United States Court of Appeals 

For the First Circuit 

No. 15-1857 

SHELLY A. RANDO, 

Plaintiff, Appellant, 

v. 

MICHELLE LEONARD, 

Defendant, Appellee, 

CVS PHARMACY, INC., 

Defendant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Leo T. Sorokin, U.S. District Judge] 

Before 

Torruella, Thompson, and Kayatta, 

 Circuit Judges. 

Robert D. Loventhal, on brief for appellant. 

Laura M. Raisty and Locke Lord LLP, on brief for appellee. 

June 17, 2016 

 
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TORRUELLA, Circuit Judge. From 2010 to 2012, more than 

100 bottles of the pain medication butalbital went missing from a 

CVS Pharmacy in Concord, Massachusetts. After a CVS surveillance 

video showed plaintiff-appellant Shelly Rando, a pharmacy 

technician, pocketing a bottle of butalbital, Rando was suspected 

of committing the thefts. Defendant-appellee Michelle Leonard, a 

loss prevention manager at CVS, conducted an interview with Rando 

in which Rando confessed to stealing all of the missing bottles, 

and Rando was subsequently terminated. In this suit, Rando denies 

that she stole the bottles and asserts that Leonard is liable for 

the tort of intentional interference with contractual relations 

for forcing her to confess. The United States District Court for 

the District of Massachusetts entered summary judgment in favor of 

Leonard. We affirm. 

I. 

A. Factual History

Since 2002, Leonard has served as a Regional Loss 

Prevention Manager at CVS Pharmacy, Inc. ("CVS").1 As a Loss 

Prevention Manager, Leonard investigates "shrinkage," the loss of 

inventory due to factors such as theft and vendor fraud. In 

February of 2011, Leonard learned of significant "growth" in 

 

1 CVS Pharmacy was incorrectly named as CVS Caremark in the 

complaint. 
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butalbital at the CVS in Concord.2 Growth occurs where a pharmacy 

"order[s] a drug in quantities that significantly exceed those 

that are being dispensed to patients." At that time, the CVS 

should have had 73 bottles, each containing 100 tablets of 

butalbital, in inventory. A review of the inventory yielded only 

205 tablets of butalbital: 7095 tablets, or slightly fewer than 

71 bottles, were missing. The losses soon stopped, however, and 

Leonard concluded that an employee who had recently left the 

company must have been responsible for their disappearance. In 

April of 2012, Leonard learned that the same CVS in Concord was 

again experiencing growth in butalbital, with 67 bottles, or 6700 

tablets, missing. All in all, a total of 138 bottles of butalbital 

had disappeared since 2010. Around this time, Leonard also 

learned that the CVS had growth in hydrocodone. 

Rando had served as a pharmacy technician at various CVS 

stores since 1994 and was then employed at the CVS in Concord. On 

April 21, 2012, an in-store surveillance camera captured Rando 

taking a bottle of butalbital off the shelf and placing it in her 

pocket. Rando took the bottle home that day. After watching the 

video, either store manager Steve Normandy or pharmacy manager 

 

2 The prescription drug at issue in this litigation is in fact a 

combination of butalbital, acetaminophen, and caffeine. We refer 

to the drug as "butalbital" throughout this opinion. 
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Colleen Robillard told Leonard about the tape and informed her 

that a bottle of butalbital was missing. Leonard watched the tape 

as well.3

Two days later, on April 23, Leonard interviewed Rando 

with another loss prevention manager, Alfie Binns. Early in the 

interview, Rando acknowledged having taken the single bottle of 

butalbital on April 21. Leonard then broached the issue of whether 

Rando had also stolen the hydrocodone and the other 138 bottles of 

butalbital. Rando felt coerced and pressured during the meeting 

and recalled that Leonard barraged her with questions. Leonard 

repeatedly placed a confession in front of Rando for her to sign,

asked whether Rando knew that she was going to be terminated, 

yelled at Rando, and threatened to call the police.4 Rando also 

felt nervous as she did not know who Binns was or why he was there. 

Desperate to leave and exhausted by Leonard's constant questions, 

Rando finally signed the confession and a promissory note stating 

that she had stolen the 138 bottles of butalbital (but not any 

 

3 Rando denies that Leonard recognized her in the tape on the 

basis that, in her deposition, Leonard stated that she did not 

recall whether she could see Rando's face or what Rando did with 

the bottle in the video. 

4 It is difficult to discern, based on Rando's testimony, whether 

Leonard threatened to call the police before or after Rando 

confessed to stealing the remaining bottles of butalbital. For 

purposes of summary judgment, we will assume that Leonard made 

this threat before Rando's confession. 
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hydrocodone) and owed CVS $7,482.99. During her deposition, Rando 

stated that she "would have admitted to stealing the crown jewels 

to get out of that room." 

Once Rando signed the confession, Leonard called the 

police and they arrived soon after. Rando agreed to let them 

search her home. During the search, the police found the bottle 

of butalbital that Rando had stolen two days before, along with 

two empty bottles from a "long, long time ago." Rando has not had 

a prescription for butalbital for more than ten years. 

In early May, Normandy called Rando to terminate her 

employment. Normandy did not explain why Rando was being 

terminated, nor did Rando ask for an explanation. Rando was 

charged with one count of larceny over $250 in the Concord District 

Court. After CVS failed to give any further evidence to the 

assistant district attorney ("ADA") in charge of the case, Rando 

was accepted into a pretrial diversion program. Rando took drug 

tests over a six-month period as part of the program, and the case 

was dismissed. The ADA later informed Rando's counsel that 

another individual had confessed to stealing the hydrocodone.

B. Procedural History 

In May of 2013, Rando filed suit against Leonard and CVS 

in the United States District Court for the District of 

Massachusetts on the basis of diversity jurisdiction. Her amended 
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complaint alleged counts of malicious prosecution, intentional 

infliction of emotional distress, negligent infliction of 

emotional distress, intentional interference with contractual 

relations, and abuse of process. 

The defendants moved to dismiss Rando's claims under 

Federal Rules of Procedure 12(b)(1) and 12(b)(6). The district 

court dismissed all of Rando's claims except her count for 

intentional interference with contractual relations, which was 

only alleged against Leonard.5 After discovery, Leonard filed a 

motion for summary judgment, which the district court granted in 

a written order. Rando now appeals that determination. 

II. 

A. Standard of Review 

"We review an order for summary judgment de novo, 

evaluating the facts and all reasonable inferences therefrom in 

the light most flattering to the nonmoving party." Nieves-Romero 

v. United States, 715 F.3d 375, 378 (1st Cir. 2013). Summary 

judgment is warranted where "there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter 

of law." Fed. R. Civ. P. 56(a). "An issue is 'genuine' if the 

evidence of record permits a rational factfinder to resolve it in 

 

5 Accordingly, none of Rando's claims against CVS remain in this 

case. 
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favor of either party," and "'material' if its existence or 

nonexistence has the potential to change the outcome of the suit." 

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st 

Cir. 2010). 

B. Analysis

For the tort of intentional interference with 

contractual relations, 

a plaintiff must prove that (1) he had an 

advantageous relationship with a third party . . . ; 

(2) the defendant knowingly induced a breaking of 

the relationship; (3) the defendant's interference 

with the relationship, in addition to being 

intentional, was improper in motive or means; and 

(4) the plaintiff was harmed by the defendant's 

actions. 

Blackstone v. Cashman, 860 N.E.2d 7, 12-13 (Mass. 2007). Although 

Leonard concedes that Rando can satisfy the first element of the 

four-part test through her employment relationship with CVS, she 

asserts that Rando cannot make the other three showings. Because 

Rando fails to satisfy the third prong of the test -- that 

Leonard's alleged inducement was improper -- we need not reach 

Leonard's other arguments. 

In assessing whether a defendant acted with improper 

motive or means, Massachusetts courts apply a heightened standard 

where defendants are "'corporate officials' acting 'within the 

scope of their employment responsibilities.'" Id. at 13 (quoting 

Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 24 (Mass. 1981)). 
-8- 

In such instances, the plaintiff must carry the heavy burden of 

showing that the defendant acted with "actual malice," or, with "a 

spiteful, malignant purpose, unrelated to the legitimate corporate 

interest." Id. (quoting Wright v. Shriners Hosp. for Crippled 

Children, 589 N.E.2d 1241, 1246 (Mass. 1992)). 

In her motion for summary judgment before the district 

court and again on appeal, Leonard argued that she was a "corporate 

official" and the actual malice standard was therefore 

appropriate. By doing so, she fulfilled her threshold duty of 

"bringing to the attention of the plaintiff and the court in some 

fashion that [s]he claims to qualify as a 'corporate official' of 

the relevant corporation and therefore is entitled to have the 

actual malice standard apply." Weiler v. PortfolioScope, Inc., 

12 N.E.3d 354, 364 (Mass. 2014). Once Leonard asserted that she 

qualified as a corporate official, Rando "[bore] the burden of 

proving either that the defendant does not so qualify and is not 

entitled to the actual malice standard, or that the defendant did 

act with actual malice." Id. Rando does not carry this burden, 

as she has waived any argument that Leonard does not qualify as a 

"corporate official" and fails to produce evidence that Leonard 

acted with actual malice. 

In her opposition before the district court, Rando 

stated, in a single sentence, that she did not believe 
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Massachusetts case law supported Leonard's argument that she 

qualified as a corporate official and that Rando did "not waive 

the right to argue that a showing of malice is not required." On 

appeal, Rando's briefing on this issue is limited to a footnote in 

which she reiterates that she "does not waive the right to argue 

that a showing of malice is not required" and asserts, without 

developed argument, that "[c]orporate officials' status is 

reserved for owners and controlling officials of a company." 

Despite Rando's assertions to the contrary, these perfunctory 

arguments are insufficient to preserve her argument on appeal. 

See Armistead v. C & M Transp., Inc., 49 F.3d 43, 45 n.2 (1st Cir. 

1995) (deeming waived an "argument [that] was not fully developed 

below"); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

("[I]ssues adverted to in a perfunctory manner, unaccompanied by 

some effort at developed argumentation, are deemed waived.").6

 

6 Even if it were not waived, Rando's argument that the "corporate 

officials" analysis is reserved for more senior employees such as 

owners and shareholders is without merit. The term "corporate 

official" has been used "expansively" to include "high level 

corporate officers, as well as directors involved in management." 

Blackstone, 860 N.E.2d at 17; see also Zimmerman v. Direct Fed. 

Credit Union, 262 F.3d 70, 76 (1st Cir. 2001) (explaining that the 

actual malice analysis applies to "defendant-supervisors"); 

Boothby v. Texon, Inc., 608 N.E.2d 1028, 1040 (Mass. 1993) (same). 

Leonard need not have "day-to-day involvement" in the enterprise 

so long as her activities are "directed toward corporate purposes." 

Blackstone, 860 N.E.2d at 17 (quoting Gram, 429 N.E.2d at 24). 

Although she was not Rando's direct supervisor, Leonard acted in 

a managerial position and her actions here served the corporate 

purpose of "protection of company assets and reduction of 
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Although Rando's arguments regarding whether Leonard 

acted with actual malice are properly preserved, we find that Rando 

produces no evidence suggesting that Leonard acted with actual 

malice and without a legitimate corporate purpose. See Zimmerman 

v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir. 2001) 

("Proof of actual malice requires more than a showing of mere 

hostility."). Rando asserts that Leonard knowingly elicited a 

false confession from Rando because Leonard "was looking for 

someone to pin the blame on" after failing to find the cause of 

the continued butalbital and hydrocodone losses. Rando's only 

evidence on this point is that Leonard spoke to her boss, 

Christopher Crossman, about the thefts before interviewing Rando. 

But the mere fact that Leonard discussed an assignment with her 

boss does not suggest that she was frustrated or looking for 

someone to blame, as Rando argues. Rando also asserts that Leonard 

accused Rando "without any evidence establishing that theft." To 

the contrary, Leonard had reason to believe that Rando may have 

been the culprit: Rando worked at the Concord CVS when the thefts 

began, and she was caught on videotape stealing a bottle of 

butalbital. To be sure, Rando's theft of one bottle of butalbital 

 

shrinkage." Applying the "actual malice" standard here thus 

serves the policy of protecting those involved "in matters related 

to the conduct of the internal affairs of a corporation." Id. at 

16 n.15. 
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does not necessarily mean she was responsible for the other thefts. 

Nevertheless, there is no indication that Leonard, by 

investigating Rando's potential involvement in the overarching 

growth problem, acted with spite or malice.7 Rando claims that 

Leonard lied to her, but the record evidence does not support this 

assertion. Nor does Rando produce any evidence that Leonard 

harbored any ill will toward Rando. Indeed, their prior 

interactions, which were limited to polite greetings, were 

uneventful. At worst, Rando's testimony suggests that Leonard 

aggressively questioned Rando, informed Rando that she faced 

termination, threated to call the police, and yelled at her. We 

do not doubt that Rando felt frightened and upset by this 

encounter. Leonard's behavior, however, simply does not rise to 

the level of "actual malice." See Weber v. Cmty. Teamwork, Inc., 

752 N.E.2d 700, 716 (Mass. 2001) ("[E]vidence that a corporate 

official engaged in 'sloppy and unfair business practices' is an 

insufficient basis to negate the official's broad privilege to 

terminate an at-will employee." (quoting Gram, 429 N.E.2d at 25)); 

King v. Driscoll, 638 N.E.2d 488, 495 (Mass. 1994) ("[P]ersonal 

dislike will not warrant an inference of the requisite ill will."). 

 

7 Moreover, the evidence shows that during the interview Leonard 

asked Rando only one question about the hydrocodone. Once Rando 

denied stealing the hydrocodone, Leonard did not ask any further 

questions on that topic. 
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Recall, Leonard's job was to determine the source of the butalbital 

and hydrocodone losses: even if she did so in a hostile manner, 

that evidence cannot support a claim for intentional interference 

with contractual relations. 

III. 

Because the record is devoid of any evidence that Leonard 

acted with actual malice, the motion for summary judgment is 

affirmed. 

Affirmed.