Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 19-1774

LINDA FELIX,

Plaintiff, Appellant,

v.

TOWN OF KINGSTON, MASSACHUSETTS; SANDY MACFARLANE, as an 

individual and in her capacity as a member of the Board of 

Selectmen of the Town of Kingston; ELAINE FIORE, as an 

individual and in her capacity as a member of the Board of 

Selectmen of the Town of Kingston; DENNIS RANDALL, as an 

individual and in his capacity as a member of the Board of 

Selectmen of the Town of Kingston; THOMAS CROCE, as an 

individual and in his capacity as a member of the Council on 

Aging; FLORENCE CERULLO; ROBERT FENNESSY, Town Administrator for 

the Town of Kingston,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Donald L. Cabell, U.S. Magistrate Judge]

Before

Thompson, Lipez, Circuit Judges,

and Torresen,* District Judge.

Thomas Russell Mason, with whom Law Offices of Thomas Mason

was on brief, for appellant.

* Of the District of Maine, sitting by designation.
Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, 

Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

December 23, 2021
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THOMPSON, Circuit Judge. As the result of some sort of 

mutual misunderstanding, after her term as Director of Elder 

Affairs expired on December 31, 2013, Linda Felix ("Felix") found 

herself on leave under the Family and Medical Leave Act ("FMLA") 

from a job she no longer held. Felix requested and was granted 

the maximum FMLA leave1 by her employer, the Town of Kingston ("the 

Town"), but a few months into her leave, her job, which was a term 

position subject to reappointment, ended. She was not reappointed 

as Director or selected to interview when she reapplied as the

Town set about to fill the vacancy. 

The parties are familiar with the sequence of events 

that brought them to court, so we need not rehash all of those 

details here.2 Following her unsuccessful application for rehire,

Felix brought claims against the Town and various town employees3

for violation of the FMLA, 29 U.S.C. § 2615 (FMLA interference and 

FMLA retaliation, to be precise), Massachusetts' employment 

discrimination statute, M.G.L. c. 151B, its whistleblower 

1 The FMLA guarantees workers twelve weeks of unpaid leave 

during any twelve-month period for, among other things, a serious 

medical condition that renders the employee unable to perform her 

job duties. 29 U.S.C. § 2612(a)(1)(D)(c). 

2 For those less familiar and interested in learning more, 

see Memorandum and Opinion on Motion for Summary Judgment, No. 15-

CV-14022-DLC, 2019 WL 7565449 (D. Mass. July 8, 2019). 

3 We note that Appellee Thomas Croce, a member of the Council 

on Aging, is now deceased.
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protection statute, M.G.L. c. 149, § 185, and she also alleged

various state common law torts.4 Spying no genuine issue of 

material fact anywhere and determining the defendants were 

entitled to judgment as a matter of law, the magistrate judge5

issued a comprehensive memorandum and order granting summary 

judgment in favor of the defendants on all claims, and Felix asks 

us to reverse and remand the magistrate judge's decision. Having 

carefully reviewed the parties' submissions and the controlling 

case law, however, we see no reason to disturb the well-reasoned 

decision articulated below. And "when lower courts have 

supportably found the facts, applied the appropriate legal 

standards, articulated their reasoning clearly, and reached a 

correct result, a reviewing court ought not to write at length 

merely to hear its own words resonate." In re Brady-Zell, 756 

F.3d 69, 71 (1st Cir. 2014) (citing cases). We therefore affirm 

the comprehensive decision below, briefly adding a bit of our own 

discussion along the way.6

4 In her summary judgment briefing below and before us, Felix 

talks up a claim under the Americans with Disabilities Act, 42 

U.S.C. § 12101 et seq. (the "ADA"), but her amended complaint 

contained no such claim.

5 The parties consented to the jurisdiction of Magistrate 

Judge Cabell on April 11, 2016. See No. 15-cv-14022-DLC, Dkt. No. 

09.

6 We do not address each cause of action brought by Felix here 

because, as we mention above, we've thoroughly reviewed each claim 

and, like the magistrate judge, find them meritless. 
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First, some basic summary-judgment principles guide our 

brief discussion here. Our review is de novo. Brader v. Biogen 

Inc., 983 F.3d 39, 53 (1st Cir. 2020); Ortiz-Martínez v. Fresenius 

Health Partners, PR, LLC, 853 F.3d 599, 604 (1st Cir. 2017). 

Summary judgment is appropriate when "there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as

a matter of law." Ameen v. Amphenol Printed Cirs., Inc., 777 F.3d 

63, 68 (1st Cir. 2015) (quoting Barclays Bank PLC v. Poynter, 710 

F.3d 16,19 (1st Cir. 2013)). "A genuine issue of fact exists where 

'the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.'" Taylor v. Am. Chemistry Council, 576 

F.3d 16, 24 (1st Cir. 2009) (quoting Chadwick v. WellPoint, Inc., 

561 F.3d 38, 43 (1st Cir. 2009)). The court must examine "the 

record in the light most favorable to the nonmovant" and must make 

"all reasonable inferences in that party's favor." Ameen, 777 

F.3d at 68 (quoting Barclays, 710 F.3d at 19). "While we resolve 

all reasonable inferences in favor of the nonmoving party, we 'must 

ignore conclusory allegations, improbable inferences, and 

unsupported speculation.'" Taylor, 576 F.3d at 24 (quoting Am. 

Steel Erectors, Inc. v. Loc. Union No. 7, Int'l Ass'n of Bridge, 

Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 

(1st Cir. 2008)). We are free to affirm the entry of summary 

judgment "on any basis apparent in the record."

Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 86 (1st Cir. 2012) 
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(quoting Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st 

Cir. 2010)).

Before us, Felix sweepingly asserts7 that the district 

court failed to take her factual allegations as true and draw all 

reasonable inferences in her favor. Somewhat more specifically, 

Felix insists, primarily, that there are three factual matters the 

magistrate judge either overlooked or got wrong -- specifically, 

facts that prove she was retaliatorily terminated and facts which 

demonstrate the merits of her state law cause of action. These 

errors, she asserts, doomed her FMLA and Massachusetts disability 

claims. Countering, appellees insist that the record reveals "no 

genuine issue as to any material fact and [that] the Defendants 

are entitled to judgment as a matter of law." 

The first fact Felix hammers is a May 29, 2014 email 

from John Clifford, former counsel for the Town, which stated that

following her FMLA leave, Felix did not return to her position and 

was terminated. Felix leans heavily on the use of the word

"terminated" -- urging that this is "smoking gun" evidence she was 

affirmatively "terminated" as opposed to her appointment expiring, 

simply because this email literally says so. But we agree with 

7 As mentioned earlier, Felix argues that the lower court 

failed to make all reasonable inferences in her favor, but never 

clearly delineates which particular legal determinations were 

affected by this supposed failure concerning her purported 

"termination." 
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the magistrate judge's assessment on this matter: A smoking gun 

it is not. Notwithstanding the email's use of the word 

"terminated," the timeline here, as borne out by the record,

supports only the conclusion that Felix's formal appointment had 

ended, and as of January 1, 2014, Felix was no longer employed by 

the Town. As the magistrate judge stated during the summary 

judgment argument, "there is an unfortunate dissidence between the 

way people were talking about what happened to her as of December 

31st [2013]. Because it is clear, it is beyond dispute that her 

position formally ended." Put differently and consistent with 

record support, this is ultimately a matter of poor word choice on 

the part of the Town counsel, but it does not carry with it the 

legal import Felix wants it to. She wasn't fired or terminated;

her appointment came to a natural end when the Town Board of 

Selectmen did not vote to renew her term. And, once her 

appointment contractually ended, the Town was under no obligation 

to restore her to her position -- or any other position, and Felix 

doesn't argue otherwise.8 See generally Town of Brookfield v. Lab.

Rels. Comm'n, 443 Mass. 315, 316-17, 821 N.E.2d 51, 53 (2005) 

(police officers' terms expired and employment ended when their 

8 Of course, had Felix returned to work before her position 

ended, she would have been entitled to be reinstated to her 

previous position, 29 U.S.C. § 2614(a)(1)(A), or "to an equivalent 

position with equivalent employment benefits, pay, and other terms 

and conditions of employment." Id., § 2614(a)(1)(B); see also 29 

C.F.R. § 825.215 (defining the phrase "equivalent position").
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names were not submitted to the board of selectmen, and the board 

did not vote on whether to reappoint them); Mass. Coal. of Police, 

Loc. 165, AFL-CIO v. Town of Northborough, 416 Mass. 252, 255, 620 

N.E.2d 765, 767 (1993) (town's board of selectmen's decision not 

to reappoint police officer ended his employment, but court 

concluded he had not been terminated or removed from his position). 

Felix cannot rest her claims of retaliation on a 

termination (i.e., adverse employment action) that never occurred, 

so the Town counsel's misuse of the term "terminated" does not 

amount to an actual adverse employment action necessary to 

establish a claim of retaliation. See Carrero-Ojeda v. Autoridad 

de Energía Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014) (in a FMLA 

retaliation case, plaintiff alleging retaliation must establish 

that she availed herself of a protected FMLA right, that she was 

adversely affected by an employment decision, and that there was 

a causal connection between her protected conduct and the adverse 

employment action). 

The second factual issue that Felix believes the lower

court overlooked is more evidence she contends supports her 

assertion that she was terminated rather than simply not 

reappointed as the Town insists happened. This time, Felix points 

to litigation deposition testimony from a Town employee, Nancy 

Howlett, who said that Robert Fennessy, the Town Administrator, 

told her to pay Felix her (presumably) accrued vacation time 
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because her appointment was up in December of 2013 and Felix was 

not coming back.9 This statement, says Felix, proves she was 

fired. But we do not see how any reasonable juror could derive 

that conclusion from this testimony. Fennessy's statement was

quite literally true. As stated before, the Town had no obligation 

to extend her employment and the selectmen opted not to do so. 

See Brader, 983 F.3d at 53 ("The nonmovant cannot rely on conclusory 

allegations, improbable inferences, and unsupported 

speculation."). Therefore, we, like the magistrate judge before 

us, do not read into this statement what Felix suggests. 

The final fact issue we want to touch upon concerns 

Felix's claim made under Mass Gen. Laws ch. 151B § 4(16) that when 

she reapplied for her job after both her appointment and FMLA leave 

ended, the Town requested information about her disability in 

contravention of Mass. Gen. Laws ch. 151B § 4(16). This statute

prohibits employers from "mak[ing] preemployment inquiry of an 

applicant as to whether the applicant is a handicapped individual 

or as to the nature or severity of the handicap," but it is 

currently unsettled as to whether the statute provides a private 

cause of action. See Martino v. Forward Air, Inc., 609 F.3d 1, 3-

4 (1st Cir. 2010) (quoting Mass. Gen. Laws ch. 151B § 4(16)). 

9 The record citation to this statement does not include a 

date or time that this conversation occurred, making it even more 

difficult to assess its meaning in relation to the other events, 

including her appointment ending. 
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Even if we assume favorably to Felix that there is a 

private cause of action (as the magistrate judge did, too), Felix 

can't win on this issue. The record evidence includes a brief 

email exchange between the Town's counsel and Felix's counsel 

following the end of Felix's FMLA leave and that she was 

potentially going "to apply for a reasonable accommodation." In 

it, the Town's counsel requests a list of any accommodations Felix 

might need along with Felix's request to be reappointed to her 

position, and he assures Felix's counsel that any conversations 

regarding accommodations would happen outside of the public eye.

Notably, the Town's counsel and Felix's counsel never actually 

discuss any potential accommodations Felix may require, and 

according to Fennessy's deposition testimony, the Town's counsel 

played no role in the selection process when Felix reapplied, i.e.,

any information he may have received about her disability (which 

appears to be none) would not have been a part of the deliberation 

over her candidacy. Beyond self-serving conjecture, Felix 

presented no evidence to refute these declarations. Therefore, as 

the magistrate judge noted, this inquiry, when viewed in context, 

is not the type of pre-employment inquiry contemplated by Mass. 

Gen. Laws. ch. 151B § 4(16).10 We agree -- so we decline to 

consider it further. 

10 Indeed, had Felix's term been extended, or had she been 

hired for the Director position upon reapplication and needed an 
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As we mentioned a few pages ago, our discussion here is

brief and to the point because the magistrate judge carefully 

analyzed and disposed of each claim. See In re Brady-Zell, 756 

F.3d at 71. Despite Felix's attempts to persuade us -- and the 

magistrate judge -- otherwise, Felix simply hasn't "adduce[d]

specific facts showing that a trier of fact could reasonably find 

in [her] favor." Thompson v. Gold Medal Bakery, Inc., 989 F.3d 

135, 141 (1st Cir. 2021) (quoting Brader, 983 F.3d at 53). She 

"cannot rely on conclusory allegations, improbable inferences, 

acrimonious invective, or rank speculation," id., (internal 

quotations omitted) and, upon our review, we conclude that's what 

happened here (and below). Indeed, Felix has not provided any

specific facts beyond her own speculation and conclusions 

unsupported by record evidence to show that she was discriminated 

against or retaliated against when her employment with the Town 

ended, and because of that, we affirm. 

Each party shall bear its own costs. 

accommodation due to a disability, engaging in an interactive 

process would have necessitated disclosure of her medical issues. 

See Mass. Gen. Laws ch. 151B § 4(1E)(c).