United States Court of Appeals

For the First Circuit

No. 21-1609

THOMAS DUSEL,

Plaintiff, Appellant,

v.

FACTORY MUTUAL INSURANCE COMPANY, d/b/a FM GLOBAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Barron, Chief Judge,

Gelpí, Circuit Judge,

and Katzmann,* Judge.

Danielle Callahan Gill, with whom Callahan Law Group, LLC was 

on brief, for appellant.

Matthew A. Porter, with whom Todd H. Girshon, Jonathan C. 

Hatfield, and Jackson Lewis P.C. were on brief, for appellee. 

November 1, 2022

* Of the United States Court of International Trade, sitting 

by designation. 
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GELPÍ, Circuit Judge. Appellant Thomas Dusel ("Dusel")

was an employee of Appellee Factory Mutual Insurance Company, d/b/a 

FM Global ("FM Global") until his termination on September 12, 

2018. Dusel, alleging that the stated grounds for his firing were 

pretextual, brought suit against FM Global in Massachusetts state 

court alleging age discrimination and retaliation against a 

protected activity. The action was removed to the United States

District Court for the District of Massachusetts, which granted FM 

Global's motion for summary judgment on both claims. We affirm. 

I. Background

Dusel, a citizen of Massachusetts, was an employee of FM 

Global, a commercial property insurer headquartered in Rhode 

Island, for approximately thirty-five years. At the time of his 

termination, Dusel was President and Chief Executive Officer 

("CEO") of Hobbs Brook Management ("HBM"), a Waltham, 

Massachusetts-based subsidiary of FM Global which provides real 

estate management and services for its properties. Several 

employees reported to Dusel in his capacity as President and CEO

of HBM, including Kevin Casey ("Casey"), HBM's Vice President of 

Leasing and Construction. 

In 2015, Patricia Holland ("Holland"), an HBM employee, 

filed a complaint with FM Global's Human Resources ("HR") 

department alleging harassment and other inappropriate behavior by

Casey, then her supervisor. HR conducted an investigation but 
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declined to discipline Casey. Dusel later testified at a 

deposition that he did not consider himself a witness to the 

specific alleged behavior that was the subject of the 2015 

investigation, but that he nonetheless disagreed with the outcome 

of the inquiry and had expressed as much to HR. In February 2018, 

Holland filed another complaint against Casey alleging workplace 

misconduct, whereupon a second internal investigation ensued. 

Dusel claims that Holland initially came to him with her concerns, 

which he passed along to his supervisors, and that he had 

encouraged her to reach out to HR. Pursuant to the second 

investigation, Dusel reported to HR over the course of three 

interviews that he had observed Casey acting aggressively toward 

different men and women, including Holland, and that other

employees had previously expressed concerns regarding the 

workplace environment created by Casey. HR again concluded that 

it lacked sufficient evidence to determine that Casey had violated 

FM Global's policies. 

Following the second HR investigation, FM Global decided

in March 2018 to relocate HBM's management team to FM Global's 

corporate headquarters in Johnston, Rhode Island, and to rearrange 

HBM's organizational structure such that Casey and Holland would 

report directly to Alex Tadmoury, Dusel's supervisor at FM Global. 

Dusel was displeased by this decision, and in April and June 2018 

sent letters through an attorney to FM Global protesting that the 
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move would substantially increase his commute time and diminish 

his job responsibilities. Dusel suggested that FM Global's stated 

reasons for the operational changes were pretextual, and that FM 

Global was in fact retaliating against him in connection with his 

role in the 2018 HR investigation into Casey. Dusel also 

complained, in his June 2018 letter, that his May 9 performance 

review -- wherein he received an overall rating of "Meets 

Expectations" -- similarly evinced FM Global's continued 

retaliatory animus. FM Global disputed that the changes were 

punitive in nature, claiming that they were intended to increase 

cohesion among the HBM leadership team, enable better supervision

by FM Global, and defuse interpersonal tensions that were revealed 

by the HR investigation. 

In July 2018, FM Global began an audit of the cell phone 

account for HBM after an HBM employee sought to retain his cell 

phone following his departure from the company. During the

investigation, FM Global discovered that Dusel possessed three 

cell phone lines, two of which belonged to his wife and daughter, 

which had been charged to the company's account for several years. 

Dusel never reimbursed HBM for these expenses. While the 

investigation into HBM's cell phone expenses was ongoing, Dusel 

transferred his wife and daughter's cell phone lines from the 

company plan to a personal account. Shortly thereafter, Dusel 

told company investigators that none of his family members had
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phone lines charged to HBM's company account, without informing 

them that the phone lines had been charged to HBM until the 

previous month. In August 2018, FM Global produced a report 

concluding that Dusel had been untruthful in several respects with 

regard to the cell phone investigation. Dusel disputes having 

deceived the investigators, claiming that he had been confused 

about the phone lines and arguing that his statement as to none of 

his family members having any service plans charged to HBM was 

technically truthful at the time he made the claim. 

Concurrently with the cell phone investigation, FM 

Global opened an inquiry into Dusel's frequent visits to an HBMowned building in Wakefield, Massachusetts (the "Wakefield 

facility") outside of normal business hours. Surveillance footage 

revealed Dusel entering the Wakefield facility's cafeteria on 

several occasions carrying an empty bag and leaving shortly 

thereafter with a full bag. FM Global found evidence that Dusel 

had visited the facility at least eighty-seven times in the 

previous two years, frequently after work hours or on weekends. 

In a report, FM Global concluded that Dusel had likely been 

stealing food from the Wakefield facility for several years. 

Dusel, for his part, denies taking food from company property

without compensating HBM. 

In September 2018, FM Global terminated Dusel on the 

stated grounds of violations of the company's code of conduct and 
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misappropriation of company services and property. Following

Dusel's termination, FM Global found that Dusel had amassed a 

considerable physical and electronic collection of sexually 

explicit materials in his office, all in violation of FM Global 

policy. Dusel admitted in a deposition to accessing adult 

materials using company servers. Prior to the events in question, 

Dusel had never been formally disciplined by FM Global. 

On July 17, 2019, Dusel brought suit against FM Global 

in Massachusetts state court, alleging age discrimination and 

retaliation under Mass. Gen. Laws ch. 151B, § 4(1B) and § 4(4).1 

FM Global removed the action to federal court on the basis of 

diversity jurisdiction, and filed an Answer with Counterclaims 

against Dusel for misappropriation, waste of corporate assets, 

conversion, unjust enrichment, and breach of fiduciary duty. On 

1 In relevant part, Mass. Gen. Laws ch. 151B, § 4(1B) makes 

it unlawful

[f]or an employer in the private sector . . . because of 

the age of any individual, to refuse to hire or employ 

or to bar or to discharge from employment such 

individual, or to discriminate against such individual 

in compensation or in terms, conditions or privileges of 

employment, unless based upon a bona fide occupational 

qualification.

Mass. Gen. Laws ch. 151B, § 4(4) provides that it is illegal 

for an employer "to discharge, expel or otherwise discriminate 

against any person because he has opposed any practices forbidden 

under this chapter or because he has filed a complaint, testified 

or assisted in any proceeding under section five [of Mass. Gen. 

Laws ch. 151B]." 
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April 21, 2021, the parties cross-moved for summary judgment. 

Later, Dusel filed a motion to exclude evidence relating to the

pornographic materials as well as motions to strike certain 

affidavits FM Global had filed in support of its motion for summary 

judgment and certain paragraphs from its Statement of Undisputed 

Material Facts. On July 14, 2021, the district court denied 

Dusel's motions and granted summary judgment in favor of FM Global, 

dismissing Dusel's complaint in its entirety. Dusel v. Factory 

Mut. Ins. Co., No. 19-11698, 2021 WL 2953322, at *10 (D. Mass July 

14, 2021). Subsequently, FM Global dismissed its counterclaims 

without prejudice. Dusel timely appealed. 

II. Discussion

On appeal, Dusel contends that the district court erred 

in granting summary judgment on the retaliation and age 

discrimination claims and in denying Dusel's evidentiary motions. 

We assess Dusel's arguments regarding the age discrimination and

retaliation claims and the evidentiary motions seriatim.

A. The District Court Did Not Err in Granting Summary Judgment to 

FM Global on Dusel's Age Discrimination and Retaliation Claims

1. Standard of Review 

We review a district court's grant or denial of summary 

judgment de novo, examining the record in the light most favorable

to the nonmovant and drawing all reasonable inferences in that 

party's favor. Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 
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20, 25 (1st Cir. 2015). "To prevail, the movant must demonstrate 

that 'there is no genuine dispute as to any material fact' and 

that it 'is entitled to judgment as a matter of law.'" Id. (quoting 

Fed. R. Civ. P. 56(a)). This standard is unchanged when the 

district court disposes of cross-motions for summary judgment 

simultaneously. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 

1996). Facts are material if they "might affect the outcome of 

the suit under the governing law." Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). If the party moving for summary 

judgment is able to make a showing that there is no genuine issue 

of material fact, "the burden shifts to the nonmoving party, who 

must, with respect to each issue on which [it] would bear the 

burden of proof at trial, demonstrate that a trier of fact could 

reasonably resolve that issue in [its] favor." Flovac, Inc. v. 

Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016) (alterations in 

original) (quoting Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 

F.3d 1, 5 (1st Cir. 2010)). Evidence of a genuine dispute of 

material fact "must be 'significantly probative'" and "more than 

'merely colorable.'" Id. (quoting Anderson, 477 U.S at 249-50).

2. The Age-Discrimination Claim

Massachusetts's antidiscrimination statute forbids 

employers from discriminating against or terminating employees 

based on their age. Mass. Gen. Laws ch. 151B, § 4(1B). Under 

Massachusetts law, there are "four elements an employee must prove 
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to prevail on a claim of discrimination in employment: membership 

in a protected class, harm, discriminatory animus, and causation." 

Sullivan v. Liberty Mut. Ins. Co., 825 N.E.2d 522, 530 (Mass. 

2005). If direct evidence of the latter two factors is 

unavailable, Massachusetts courts apply the burden-shifting

framework articulated in McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802–05 (1973), by which a plaintiff may establish animus 

or causation. Sullivan, 825 N.E.2d at 530 & n.11 (noting that it 

is the Massachusetts Supreme Judicial Court's "practice to apply 

Federal case law construing the Federal antidiscrimination 

statutes in interpreting [Mass. Gen. Laws ch.] 151B" (quoting

Wheatley v. Am. Tel. & Tel. Co., 636 N.E.2d 265, 268 (Mass. 

1994))). Under this tripartite framework, a plaintiff bears the 

initial burden of establishing a prima facie case of age 

discrimination by demonstrating that he or she "(1) was a member 

of the class protected by [Mass. Gen. Laws ch.] 151B (that is, 

over forty years of age); (2) had performed [his or] her job at an 

acceptable level; (3) was terminated; and (4) was replaced by a 

similarly or less qualified" person at least five years younger.

Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1262, 1265 (Mass. 

2003) (footnote omitted).2 If the plaintiff is able to establish 

2 Knight further clarifies that "the elements of the prima 

facie case will vary depending on, among other things, the type of 

discrimination alleged and the protected category at issue" and 
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a prima facie case, the burden of production -- though not, at 

summary judgment, the burden of persuasion -- "shifts to the 

employer to 'articulat[e] a legitimate, nondiscriminatory reason 

for its hiring decision,'" whereupon "the burden of production 

shifts back to the employee to produce evidence that 'the 

employer's articulated justification [for the adverse action] is 

not true but a pretext.'" Verdrager v. Mintz, Levin, Cohn, Ferris, 

states that to satisfy the fourth element of the prima facie case

in an age-discrimination suit, a plaintiff must either show 

replacement by a "substantially younger" individual "or otherwise 

present some evidence that supports a reasonable inference that 

age was a determinative factor in the employer's decision." 780 

N.E.2d at 1258, 1261 n.4. How courts lay out the final prong of 

the prima facie case can differ slightly depending on the case. 

See, e.g., Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st 

Cir. 2007) (fourth prong, in an age-discrimination case brought 

under both federal law and Mass. Gen. Laws ch. 151B, § 4(1B), was 

satisfied if the "employer had a continuing need for the services 

that he had been rendering"); Sullivan, 825 N.E.2d at 531, 533-34

(fourth prong requires that "employer sought to fill [the 

employee's] position by hiring another individual with 

qualifications similar to [the employee's]," and, at least in a 

reduction-of-force case, this is met if the plaintiff can proffer 

"some evidence that [the plaintiff's] layoff occurred in 

circumstances that would raise a reasonable inference of unlawful 

discrimination"); see also Abramian v. Pres. & Fellows of Harvard 

Coll., 731 N.E.2d 1075, 1084 (Mass. 2000) (noting that the specific 

elements of the prima facie showing "may vary depending on the 

specific facts of a case" (quoting Blare v. Husky Injection Molding 

Sys. Bos., Inc., 646 N.E.2d 111, 115 (Mass. 1995))). Here, it is 

only the second prong of the prima facie case -- acceptable job 

performance -- that the district court found lacking. In its 

briefing to us, FM Global similarly contends that Dusel failed to 

establish adequate performance, but does not dispute that Dusel

met the other elements of the prima facie case. As such, we 

assume, for purposes of summary judgment, that it is only the 

acceptable-performance prong that is in dispute. 
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Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016) (alterations 

in original) (quoting Blare, 646 N.E.2d at 115-16).

We begin with the prima facie case. "Whether a plaintiff 

has proffered evidence sufficient to establish a prima facie case 

is a question of law and depends on the specific facts of a case." 

Knight, 780 N.E.2d at 1263. The Supreme Court has made clear that 

the first stage of the McDonnell Douglas framework is "not 

onerous." Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253

(1981). Indeed, "[w]e have described this prima facie showing as 

'modest,' and a 'low standard.'" Vélez v. Thermo King de P.R., 

585 F.3d 441, 447 (1st Cir. 2009) (first quoting Rathbun v. 

Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004); and then quoting

Zapata–Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.

2002)); accord Villanueva v. Wellesley Coll., 930 F.2d 124, 127 

(1st Cir. 1991) (prima facie showing of employment discrimination 

is "quite easy to meet"). 

Notwithstanding this relatively lax standard, the 

district court determined that Dusel had failed to meet his burden

at the prima facie stage because he was unable to demonstrate that 

he performed his job at an acceptable level. Dusel, 2021 WL 

2953322, at *6. In so holding, the court emphasized that Dusel 

had failed to counter the evidence mustered by FM Global showing 

"1) that he had improperly charged the company for personal phone 

lines and other expenses, 2) that he had problems managing his 
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staff and 3) [that] security camera footage [depicted] Dusel 

entering company-owned property outside of business hours and for 

no legitimate business purpose." Id. Further, while Dusel offered

his track record of positive performance reviews and substantial 

compensation as evidence that he was performing his job at an 

acceptable level, the court determined that previous "[y]ears of 

positive performance do not . . . create a genuine dispute as to 

an employee's performance at the time of his termination," and 

that his compensation was likewise not probative of his "day-today performance of his job." Id. As such, the district court 

concluded, "[t]he evidence indicates that there is no genuine 

dispute as to whether plaintiff can establish a prima facie case 

of age discrimination." Id. 

On review, we find that the district court erred in 

determining that Dusel failed to make out a prima facie case of 

age discrimination. "A plaintiff is not required, at the prima 

facie stage, to disprove the defendant's proffered 

nondiscriminatory reason for taking an adverse employment action." 

Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 139 (1st 

Cir. 2012) (district court erred in considering employer's 

"alleged reason for dismissal" at the first stage of the McDonnell 

Douglas analysis). Such evidence properly comes into play only at 

the second and third stages of the McDonnell Douglas framework, 

where the burden shifts to the employer to offer a legally 
- 13 -

sufficient rationale for the adverse employment action, and (if 

such an explanation is provided) the burden returns to the employee 

to demonstrate that such rationale was pretextual. See id. As 

such, by requiring Dusel to respond to FM Global's stated reasons 

for his termination at the outset (to wit, Dusel's improper cell 

phone charges, staff management issues, and suspicious after-hours 

visits to company property), the district court placed too much

heft onto a burden that, at the prima facie stage, is intended to 

be light. "This error," we have noted, "was captured well" by the 

Sixth Circuit's explanation that

[a] court may not consider the employer's alleged 

nondiscriminatory reason for taking an adverse 

employment action when analyzing the prima facie case. 

To do so would bypass the burden-shifting analysis and 

deprive the plaintiff of the opportunity to show that 

the nondiscriminatory reason was in actuality a pretext 

designed to mask discrimination.

Vélez, 585 F.3d at 448 (quoting Wexler v. White's Fine Furniture, 

Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc)); see also

Meléndez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010) 

(similar). 

In seeking to establish acceptable performance at his 

job -- here, the only disputed element of the prima facie case --

Dusel points to his thirty-five-year employment history at FM 

Global, including many years of positive performance reviews, 

elevation to HBM President and CEO, and significant bonus 

compensation. Despite the district court's skepticism, under our 
- 14 -

precedents, this evidence more than suffices to meet Dusel's burden 

of showing acceptable performance. See, e.g., Vélez, 585 F.3d at 

448 (plaintiff's "long record of employment," including previous 

promotions and a "twenty-four year period without discipline or 

indications of deficient performance," established acceptableperformance prong of prima facie case); Acevedo-Parrilla, 696 F.3d 

at 139 (burden of showing adequate job performance was met where 

plaintiff had "prior, well-rated experience" in the industry and 

"a long history of employment at the company, spanning an elevenyear period, with overall positive reviews"); Freeman v. Package 

Mach. Co., 865 F.2d 1331, 1334-35 (1st Cir. 1988) ("job-performance 

integer of the prima facie case" satisfied where plaintiff "adduced 

credible evidence that his work was adequate to meet [employer's]

legitimate expectations," such as a lengthy employment history and 

a "string of promotions and bonuses"). Accordingly, because we 

cannot take into account FM Global's asserted rationale for

terminating Dusel in assessing whether he made a prima facie 

showing of age discrimination, and because Dusel "tendered some 

evidence which, if believed, proved that he was doing his chores 

proficiently," Freeman, 865 F.2d at 1335, we hold that Dusel has 

carried his modest burden at the first stage of the McDonnell 

Douglas framework.

Nevertheless, although we disagree with the district 

court's determination that Dusel failed to make a viable prima 
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facie case of age discrimination, we agree with its determination

that Dusel's claim runs aground at the subsequent step of the 

McDonnell Douglas scheme. The district court held that summary 

judgment would still have been appropriate even if Dusel had made 

a viable prima facie case, because FM Global articulated 

legitimate, nondiscriminatory reasons for his termination, and 

Dusel had failed to adduce evidence that this stated rationale was 

pretextual. Dusel, 2021 WL 2953322, at *6-7. On appeal, Dusel 

contends that the district court erred in these conclusions, 

disputing that he committed misconduct and arguing that the 

district court impermissibly discounted evidence pointing to a 

genuine dispute of material fact as to whether FM Global's stated 

reasons for his termination were pretextual. 

At the second stage of the McDonnell Douglas approach, 

the burden of production shifts to the employer to spell out a 

legitimate, nondiscriminatory reason for the adverse employment 

action. If the "employer's proffered reason is facially adequate 

to constitute a legitimate, nondiscriminatory justification for 

the employer's actions," then the "presumption arising from a 

discrimination plaintiff's prima facie case vanishes," and the 

burden returns to the employee to demonstrate that the employer's 

asserted reasons were pretextual. Mesnick v. Gen. Elec. Co., 950 

F.2d 816, 824-25 (1st Cir. 1991). Here, FM Global has introduced

evidence to the effect that such nondiscriminatory reasons served 
- 16 -

as the basis for Dusel's termination -- specifically, an affidavit 

from the company's Chief Financial Officer Kevin Ingram (supported 

by the company's investigative documents) stating that FM Global 

terminated Dusel because he had violated company policy by charging 

multiple personal phone lines for several years to FM Global, 

attempted to conceal this behavior and lied to investigators about 

the issue, and made scores of after-hours trips to the Wakefield 

Facility, from which he appeared to be taking significant 

quantities of food according to video footage. Accordingly, FM 

Global has satisfied its burden of articulating legitimate, 

nondiscriminatory reasons for Dusel's termination.3

At the final stage of the McDonnell Douglas scheme, the 

burden returns to Dusel to demonstrate that FM Global's asserted 

reasons for his termination were pretextual. In attempting to 

argue that FM Global's reasons for his termination were indeed 

pretextual, Dusel does not rely on direct evidence of FM Global's 

age-based animus, but primarily alleges instead disparate 

3 While Dusel disputes certain of FM Global's allegations of 

misbehavior, at the second stage of the McDonnell Douglas framework 

the employer must satisfy "only a burden of production, not a 

burden of persuasion." Mesnick, 950 F.2d at 823; accord Sullivan, 

825 N.E.2d at 537-38. Indeed, it need not prove that "it was 

actually motivated by the proffered reasons," but only that there 

exists at least "a genuine issue of fact as to whether it 

discriminated against the plaintiff." Burdine, 450 U.S. at 254. 

Thus, by claiming that FM Global's "nondiscriminatory reasons for 

his termination are very much in dispute," Dusel effectively 

concedes that FM Global met its burden at the second step of the 

McDonnell Douglas scheme.
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treatment vis-à-vis Kevin Casey. The gravamen of Dusel's argument 

is essentially that Casey, like Dusel, had multiple cell phone 

lines charged to the company, but was not terminated. That Dusel 

was fired while Casey was retained, Dusel suggests, gives rise to 

an inference that FM Global's asserted rationale was pretextual.

This argument fails. For one thing, as the district 

court noted, Casey was not implicated in the same misconduct that 

forms the basis of FM Global's articulated rationale for Dusel's 

termination.4 See Dusel, 2021 WL 2953322, at *6 (noting that, 

unlike Casey, FM Global accused Dusel of apparent food theft and

attempting to deceive company investigators regarding the misuse 

of phone lines). For another, to allow an inference of pretext 

from evidence of disparate treatment, Dusel must identify a 

"similarly situated" comparator. Matthews v. Ocean Spray 

Cranberries, Inc., 686 N.E.2d 1303, 1310 (Mass. 1997) ("The most 

probative means of establishing that the plaintiff's termination 

4 Dusel also argues that Casey separately ran afoul of an 

anti-nepotism policy and improperly mischarged the firm for 

certain wedding expenditures. Whatever the veracity of these 

various allegations, they do not alter the conclusion that Dusel's 

alleged misconduct differed from that of Casey. For its part, FM 

Global contends that the firm's anti-nepotism policy was only put 

in place after Casey had hired the relatives in question, and 

argues that the record neither evidences that Casey mischarged FM 

Global for any wedding expenses nor indicates that Casey's phone 

lines were active or put to personal use, as is undisputedly the 

case for Dusel. 
- 18 -

was a pretext . . . is to demonstrate that similarly situated [] 

employees were treated differently."). That is, someone who is 

substantially similar to those of the complainant "in 

all relevant aspects" concerning the adverse employment 

decision. "The test is whether a prudent person, looking 

objectively at the incidents, would think them roughly 

equivalent and the protagonists similarly 

situated. . . . In other words, apples should be 

compared to apples." 

Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 871 N.E.2d 444, 450 

(Mass. 2007) (citation omitted) (quoting Dartmouth Rev. v. 

Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on 

other grounds by Educadores Puertorriqueños en Acción v. 

Hernández, 367 F.3d 61 (1st Cir. 2004)). We are skeptical that 

Casey -- who, as Dusel's subordinate had a different title, fewer 

responsibilities, and lower compensation -- is similarly situated

"in all relevant respects" to Dusel, and Dusel makes no effort in 

his briefing to contend otherwise. As such, we reject Dusel's 

argument that, on this basis, a reasonable factfinder could 

conclude that FM Global's stated reasons for terminating Dusel 

were pretextual.

Dusel also further charges that the district court erred 

in failing to identify factually disputed issues regarding his 

termination that could give rise to an inference of pretext, 

impermissibly weighing evidence that properly belonged before a 

jury. His argument in this regard appears to be that, if a 

factfinder were to resolve certain factual disputes in his favor 
- 19 -

-- in particular, disputes about whether he actually misused 

company phone accounts, intended to mislead investigators, or 

stole food from the Wakefield Facility -- such findings would lead

the factfinder to "have serious doubt as to the veracity of [FM 

Global's] allegations of theft," which could give rise to an 

inference of pretext. 

But, evidence that would provide a supportable basis for 

reaching a different conclusion than the employer did with respect 

to its stated basis for the employment action does not suffice for 

a plaintiff to defeat summary judgment on the ground that the 

employer's stated basis was pretextual. See Bulwer v. Mount Auburn 

Hosp., 46 N.E.3d 24, 33 (Mass. 2016) (explaining that, to survive 

summary judgment, the plaintiff must present "evidence from which 

a reasonable jury could infer that the [employer]'s facially proper 

reasons given for its action . . . were not the real reasons" that 

the employer took that action) (internal quotation omitted); 

accord Forsythe v. Wayfair, Inc., 27 F.4th 67, 80 (1st Cir. 2022) 

("[I]t is not enough . . . 'to impugn the veracity of' [the 

employer]'s stated reason for [the employment action]." (quoting 

Ponte v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir. 2014)

(internal quotation omitted))). Rather, when a plaintiff seeks to 

show pretext by debunking the stated reason for the adverse 

employment action, they must present evidence from which a 

reasonable jury could supportably conclude "that the employer's 
- 20 -

explanation is not just wrong, but that it is so implausible that 

the employer more likely than not does not believe it." Wayfair, 

27 F.4th at 80 (citing Collazo-Rosado v. Univ. of P.R., 765 F.3d 

86, 93 (1st Cir. 2014)). 

Here, even accepting Dusel's premise that a jury could 

supportably find on this record that he was not responsible for 

the precise misconduct alleged by FM Global,5 it does not follow 

that a jury could supportably find on this record that FM Global's 

leaders likely did not "believe [their] stated reason to be 

credible." Mesnick, 950 F.2d at 824. And, we see nothing in our 

review of the record that would permit such a finding.6

5 We note that, despite Dusel's contentions, it appears 

undisputed from the summary judgment record that, inter alia, Dusel

improperly charged HBM for his wife and daughter's phone plans for 

an extended period of time, failed to inform company investigators 

about these charges even as he sought to remove these plans from 

the company account, and entered company cafeterias over eighty 

times, frequently after business hours, wherein video evidence 

appeared to show him leaving with full bags that had been empty 

minutes before. 

6 Dusel also points to affidavits from two other former FM 

Global employees averring, in a conclusory fashion, that they 

believe age was a factor in their terminations. But we do not see 

how these separate allegations of age discrimination meaningfully 

bear on Dusel's own claims, and, absent more, are insufficient to 

give rise to any inference that would help Dusel surmount the 

summary judgment hurdle. See Medina-Munoz, 896 F.2d at 10 

("Particularly in a case like this one, where the employee's 

evidence of pretext is tenuous, these fragmentary tendrils do not 

suffice, without more, to prove that [the employer's] dismissal of 

[the employee] was motivated by age discrimination.").
- 21 -

Thus, while it is true that "[t]here are many veins of 

circumstantial evidence that may be mined by a plaintiff" to show 

pretext, id., Dusel's excavations fail to surface any meaningful 

ore. We therefore conclude that there is no triable issue of fact 

as to whether "the defendant's proffered reason for its employment 

decision was not the real reason, but is a pretext for 

discrimination." Matthews, 686 N.E.2d at 1309. Accordingly, the 

district court did not err in granting summary judgment on the 

age-discrimination claim. Cf. Medina-Munoz v. R.J. Reynolds 

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) ("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."). 

3. The Retaliation Claim

Under Mass. Gen. Laws ch. 151B, § 4(4), it is illegal 

for an employer "to discharge, expel or otherwise discriminate 

against any person because he has opposed any practices forbidden 

under this chapter or because he has filed a complaint, testified 

or assisted in any proceeding under section five [of Mass. Gen. 

Laws ch. 151B]." The framework applicable to assessing retaliation 

claims is similar to that described earlier for the agediscrimination claim, "albeit with slight modifications." 

Mesnick, 950 F.2d at 827. "In the absence of direct evidence of 
- 22 -

a retaliatory motive, to make out a prima facie case of 

retaliation, the plaintiff must show that 'he engaged in protected 

conduct, that he suffered some adverse action, and that "a causal 

connection existed between the protected conduct and the adverse 

action."'" Psy-Ed Corp. v. Klein, 947 N.E.2d 520, 530 (Mass. 2011)

(quoting Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39 (Mass. 

2004)); see also Noviello v. City of Boston, 398 F.3d 76, 88 (1st 

Cir. 2005) ("To engage the gears of [§ 4(4)], a plaintiff must 

show that (i) []he undertook protected conduct, (ii) []he suffered 

an adverse employment action, and (iii) the two were causally 

linked."). As before, following the McDonnell Douglas framework, 

if the employee successfully makes a prima facie case, the burden 

of production then shifts to the employer to articulate a 

legitimate, nondiscriminatory reason for the adverse employment 

action, at which point the burden returns to the employee to prove 

that this rationale was pretextual. See Verdrager, 50 N.E.3d at 

800.

The district court dismissed Dusel's retaliation claim, 

holding that he failed to establish a causal link between any 

arguably protected conduct and the adverse employment actions 

taken against him. Dusel, 2021 WL 2953322, at *7-8. Even if

Dusel's apparent disagreement with the outcome of the 2015 

investigation (following Holland's first complaint about Casey's 

alleged harassment and other misconduct) constituted protected 
- 23 -

activity under § 4(4), the court determined, his mere 

participation in the 2018 investigation did not. Id. at *7. As 

such, the time elapsed between any plausibly protected activity 

and Dusel's eventual termination was too great -- and any inference 

of causality thus too attenuated -- for Dusel to make a successful 

prima facie case of retaliation, "especially when the intervening 

findings of misconduct are considered." Id. at *8.

On appeal, Dusel again contends that the district court 

erred in failing to identify disputed issues of material fact 

sufficient to defeat summary judgment. To this end, Dusel 

catalogues eight instances of putatively protected activity in the 

run-up to his 2018 termination, including initially informing his 

supervisors of Holland's concerns regarding Casey prior to her 

February 2018 complaint and each interview with HR pursuant to 

that investigation. Dusel also contends that his various 

pretermination complaints to FM Global, in which he alleged the 

company was retaliating against him (e.g., by relocating the HBM 

management team to FM Global's Rhode Island headquarters),

themselves qualify as opposition to practices forbidden under 

Massachusetts antidiscrimination statute. In each of these 

instances, Dusel claims that he has provided adequate evidence of

protected conduct -- with sufficient temporal proximity to his 

termination to permit an inference of retaliation -- such that the 

district court's grant of summary judgment was in error. 
- 24 -

We need not resolve the disputes regarding which of 

Dusel's actions and statements constitute protected activity under 

Massachusetts law because, even assuming that those questions were

to be resolved in his favor, we conclude that he has not met his 

burden at the subsequent stages of the McDonnell Douglas framework, 

wherein he must present evidence that would support a finding of 

a causal nexus between the protected conduct and his termination 

(to round out his prima facie case) and, subsequently, that FM 

Global's proffered legitimate, nondiscriminatory reasons for his 

termination were pretextual. See Psy-Ed Corp., 947 N.E.2d at 530; 

Verdrager, 50 N.E.3d at 800. In practice, these questions tend to 

blend into one another because, "for retaliation claims, [the] 

third element of [the] prima facie case and [the] third McDonnell 

Douglas stage are 'not easily distinguishable.'" Soto-Feliciano 

v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 32 (1st Cir. 2015) 

(quoting Wells v. Colo. Dep't of Transp., 325 F.3d 1205, 1218 (10th 

Cir. 2003)); see also id. (moving "directly to see whether 

[plaintiff] has raised a genuine issue of material fact that the 

defendants' stated grounds for firing him were in fact a pretext 

for retaliatory animus" because "[i]f he has met this showing, 

then he necessarily has met the lesser burden that he bears at the 

prima facie stage of showing a causal connection between his 

protected conduct and the decision to fire him"). As such, we 

assess whether Dusel can establish that FM Global's articulated 
- 25 -

rationale for the adverse employment actions was pretext masking 

a retaliatory animus.

For many of the same reasons we have rehearsed supra

regarding the age-discrimination claim, we hold that Dusel cannot

establish said pretext. As before, FM Global has proffered 

legitimate, nondiscriminatory reasons for Dusel's termination, 

viz., Dusel's violation of company policy vis-à-vis his use of the 

company's cell phone lines, his apparent attempts to conceal said 

behavior from FM Global investigators, and his after-hours visits 

to company facilities which led FM Global to conclude he had been 

engaging in food theft.7

In attempting to demonstrate causality and pretext, 

Dusel claims that the "close temporal proximity between events" 

and his "significant track record of positive 

7 While Dusel primarily focuses on his September 2018 

termination, he also contends that FM Global's March 2018 decision 

to relocate HBM's senior staff to Rhode Island and reorganize the 

company's reporting structure, his May 2018 performance review (in 

which he received a "Meets Expectations" rating), and FM Global's 

investigations in July and August 2018 of Dusel's potential 

misconduct also constitute retaliation. FM Global disputes that 

these actions can plausibly be considered retaliatory in nature, 

offering evidence that the investigations into Dusel's cell phone 

and the cafeteria use arose independently from an unrelated 

investigation and that the Rhode Island relocation and attendant 

managerial changes -- which impacted multiple members of HBM's 

management team, not Dusel alone -- were not punitive in nature, 

but intended to increase cohesion and oversight in light of FM 

Global's conclusion that Dusel could not manage his staff. By any 

measure, these, too, constitute legitimate and nondiscriminatory 

reasons for FM Global's actions.
- 26 -

performance . . . give an inference of causal connection from his 

protected activity to his termination." 

We are unpersuaded. While circumstantial evidence of 

temporal proximity between a protected activity and an adverse 

employment action can, in some cases, give rise to an inference 

that an employer's stated basis for the decision was pretext

masking for retaliatory animus, that evidence must be considered 

alongside the rest of the summary judgment record. See Psy-Ed 

Corp., 947 N.E.2d at 534 n.31 ("It is true that . . . [t]iming and 

sequencing of events may, depending on the facts of a case, be 

sufficient to raise an inference of causation, and although that 

inference may be overcome by the defendant's contrary evidence, it 

also may become the basis of the plaintiff's proof that retaliation 

was in fact determinative." (internal citations omitted)). 

Here, even if his apparent opposition to the conclusion 

of the 2015 investigation and alerting his superiors to Casey's 

complaints in February 2018 qualify as protected conduct, and even 

if (more dubiously) Dusel's informal complaints to FM Global 

management in April and June 2019 alleging retaliation themselves 

qualify as protected activities, we conclude that no reasonable 

juror on the facts of this case could infer that FM Global's stated 

basis for Dusel's termination was pretextual based on the time 

that elapsed between those events and his September 2018 

termination. For one thing, FM Global has produced evidence --
- 27 -

uncontradicted by Dusel -- showing that Dusel's alleged misconduct 

came to light as a result of a separate matter involving separate 

employees, and in closer proximity to Dusel's termination than 

Dusel's last claimed protected activity. For another, and as we 

have already explained in connection with his age discrimination 

claim, Dusel has not presented other evidence that would allow a 

reasonable factfinder to conclude that FM Global's proffered basis 

for his termination is "so implausible that [FM Global] more likely 

than not does not believe it." Wayfair, 27 F.4th at 80. We see 

"no reason to reach a different conclusion" as to the state of the 

record in connection with Dusel's retaliation claim, SotoFeliciano, 779 F.3d at 32, and he has provided none. 

In consequence, we are unable to see how temporal 

proximity alone would allow a reasonable juror to infer that FM 

Global's stated reason for firing Dusel was pretext for its 

retaliatory animus toward him. By the same token, we are also 

unpersuaded by Dusel's gesture toward his track record of positive

previous performance, as that evidence does not bear on FM Global's 

evidence as to its subsequent discovery of his misconduct -- which 

forms the basis of its legitimate, nondiscriminatory rationale for 

his termination. 

Thus, as with the age-discrimination claim, Dusel has 

not marshaled evidence evincing a genuine dispute of material fact 

as to whether FM Global's adverse employment actions were 
- 28 -

pretextual and retaliatory in nature. We therefore agree with the 

district court that "Dusel has not presented evidence from which 

a reasonable jury could infer that FM Global's articulated reasons 

for his discharge did not form the real basis for its employment 

decision." Dusel, 2021 WL 2953322, at *8. 

B. The District Court Did Not Err in Denying Dusel's Evidentiary 

Motions 

Dusel lastly claims that the district court erred in 

denying certain of his evidentiary motions. Specifically, he 

contests the denial of his motion to strike the affidavits of 

Robert Fitzpatrick, Erik Waal, and Kevin Ingram; his motion to 

strike certain paragraphs from FM Global's statement of undisputed 

material facts; and his motion to exclude certain after-acquired 

evidence. 

1. Standard of Review

We begin by emphasizing that we seldom disturb the 

district court's rulings on evidentiary issues. "Only rarely --

and in extraordinarily compelling circumstances -- will we, from 

the vista of a cold appellate record, reverse a district court's 

on-the-spot judgment concerning the relative weighing of probative 

value and unfair effect." Freeman, 865 F.2d at 1340. "We review 

challenges to a district court's discovery determinations under an 

abuse of discretion standard." Pina v. Child.'s Place, 740 F.3d 

785, 790 (1st Cir. 2014). "Accordingly, we 'will intervene in 
- 29 -

such matters only upon a clear showing of manifest injustice, that 

is, where the lower court's discovery order was plainly wrong and 

resulted in substantial prejudice to the aggrieved party.'" Id.

at 791 (quoting Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 860

(1st Cir. 2008)). "At every stage of the proceeding, the court 

must disregard all errors and defects that do not affect any 

party's substantial rights." Fed. R. Civ. P. 61; see also Tersigni 

v. Wyeth, 817 F.3d 364, 369 (1st Cir. 2016) ("We may affirm in 

spite of an erroneous evidentiary ruling if the error was harmless, 

meaning that 'it is highly probable that the error did not affect 

the outcome of the case.'" (quoting McDonough v. City of Quincy, 

452 F.3d 8, 19-20 (1st Cir. 2006))).

2. Motion to Strike Affidavit of Robert Fitzpatrick

FM Global proffered an affidavit of Robert Fitzpatrick, 

Information Security Specialist at FM Global, in support of its 

motion for summary judgment. In it, Fitzpatrick stated that after 

Dusel was terminated and pornographic materials were discovered 

within his paper files, FM Global asked him to conduct an "indepth review of the[] contents" of Dusel's computers, cell phones, 

and other storage devices. He stated that in his review of Dusel's

electronic devices, he found over 190,000 images and several 

thousand videos that were sexually explicit. He estimated that it 

would have taken at least a thousand hours to download said content 

and that it was the largest cache of such material that he had 
- 30 -

seen outside of his career in law enforcement. Dusel moved to 

strike said affidavit. The district court denied the motion to 

strike, holding that Fitzpatrick's affidavit did not contain 

expert opinions and that Fitzpatrick was disclosed in FM Global's 

discovery responses. 

Dusel argues that the district court abused its 

discretion by denying his motion to strike Fitzpatrick's affidavit 

for two reasons, which are substantially the same arguments that 

he advanced below. First, he argues that the affidavit contained 

expert opinions although Fitzpatrick was not disclosed as an

expert. According to Federal Rule of Evidence 701, opinion 

testimony by a lay witness must be limited to testimony that is 

"(a) rationally based on the witness's perception; (b) helpful to 

clearly understanding the witness's testimony or to determining a 

fact in issue; and (c) not based on scientific, technical, or other 

specialized knowledge within the scope of Rule 702." Dusel argues 

that Fitzpatrick's additional commentary on the cache of 

pornographic material -- specifically, the amount of time it would 

have taken to download and his comparison to what he saw during

his career in law enforcement -- veers into the realm of expert 

testimony. Second, Dusel argues that FM Global failed to disclose 

Fitzpatrick as a witness in its required initial disclosures under 

Federal Rule of Civil Procedure 26(a) and that FM Global is 
- 31 -

therefore barred from using his testimony in support of its summary 

judgment motion per Federal Rule of Civil Procedure 37(c). 

Even assuming arguendo that the Fitzpatrick affidavit 

contained unqualified expert opinion and that Fitzpatrick was not 

properly disclosed as a witness for the purposes of Rule 26(a), 

any such errors are harmless as neither the district court's 

holding nor our de novo review relies on Fitzpatrick's description 

of the sexually explicit material found on Dusel's computer or his

additional commentary. Instead, both rely on the other grounds 

for termination elucidated in the record which we have described 

in detail supra. "Our harmlessness inquiry is 

whether . . . admission of the evidence affected plaintiff's 

substantial rights. The central question is whether this court 

can say with fair assurance that the judgment was not substantially 

swayed by the error." Gay v. Stonebridge Life Ins. Co., 660 F.3d 

58, 62 (1st Cir. 2011) (quoting Rubert–Torres v. Hosp. San Pablo, 

Inc., 205 F.3d 472, 480 (1st Cir. 2000)). In this case, we can 

say with such assurance that neither the district court's judgment 

nor our de novo review was affected by any alleged error as neither 

court relied on the evidence that Dusel disputes. As a final 

point, we note that the affidavits of Erik Waal and Kevin Ingram, 

both of which were allowed into the summary judgment record and 

neither of which are sufficiently challenged on appeal as we hold 
- 32 -

infra, also discussed the sexually explicit material found on 

Dusel's computer that the Fitzpatrick affidavit discusses. 

3. Motion to Exclude Certain After-Acquired Evidence

Dusel's second evidentiary argument concerns the same 

cache of pornographic and sexually explicit materials described 

above. At the district court, Dusel moved to exclude this 

evidence, arguing that it was discovered after his termination and 

is therefore irrelevant and presented a risk of unfair prejudice. 

The district court rejected this argument, finding that the 

evidence qualified as after-acquired evidence which could be 

admitted to assess damages but not liability. 

On appeal, Dusel again argues that the evidence was 

irrelevant as it was discovered after he was terminated and 

therefore is not relevant to the reasons for his termination. He 

also argues that the district court improperly classified the 

evidence as after-acquired evidence. 

"Where an employer seeks to rely upon after-acquired 

evidence of wrongdoing, it must first establish that the wrongdoing 

was of such severity that the employee in fact would have been 

terminated on those grounds alone if the employer had known of it 

at the time of the discharge." McKennon v. Nashville Banner Publ'g

Co., 513 U.S. 352, 362-63 (1995). Such evidence, however, is not 

relevant to the employer's liability but is only admissible to 

determine damages, as certain remedies for improper termination 
- 33 -

may be limited based on after-acquired evidence. See NievesVillanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997). We 

agree with FM Global and the district court that, based on the 

facts of the instant case, the threshold showing of severity has 

been met. We see no abuse of discretion in the admission of the 

after-acquired evidence as its admission was not plainly wrong. 

Further, because no claims survive summary judgment and FM Global 

has voluntarily dismissed any counterclaims, there is no prejudice 

to Dusel as this case will not reach the damages portion of 

adjudication. 

4. Motion to Strike Affidavits of Erik Waal and Kevin Ingram; 

Motion to Strike Certain Paragraphs from FM Global's Statement of 

Undisputed Material Facts

Finally, Dusel argues that the district court erred in 

denying his motion to strike certain paragraphs from FM Global's

statement of undisputed material facts, and that it also erred in 

denying his motion to strike FM Global's affidavits of Erik Waal 

and Kevin Ingram. However, Dusel develops no real argument on 

either of these points. As to the statement of undisputed material 

facts, Dusel provides us with the rule for such statements, 

Massachusetts Local Rule 56.1, and states that the denial of his 

motion "flies in the face of the intention and spirit of 

[Massachusetts Local Rule] 56.1" and therefore was an abuse of 

discretion. But, he provides no relevant caselaw or other support 

for this argument. Therefore, we deem said argument waived. See
- 34 -

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."). 

So too goes Dusel's argument on appeal that the district 

court abused its discretion by denying his motion to strike the 

affidavits of Kevin Ingram and Erik Waal. Dusel again sets forth 

the standard, citing Federal Rule of Civil Procedure 56(c)(4) as 

applicable to affidavits at the summary judgment stage, and then 

proceeds to state that his motion to strike was "improperly denied" 

and that reversal is merited based on abuse of discretion. 

However, Dusel again fails to explain how the district court's 

denial was an abuse of discretion or provide any support for his 

conclusions. "It is not enough merely to mention a possible 

argument in the most skeletal way, leaving the court to do 

counsel's work, create the ossature for the argument, and put flesh 

on its bones." Id. Accordingly, we also consider this argument 

waived. 

III. Conclusion

The judgment of the district court is 

AFFIRMED.