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
BARRON, Circuit Judge. The appellant was 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 His difficulties with that

company started in July of 2006. 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 of the audit, New York 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 human resources department that referred to his

"upcoming retirement on May 1, 2009." Confused, 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 Chapter 151B, which likewise prohibits age

discrimination. 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. 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. New York Life then

moved for summary judgment on all the 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). "We may affirm such an order on any ground revealed by

the record." 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. Although

the statutes are similar, they are not identical. 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 known that he had been "harmed by the

defendant's conduct." 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)." SotoFeliciano 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. See Vélez, 585 F.3d at

447-48. 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 age in firing him. None 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

-10-
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." Rather, his status is that of an "inactive Retired

Agent." 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. The District Court held that New York Life did not

breach its contract with Santangelo 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 And without some such

6 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 recovery." See J.A. Sullivan Corp. v.

Commonwealth, 494 N.E.2d 374, 377 (Mass. 1986) ("In a case

involving an unenforceable contract, we allowed quantum meruit

recovery, basing our reasoning on the theory of unjust

enrichment."). 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 Retired Agent's

contract in order to receive SSNI payments. 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." Liss, 879

N.E.2d at 682. 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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