had minimal knowledge of Meuser’s history and no

knowledge of the OSHA complaints, Ms. Patterson told Meuser that

the letter regarding his tuition reimbursement was disrespectful in

tone. During the meeting Ms. Patterson leaned across the table,

slammed her hands on the table and “screamed” that “this would not

be tolerated.” Appellant further alleges that since he was

terrified at Patterson’s reaction, he withdrew his letter.4

Subsequently, Meuser resigned from his position on December 5,
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2003. Appellant claims that he thought he was on the verge of

being terminated anyway and had been told by Langone that he would

have a positive rehire status. Nevertheless, one day after

submitting his resignation, Meuser learned that he would be

ineligible for positive rehire status because of his two warning

letters and attempted to rescind his resignation. FedEx declined

to accept his rescission. Consequently, the employment

relationship ended.

This suit, the district court’s summary judgment order and

Meuser’s timely appeal followed.

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of a summary judgment de

novo. See Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008).

Nevertheless, “‘[w]e may affirm the district court's decision on

any grounds supported by the record.’” Id. (quoting

Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58, 62 (1st

Cir. 2004). In reviewing a grant of summary judgment, this court

“constru[es] the record in the light most favorable to the

nonmovant and resolv[es] all reasonable inferences in the party’s

favor.” Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32,

38 (1st Cir. 2002).

Summary judgment is appropriate only if, viewing all factual

disputes in the light most favorable to the nonmoving party, there
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is no genuine issue of material fact that would prevent judgment

for the moving party as a matter of law. Fed. R. Civ. P. 56(c);

Montfort-Rodriguez v. Rey-Hernandez, 504 F.3d 221, 224 (1st Cir.

2007). A genuine issue exists where “a reasonable jury could

resolve the point in favor of the nonmoving party.” Suarez v.

Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). Once the

moving party avers an absence of evidence to support the non-moving

party’s case, the non-moving party must offer “definite, competent

evidence to rebut the motion.” Mesnick v. General Electric Co.,

950 F.2d 816, 822 (1st Cir. 1991). However, “‘[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those

of a judge.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986)); see also Lytle v. Household Mfg., Inc., 494 U.S. 545,

554-55 (1990); Continental Ore Co. v. Union Carbide & Carbon Corp.,

370 U.S. 690, 696 n.6 (1962).

“Even in cases where elusive concepts such as motive or intent

are at issue, summary judgment may be appropriate if the nonmoving

party rests merely upon conclusory allegations, improbable

inferences, and unsupported speculation.” Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)(citing Rossy v.

Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir. 1989); Oliver v.

Digital Equipment Corp., 846 F.2d 103, 109-10 (1st Cir. 1988)); see
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also Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008) (“Although

we give the nonmoving party the benefit of all reasonable

inferences, a party cannot rest on ‘conclusory allegations,

improbable inferences, [or] unsupported speculation’ to defeat a

motion for summary judgment.”)(quoting McCarthy v. Northwest

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). Furthermore,

the non-moving party’s burden cannot be satisfied with a

declaration that “without proper explanation” contradicts his/her

prior deposition testimony. See Torrech-Hernandez, 519 F.3d at 47.

B. Count I: Violation of Massachusetts Civil Rights Act

We agree with the district court’s dismissal of Appellant’s

claim under the MCRA, since there is no evidence in the record to

show that FedEx violated the MCRA by interfering with Appellant’s

rights secured by the Constitution or laws of either the United

States or the Commonwealth, by threats, intimidation or coercion.

Appellant alleges that summary judgment was improperly entered as

to Count I of the Complaint, since the evidence presented

demonstrated issues of material fact. We disagree and explain.

The Massachusetts Civil Rights Act, requires a Plaintiff to

demonstrate that “(1) his exercise or enjoyment of rights secured

by the Constitution or laws of either the United States or the

Commonwealth, (2) has been interfered with, or attempted to be

interfered with, and (3) that the interference or attempted

interference was by ‘threats, intimidation or coercion.’” Bally v.
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Northeastern Univ., 532 N.E.2d 49, 51-52 (Mass. 1989)(quoting Mass.

Gen. Laws ch. 12, § 11H); see also Andresen v. Diorio, 349 F.3d 8,

14 (1st Cir. 2003); Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir.

2002)(“The MCRA provides a cause of action for any person whose

rights under the Constitution, federal law, or state law have been

interfered with by threats, intimidation, or coercion of

another.”); Ayasli v. Armstrong, 780 N.E.2d 926, 934 (Mass. App.

Ct. 2002); Howcroft v. City of Peabody, 747 N.E.2d 729, 745 (Mass.

App. Ct. 2001)(“The MCRA creates no substantive civil rights;

rather, it provides a mechanism for obtaining relief from the

interference, or attempted interference, with rights conferred by

Federal or Massachusetts law.”) The Supreme Judicial Court has

held that the interference or attempted interference must be by

threat, intimidation or coercion, defined as follows:

“[t]hreat” in this context involves the

intentional exertion of pressure to make

another fearful or apprehensive of injury or

harm. See Redgrave v. Boston Symphony

Orchestra, Inc., 502 N.E.2d 1375, 1381 (Mass.

1987) (O'Connor, J., dissenting); Delaney v.

Chief of Police of Wareham, 539 N.E.2d 65, 71-

72 (Mass. App. Ct. 1989) (“acts or language by

which another is placed in fear of injury or

damage”). Cf. Commonwealth v. Ditsch, 475

N.E.2d 1235 (Mass. App. Ct. 1985) (reasonable

apprehension on the part of the recipient of a

criminal threat). “Intimidation” involves

putting in fear for the purpose of compelling

or deterring conduct. See Redgrave v. Boston

Symphony Orchestra, Inc., supra; Delaney v.

Chief of Police of Wareham, supra (“creation

of fear to compel conduct”). In Deas v.

Dempsey, 530 N.E.2d 1239, 1241 (Mass. 1988),

we quoted a definition of coercion from
Meuser contends that he requested the MSDS sheets initially 5

in late October 2002, followed by a formal request at OSHA on

January 14, 2003. Nevertheless, FedEx’s tardiness in providing the

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Webster's New International Dictionary at 519

(2d ed. 1959): “the application to another of

such force, either physical or moral, as to

constrain him to do against his will something

he would not otherwise have done.” See

Delaney v. Chief of Police of Wareham, supra

(“the active domination of another's will”).

Planned Parenthood League v. Blake, 631 N.E.2d 985, 990 (Mass.

1994), cert. denied, 513 U.S. 868 (1994)(internal citations

modified); see also Davignon v. Hodgson, 524 F.3d 91, 112 (1st Cir.

2008); Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001); Haufler v.

Zotos, 845 N.E.2d 322, 335 (Mass. 2006).

Appellant argues that the district court mischaracterized the

incidents as “a collection of minor, possibly harassing incidents

[which] cannot be sufficient to satisfy the definition of

threatening or coercive conduct under MCRA, especially where there

is little evidence of any intent by [Appellant’s] superiors to

intimidate him.” Meuser v. Federal Express Corporation, 524 F.

Supp. 2d 142, 148 (D. Mass. 2007). The facts, considered in the

light most favorable to Appellant based on the record before us,

are the following:

Appellant alleges that his employment’s environment began to

deteriorate after he filed the two OSHA complaints relating to the

fumes he detected in his truck (October 21, 2002) and requested the

MSDS sheets (January 17, 2003). For example, in mid-January 2003, 5
sheets cannot be considered as a threat, intimidation or coercion

as required by the MCRA.

Although Marotta was allegedly abrupt as to Meuser’s MSDS 6

call, it should be noted that Meuser was calling Marotta, a senior

manager since November 2002, during working hours as to a personal

interest, disregarding that “[w]orking time is for work.” Republic

Aviation Corp., v. N.L.R.B., 324 U.S. 793, 803 n.10 (1945).

Furthermore, Marotta’s abruptness towards Meuser, his comment

regarding Meuser’s alleged fabrication of the fumes incident nor

the comment that “he did not like to lose,” cannot be considered as

Marotta trying to interfere or attempt to interfere with any of

Meuser’s rights by threat, intimidation or coercion.

The record shows that a “check ride” constitutes an accepted 7

method to supervise and evaluate the performance of a courier in

compliance with his route duties. The implementation of such a

common procedure in a package delivery business cannot be

considered as a threat, intimidation or coercion. Employers have

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Meuser called Marotta, during his morning route, to ask him about

the MSDS sheets. Marotta was allegedly abrupt with Meuser and told

him that he did not have enough work if he had time to call about

the MSDS sheets during his working route hours. Marotta further

insinuated that Meuser had created the whole toxic fumes incident

of October 2002, in order to lay the foundation for a later suit

against FedEx. Furthermore, Meuser contends that the January 2003

OSHA inspection, which resulted in a citation by OSHA for not

having the required MSDS sheets on site, fueled Marotta’s

retaliatory behavior as evidenced by Marotta’s comment that “he

[Marotta] did not like to lose.”6

On January 24, 2003, the same day Meuser was provided with the

MSDS sheets, Meuser contends that he was subjected to an

unscheduled “check ride” by Langone. In April 2003, although all 7
a right to reasonably supervise and evaluate their employees.

Furthermore, Langone provided Meuser a favorable review on his

“check ride,” stating that Meuser had a “solid improvement since

[his] last checkride.” App. 165.

Even if, from all the changed routes, Meuser’s route was the 8

only one changed to cover a larger area, said business decision,

cannot be considered as a threat, intimidation or coercion, towards

Meuser. Furthermore, whether or not it was a wise business decision

“[c]ourts may not sit as super personnel departments, assessing the

merits — or even the rationality — of employers’ . . . business

decisions.” Mesnick, 950 F.2d at 825. It is uncontested that

although the route and schedule changes were implemented in April

2003, the business decision to change them had been announced in

November 2002, but delayed at the request of the couriers until

February 2003.

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of the couriers’ work days were shortened to eight hours, Meuser’s

route was the only one that was altered to cover a larger area.

Meuser alleges that the enlargement of his route caused service

failures, delayed deliveries and rolled delivery (freight not

delivered) as evidenced by Mrs. Robertson’s delayed delivery.

Meuser was not given any help notwithstanding his reiterated

requests for assistance and despite the fact that it is a known

FedEx policy to assist couriers when possible. On April 16, 2003, 8

due to Meuser’s use of the dispatch system to make serious

accusations against Deb Dahlgren, a female courier, Meuser was

suspended with pay pending an investigation of the incident by his

Manager, James Langone. On April 17, 2003 after completion of

Langone’s investigation, Meuser received a documented counseling

for his behavior towards Deb Dahlgren and was sent a copy of

FedEx’s Acceptable Conduct policy, Section 2-5 in The People
Meuser’s use of the dispatch system to accuse another FedEx 9

employee of falsifying documents was a direct violation of company

policy. Meuser further admitted during his deposition that there

was a growing tension between Deb Dahlgren and him regarding their

adjacent routes and a lack of willingness on her part to assist

Meuser in his area when she had a light workload or was available

to do so. Meuser further admitted that he had never addressed the

tension between them and that it was a matter he should have

brought to the attention of management but failed to do so.

Moreover, Meuser admitted that he lost his “cool” and had an

outstanding “tension” with Deb Dahlgren. Pursuant to the above

factual scenario, the Court cannot conclude that there was any MCRA

violation.

The record shows that Appellant recognized Marotta was 10

disciplined for his profanity during their meeting. Furthermore,

neither Marotta’s profanity towards Meuser nor his opinion that

Meuser had fabricated his illness, rises to level of threat,

intimidation or coercion required by the Act. The fact that Meuser

might have found Marotta’s opinion intimidating in some way, is

irrelevant. Cignetti v. Healy, 89 F. Supp. 2d 106, 125 (D. Mass.

2000). “The nature of a ‘threat’ should be examined from an

objective standpoint.” Id. Hence, “the state of mind of the

person threatened is not controlling.” Commonwealth v. DeVincent,

266 N.E.2d 314, 316 (Mass. 1971); see also Planned Parenthood

League, 631 N.E.2d at 990 (citing DeVincent, 266 N.E.2d at 316).

On August 4, 2003, Appellant had submitted a request to be 11

reimbursed for tuition for an introductory economics class. The

record shows that there was a misunderstanding as to which courses

were eligible for reimbursement. Consequently, on November 28,

2003, the tuition reimbursement representative sent Appellant a

letter explaining the proper requirements of eligibility for

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Manual. On April 18, 2003, during a meeting with Marotta and 9

Langone, Marotta told Meuser, regarding his request for a less

dusty vehicle, that “everything [he] was doing was bullshit,’” App.

499. Furthermore, Marotta made a comment during the meeting that

Meuser had somehow made up his February illness. On August 4, 10

2003 Meuser filed a request for tuition reimbursement that was not

approved until December 5, 2003. On September 11, 2003, Meuser 11
reimbursement. After Appellant corrected his application, he

resubmitted his request and the same was approved on December 5,

2003.

Meuser avers that since FedEx counted one of his FMLA leave 12

days (February 14, 2003) as a regular sick day, in the attendance

memorandum he received, FedEx interfered or attempted to interfere

with his FMLA rights by threats, intimidation or coercion. Since

FedEx accepted that the inclusion of that specific day in the

memorandum was an error and Appellant admits that he was granted

his FMLA leave requests, FedEx’s alleged conduct does not rise to

the level of threat, intimidation or coercion required under the

MCRA.

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received a routine non-disciplining attendance memorandum from Jim

Langone, informing Meuser that over the past twelve (12) months his

attendance had been marginal and that his absence the day before,

had put him below the company’s acceptable rate of 96.9%. It was

further recommended that necessary steps should be taken in order

to avoid this type of situation and that any further violations

would result in the issuance of a written Performance Reminder.12

In September 2003 Meuser’s route was changed due to the incident

with Mrs. Robertson. On September 25, 2003, Meuser was issued a

second warning letter for contacting a number of FedEx customers,

whom he knew personally, and divulging to them confidential

information by asking them to write to FedEx complaining about

FedEx’s determination to assign Meuser to another route. Finally,

on November 17, 2003, Meuser met with James Langone and the new

Senior Manager, Lisa Patterson, who had minimal knowledge of

Meuser’s history and no knowledge of his OSHA complaints.

Patterson told Meuser that the letter, allegedly requesting a
Although in Meuser’s deposition he stated that his 13

resignation was contingent upon being in a positive rehire status,

he admitted that he did not check the policy book in order to make

sure that he was in fact eligible for positive rehire status.

Meuser further stated that after he submitted his resignation he

decided to check if he was eligible for positive rehire status,

something Meuser admits he should previously verified. Meuser was

advised by Jack Mackin that he was not eligible because he had two

active warning letters. Furthermore, nowhere in the record does

Meuser state or imply that Langone had purposely deceived him. An

employee’s ineligibility for rehire status after receiving two

active warning letters is uncontested on the record.

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tuition reimbursement, was disrespectful in tone. During the same

meeting, Patterson slammed her hands on the table and “screamed”

that “this would not be tolerated.” Appellant alleges that since

he was terrified at Patterson’s reaction, he withdrew the letter.

Meuser resigned from his position on November 24, 2003, effective

December 5, 2003, after it had been represented by Langone that he

was eligible for positive rehire status. However, after learning

that having two warning letters in his record made him ineligible

for positive rehire status, Meuser attempted to rescind his

resignation. Nevertheless, FedEx declined to accept the 13

rescission.

After reviewing the aforementioned incidents and the evidence

of record, in the light most favorable to the Appellant, we find

that Meuser failed to establish that FedEx’s actions, considered

individually or together, constituted “threats, intimidation or

coercion” within the meaning of the MCRA. Furthermore, we find

that the incidents attested to by Appellant do not rise to the
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level of a threat, defined as “intentional exertion[s] of pressure

[that would] make another fearful or apprehensive of injury or

harm,” nor can they be considered to rise to the level of

intimidation defined as “putting in fear for the purpose of

compelling or deterring conduct,” or coercion defined as “such

force, either physical or moral, as to constrain [him] to do

against his will something he would not otherwise have done.”

Planned Parenthood League, 631 N.E.2d at 990; see also Haufler, 845

N.E.2d at 335. Furthermore, even if we disagree with FedEx’s

personnel or business decisions, a matter on which we take no view,

“[c]ourts may not sit as super personnel departments, assessing the

merits— or even the rationality— of employers’ . . . business

decisions.” Mesnick, 950 F.2d at 825.

Moreover, we find that the district court correctly determined

that “the record is entirely devoid of anything resembling the sort

of physical, moral, or economic pressure that courts have found

sufficient to support a claim under this statute . . . [especially

when] . . . the exception for claims based on non-physical coercion

remains a narrow one.” Meuser, 524 F. Supp. 2d at 147 (citing

Horne, 509 F. Supp. 2d at 115); see also Kennie v. Natural Res.

Dep’t of Dennis, 866 N.E.2d 983 (Mass. App. Ct. 2007); Buster v.

George W. Moore, Inc., 783 N.E.2d 399, 411 (Mass. 2003).

Nevertheless, we shall proceed to examine the only incident

that the district court found worthy of extended scrutiny. As
Although Appellant alleges in his brief that Patterson’s 14

behavior during the meeting of November 17, 2003 was prompted by

his written request for a copy of his personnel file, in his

deposition he clearly accepts that the reason for the meeting and

her alleged reaction was because of his written tuition

reimbursement request. He further states that the letter he wrote

to Langone regarding this issue was the one Mrs. Patterson had on

her desk when she slammed her hands and stated that it was

“disrespectful.” App. 168-69. Meuser also testified that Ms.

Patterson explained to him that they had already discussed the

issue and that Mr. Langone had already explained why he was not

eligible for the reimbursement. Once again, Appellant cannot

create a question of fact with a later sworn testimony

contradicting his prior deposition testimony without proper

explanation, which clearly states that the incident was in fact

prompted by his request for the tuition reimbursement. See

Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir.

1994); see also Torrech-Hernandez, 519 F.3d at 47.

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aforementioned, Appellant claims that during his meeting with

Patterson he was “threatened, intimidated, and coerced” by her

behavior and comments towards him when she slammed her hands on the

table and shouted at Meuser. Furthermore, Patterson suggested that

his letter had been written by a lawyer, and that if that was the

case, he should reflect on it, because his appeal would not be

considered. She further explained that if he had acquired an

attorney, any further complaints he might have had with FedEx would

then have to be dealt between his attorney and FedEx’s legal

department. Consequently, Appellant alleges that since he was

terrified at Patterson’s reaction, he “withdrew his letter

requesting his Personnel File.” Appellant’s Br. 18.14

Applying the objective standard of a reasonable person “to

determine whether [Patterson’s] conduct constituted threats,
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intimidation, or coercion under the act,” Haufler, 845 N.E.2d at

335, we agree with the district court’s finding that this type of

behavior, “though it approaches the line,” fails to constitute the

kind of threatening or intimidating behavior the MCRA requires.

Meuser, 524 F. Supp. 2d at 148. As aforementioned, the fact that

Meuser might have found Patterson’s conduct intimidating or

threatening in some way, is irrelevant. Cignetti, 89 F. Supp. 2d

at 125. “[T]he state of mind of the person threatened is not

controlling,” it is whether a reasonable person in Appellant’s

circumstance would feel threatened, intimidated or coerced by Ms.

Patterson’s conduct. Commonwealth v. DeVincent, 266 N.E.2d 314,

316 (Mass. 1971); see also Planned Parenthood League, 631 N.E.2d at

990 (citing DeVincent, 266 N.E.2d at 316).

The Legislature “explicitly limited the

[act's] remedy to situations where the

derogation of secured rights occurs by

threats, intimidation or coercion.” The

Legislature intended that even a direct

deprivation of a plaintiff's secured rights

would not be actionable under the act unless

it were accomplished by means of one of these

three constraining elements.

Buster, 783 N.E.2d at 409 (internal citations omitted).

Consequently, we find using an objective standard, that Patterson’s

conduct of slamming her hands on the desk and allegedly shouting at

Meuser cannot be considered in any way within the context of the

act as either a threat, intimidation or coercion. See Haufler, 845

N.E.2d at 335; see also Cignetti, 89 F. Supp. 2d at 125.
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Moreover, we emphasize that Patterson had replaced Mr. Marotta

as the senior manager of Hatfield, only two weeks prior to the

incident. It is uncontested that Patterson had minimal knowledge

of Meuser’s employment history at FedEx and no knowledge of the

fumes-related OSHA incident. Consequently, there is no evidence

that she was tainted by Appellant’s OSHA complaints, which is the

motivating factor alleged by Meuser under the MCRA. Hence, the

short-lived incident of slamming her hands on the desk, cannot be

linked with Meuser’s exercise of other statutory rights. See

Carmack v. Amtrak, 486 F. Supp. 2d 58, 92 (D. Mass. 2007)(“Nothing

in the record indicates that Amtrak's true motivation was to punish

Mr. Carmack for communicating with his union representative or for

exercising his right to free speech.”); Fletcher v. Szostkiewicz,

190 F. Supp. 2d 217, 232 (D. Mass. 2002) (criticizing a “pattern of

harassment” as a possible basis for a finding of threatening

behavior).

Therefore, we conclude that the district court did not err in

dismissing Appellant’s claim under MCRA.

C. Count III: Wrongful Termination in Violation of Public Policy

We agree with the district court’s dismissal of Appellant’s

common law claim for discharge in violation of public policy.

Appellant alleges that the district court improperly entered

summary judgment on Count III since the record shows that he was

subjected to a sustained campaign of harassment and retaliation
- 22 -

from October 2002 until his resignation on November 24, 2003.

Appellant further alleges that although he requested to return to

work at FedEx, his amenability was predicated upon a future change

in management. Moreover, Meuser avers that his resignation was

submitted with the assumption that he was eligible for re-hire.

“Massachusetts courts recognize an exception to the general

at-will employment rule ‘when employment is terminated contrary to

a well-defined public policy.’” Day v. Staples, Inc., 555 F.3d 42,

59 (1st Cir. 2009)(quoting Wright v. Shriners Hosp. for Crippled

Children, 589 N.E.2d 1241, 1244 (Mass. 1992)); see also GTE

Products Corp. v. Stewart, 653 N.E.2d 161, 168-69 (Mass. 1995).

“For example: Redress 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).” Hinchey v. NYNEX Corp., 144 F.3d 134, 145

(1st Cir. 1998)(citing Smith-Pfeffer v. Superintendent of the

Walter E. Fernald State Sch., 533 N.E.2d 1368, 1371 (Mass. 1989)).

Nevertheless, “[t]his public policy exception is construed

narrowly.” Day, 555 F.3d at 59 (citing King v. Driscoll, 638

N.E.2d 488, 492 (Mass. 1994)). “[T]o do otherwise would ‘convert

the general rule . . . into a rule that requires just cause to

terminate an at-will employee.’” King, 638 N.E.2d at 492 (quoting

Smith-Pfeffer, 533 N.E.2d at 1371).
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As aforementioned, Appellant contends that he was

constructively discharged due to a sustained campaign of harassment

and retaliation from October 2002 until his resignation on November

24, 2003. Nevertheless, it has been well established in this

Circuit that

[t]o prove constructive discharge, a plaintiff

must usually show that [his] working

conditions were so difficult or unpleasant

that a reasonable person in [his] shoes would

have felt compelled to resign. It is not

enough that the plaintiff suffered the

ordinary slings and arrows that workers

routinely encounter in a hard, cold world.

In order to establish constructive discharge,

[Plaintiff] must show that conditions were so

intolerable that they rendered a seemingly

voluntary resignation a termination. In such

cases, [t]he question is not whether working

conditions at the facility were difficult or

unpleasant, but rather, an employee must show

that, at the time of his resignation, his

employer did not allow him the opportunity to

make a free choice regarding his employment

relationship. Thus, in order for a

resignation to constitute a constructive

discharge, it effectively must be void of

choice or free will.

Torrech-Hernandez, 519 F.3d at 50 (internal citations and

quotations omitted) (quoting De La Vega v. San Juan Star, Inc., 377

F. 3d 111, 117 (1st Cir. 2004); see also GTE Products Corp., 653

N.E.2d at 168-69 (“‘[T]he trier of fact must be satisfied that the

new working conditions would have been so difficult or unpleasant

that a reasonable person in the employee's shoes would have felt

compelled to resign.’ The test is met if, based on an objective
- 24 -

assessment of the conditions under which the employee has asserted

he was expected to work, it could be found they were so difficult

as to be intolerable.” (quoting Alicea Rosado v. Garcia Santiago,

562 F.2d 114, 119 (1st Cir.1977))); Vega v. Kodak Caribbean, Ltd.,

3 F.3d 476, 481 (1st Cir. 1993); Aviles-Martinez v. Monroig, 963

F.2d 2, 6 (1st Cir. 1992); Pena v. Brattleboro Retreat, 702 F.2d

322, 325 (2d Cir. 1983)).

We briefly explain our analysis as to why Plaintiff’s

allegations regarding his FedEx working conditions do not rise to

the level of intolerableness which would compel a reasonable person

in his position to resign. Plaintiff was in fact able to file his

two OSHA related complaints and he did not have any further related

OSHA complaints. Meuser admits that he applied and was granted

leave pursuant to the FMLA. Therefore, the fact that one day of

his FMLA leave was erroneously counted in a non-disciplinary

letter, recognized by the employer as an error, was not “‘so

difficult or unpleasant that a reasonable person in [his] shoes

would have felt compelled to resign.’” GTE Products Corp., 653

N.E.2d at 168-69 (quoting Alicea Rosado v. Garcia Santiago, 562

F.2d 114, 119 (1st Cir. 1977)). The “dusty truck” incident

resulted in a documented counseling without any suspension; it was

not unreasonable for the employer to opine that he used the “dusty

truck” to camouflage a failure in his services (leaving a package

behind). The “DADS” usage by Meuser to send an offensive message
- 25 -

to a female courier co-worker, regarding an issue that occurred a

year earlier, resulted in a documented counseling for using an

employment related communication instrument that could not be used

for that purpose. Furthermore, Meuser admitted that he had a

grudge against the female worker and that he “lost his cool.”

Hence, Meuser could not be affected to the point of “intolerable”

work environment. Moreover, the tuition reimbursement was in fact

a fringe benefit which was alerted to him by management, Mr.

Langone, during a routine “check ride.” Meuser had not stated in

the request that the reimbursement was for a graduate course. He

modified the request and the reimbursement was granted after the

company verified that “economics” was related to his employment.

Even if there was fault in initially denying the reimbursement, it

is not a matter compelling resignation. The change of Meuser’s

route, and of all the other couriers’, was a business decision

determined in November 2002, prior to other work-related incidents,

and implemented after he returned from FMLA leave, during April

2003. Meuser alleged that the order was a reprisal for Meuser

requesting the MSDS sheets in January 17, 2003, while he was

delivering packages. Nevertheless, it is uncontested on the record

that the decision to change the routes as to all the couriers was

made on November 2002 and postponed for a later date at the request

of the couriers. The alleged “check ride” reprisal resulted in no

disciplinary action whatsoever, it constituted a valid traditional
- 26 -

manner to check courier performance, and resulted in a positive

evaluation for Meuser. Hence, Meuser cannot seriously allege that

the “check ride” was so “unpleasant” to the point of compelling him

to resign. Finally, the most significant disciplinary action,

wherein Meuser was suspended, was caused by Meuser’s own conduct.

Appellant recruited and involved FedEx customers relating to the

disciplinary action taken by FedEx against Meuser due to the

incident with Mrs. Robertson, a FedEx client. The customers were

recruited by Meuser in an effort to persuade FedEx to rescind the

disciplinary action of changing his route. The communication of

Meuser with FedEx customers was thus not authorized and further

revealed inside information to clients.

After a thorough review of the record, we are in agreement

with the district court’s finding that “[n]othing in the record of

this case would justify a jury in reasonably concluding that

Plaintiff’s working conditions reached anything approaching the

level of [intolerableness] required to provide a basis for a claim

of wrongful discharge.” Meuser, 524 F. Supp. 2d at 149.

Furthermore, we find that the fact that Meuser attempted to rescind

his resignation, after he learned that he was not eligible for

positive rehire status as he originally thought, is clear evidence

that Meuser’s working conditions were not “so difficult or

unpleasant that a reasonable person in [his] shoes would have felt

compelled to resign,’” GTE Products Corp., 653 N.E.2d at 169
- 27 -

(quoting Alicea Rosado, 562 F.2d at 119), and that he had “the

opportunity to make a free choice regarding his employment

relationship.” Torrech-Hernandez, 519 F.3d at 50. In other words,

his resignation was not “effectively . . . void of choice or free

will.” Id.

III. CONCLUSION

For the reasons stated herein we affirm the district court’s

decision since as the district court eloquently stated, “it would

be false charity to permit this case to go forward where the record

is simply inadequate as a matter of law to support the claims.”

Meuser, 524 F. Supp. 2d at 149.

Affirmed.