Salvatore Mirabella, Jr. v. Town of Lexington, Massachusetts; Mark Corr, Former Chief of Police

United States Court of Appeals
For the First Circuit
No. 22-1153
SALVATORE MIRABELLA, JR.,
Plaintiff, Appellant,
v.
TOWN OF LEXINGTON, MASSACHUSETTS; MARK CORR, FORMER CHIEF OF
POLICE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Lipez, Circuit Judges.
Ronald W. Dunbar, Jr., with whom Dunbar Law P.C. was on brief,
for appellant.
Gareth W. Notis, with whom Francesca L. Cone and Morrison
Mahoney LLP were on brief, for appellees.
April 4, 2023

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SELYA, Circuit Judge. This appeal arises out of a suit
filed by plaintiff-appellant Salvatore Mirabella, Jr., a former
police officer, against the town of Lexington, Massachusetts (the
Town) and its retired chief of police, Mark Corr. Mirabella
contends that the defendants denied him due process in the
termination proceedings that ended his affiliation with the Town's
police department and that they intentionally interfered with his
efforts to gain employment elsewhere. The district court entered
summary judgment for the defendants on all of Mirabella's claims.
See Mirabella v. Town of Lexington, No. 19-12439, 2022 WL 464188,
at *1 (D. Mass. Feb. 15, 2022). It is from this order that
Mirabella now appeals.
We need not tarry. "We have explained before that when
a 'trial court correctly takes the measure of a case and authors
a convincing decision, it rarely will serve any useful purpose for
a reviewing court to wax longiloquent' merely to hear its own words
resonate." Potvin v. Speedway LLC, 891 F.3d 410, 414 (1st Cir.
2018) (quoting Eaton v. Penn-Am. Ins. Co., 626 F.3d 113, 114 (1st
Cir. 2010)); accord Seaco Ins. Co. v. Davis-Irish, 300 F.3d 84, 86
(1st Cir. 2002); Ayala v. Union de Tronquistas de P.R., 74 F.3d
344, 345 (1st Cir. 1996). This is such a case. Consequently, we
affirm the judgment below for substantially the reasons explicated
in the district court's cogent rescript, adding only two comments
directed to Judge Lipez's dissenting opinion.

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First. Our dissenting colleague maintains that the
summary judgment record reveals a genuine dispute of material fact
as to whether the reason stated by the Bentley Police Department
(BPD) for refusing to hire Mirabella was pretextual. In a
nutshell, our dissenting colleague insists that a reasonable jury
could find that BPD did not deny Mirabella employment because he
prevented BPD investigators from completing a required component
of their background check (as BPD has stated) but, rather, denied
him employment because BPD wanted no part of him after it learned
that he was a "union agitator." See post at 14. And because Corr
was the person who told BPD of these union proclivities, the
dissent's thesis runs, a reasonable jury also could find that
Corr's comments harmed Mirabella's employment prospects. For
these reasons, our dissenting colleague concludes that there is a
triable issue of fact regarding Mirabella's claim of intentional
interference with advantageous relations (IIAR). This "pretext"
issue is doubly waived: it was neither advanced by Mirabella in
the district court nor meaningfully developed by him in his
briefing in this court. See McCoy v. Mass. Inst. of Tech., 950
F.2d 13, 22 (1st Cir. 1991) (explaining that "theories not raised
squarely in the district court cannot be surfaced for the first
time on appeal"); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (explaining that "issues adverted to in a perfunctory

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manner [on appeal], unaccompanied by some effort at developed
argumentation, are deemed waived").
Our dissenting colleague suggests that there was no
waiver because the relevant components of the argument can be found
at various points throughout Mirabella's opening brief (and
throughout his presentations in the district court). See post at
11 n.3. This suggestion is unpersuasive. Appellate adjudication
is not a scavenger hunt, and a party cannot rely upon an appellate
court to rummage through the record and weave isolated facts into
a coherent theory. See Zannino, 895 F.2d at 17. For purposes of
preservation, it is not sufficient that either Mirabella's brief
or the district court record (or both, for that matter) contain
scattered references to the facts from which our dissenting
colleague has cobbled together the "pretext" theory that he now
introduces. To hold otherwise would be to flout both the "bedrock
principle that appellate arguments must be presented face-up and
squarely," Moses v. Mele, 711 F.3d 213, 217 (1st Cir. 2013), and
the corollary principle that arguments made in the district court
must be presented in an equally forthright manner, see Iverson v.
City of Boston, 452 F.3d 94, 102 (1st Cir. 2006).
The short of it is that Mirabella himself has made no
effort to explain — either below or on appeal — how his rendition
of the factual record demonstrates a basis for believing that BPD's
stated reason for not hiring him was pretextual. It follows that

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he has doubly waived the issue, and we respectfully decline our
dissenting colleague's implicit invitation that we do his work for
him.
Second. In all events, Mirabella has not shown that the
summary judgment record contains "definite, competent evidence,"
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), from
which a reasonable jury could find that BPD's stated reason for
denying him employment was pretextual. The only competent evidence
directly addressing BPD's decision not to hire Mirabella is the
department's statement documenting the fact that Mirabella's "lack
of cooperation" had prevented investigators from "completing a
full home visit." In light of the incomplete home visit, BPD
concluded that Mirabella "ha[d] disqualified himself from further
consideration" for employment. That conclusion was relayed to
Mirabella in an email, in which BPD informed Mirabella of its
decision to "discontinue[]" the background investigation.
Faced with this uncontroverted evidence, our dissenting
colleague points to the fact that, during the course of BPD's
background check, Corr told a BPD investigator that Mirabella had
expressed an intent to "stir things up" were he to be hired by
BPD. Our dissenting colleague then suggests — without citation to
any record evidence — that a series of inferences can be drawn:
that BPD would have been generally reluctant to hire someone who
had expressed a desire to engage in union activities; that BPD

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thus determined that it was not going to hire Mirabella; that
because BPD did not want to openly admit its real reason, it needed
to make up a facially plausible alternative story; and that such
a story line dropped into its lap when — weeks later — Mirabella
refused to allow BPD investigators full access to his home. See
post at 14-15. Simply describing this tortured chain of reasoning
vividly illustrates that it stacks "inference upon inference" in
a way that fails to show a genuine issue of material fact. Gomez
v. Stop & Shop Supermarket Co., 670 F.3d 395, 398 (1st Cir. 2012).
That reasoning relies more on speculation and surmise than on
plausible parallel inferences drawn from competent evidence. And
it is an uncontroversial proposition that "conjecture cannot take
the place of proof in the summary judgment calculus." Bennett v.
Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007); see Zingg v.
Groblewski, 907 F.3d 630, 634 (1st Cir. 2018) (explaining that
"improbable inferences[] and unsupported speculation" cannot
"establish a genuine dispute of fact" sufficient to withstand
summary judgment motion (quoting Ocasio-Hernández v. Fortuño-
Burset, 777 F.3d 1, 4 (1st Cir. 2015))). Although "we must draw
all reasonable inferences in [Mirabella's] favor at the summary
judgment stage," Alston v. International Association of
Firefighters, Local 950, 998 F.3d 11, 31 (1st Cir. 2021), we are
not required to draw "unreasonable" inferences, Cabán Hernández v.

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Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (emphasis
in original).
We need go no further. We affirm the judgment below for
essentially the reasons elucidated in the district court's
rescript.
Affirmed.
—Dissenting Opinion Follows—

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LIPEZ, Circuit Judge, dissenting. Like my colleagues,
I believe that the district court correctly granted summary
judgment on most of the claims asserted by Salvatore Mirabella,
Jr. in this case. We part ways only regarding Mirabella's
contention that Mark Corr, the former Chief of Police for the Town
of Lexington, intentionally interfered with Mirabella's ability to
gain employment with the Bentley Police Department ("BPD").
Indeed, the dispute here concerns only one of the four
elements of that claim. To prove that Corr intentionally
interfered with his job application to BPD, Mirabella must
establish, among other elements, that he "was harmed by [Corr's]
actions."1 Katz v. Belveron Real Est. Partners, LLC, 28 F.4th 300,
313 (1st Cir. 2022). The district court determined that Mirabella
could not survive Corr's motion for summary judgment based solely
on this element of the tort, and my colleagues uphold the court's
determination that Mirabella has not generated a genuine dispute
1 In Massachusetts, a plaintiff can succeed on a claim of
intentional interference with advantageous business relations if:
1) he or she has a contractual or advantageous
relationship with another, 2) the defendant knowingly
induced a breach of that contract or relationship, 3)
the defendant's interference, in addition to being
intentional, was improper in "motive" or "means" and 4)
the plaintiff was harmed by the defendant's actions.
Katz v. Belveron Real Est. Partners, LLC, 28 F.4th 300, 313 (1st
Cir. 2022); see Blackstone v. Cashman, 860 N.E.2d 7, 12-13 (Mass.
2007).

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of material fact on the issue of whether Corr "harmed" Mirabella's
employment prospects with BPD. The majority, however, fails to
acknowledge the ample evidence in the record that supports
Mirabella's argument.
In reviewing a grant of summary judgment, we ask if there
is a genuine dispute of material fact for a jury to consider. See
Lahens v. AT&T Mobility P.R., Inc., 28 F.4th 325, 333 (1st Cir.
2022). A genuine issue of material fact exists when a reasonable
jury, presented with competing facts, could resolve the issue in
favor of the non-moving party. See Zingg v. Groblewski, 907 F.3d
630, 634 (1st Cir. 2018). Thus, a non-movant can successfully
overcome a summary judgment motion by "present[ing] definite,
competent evidence" establishing a factual dispute. Murray v.
Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).
In this case, Mirabella's allegations rely heavily on
circumstantial evidence concerning the impact of Corr's conduct on
Mirabella's employment prospects. But the "circumstantial" label
in no way circumscribes the force of Mirabella's evidence. Indeed,
trial courts routinely instruct juries about the types of evidence
they can consider in resolving a factual dispute. Here is a
familiar instruction:
"Direct evidence" is direct proof of a fact,
such as testimony by a witness about what the
witness said or heard or did. "Circumstantial
evidence" is proof of one or more facts from

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which you could find another fact. You should
consider both kinds of evidence.
3 Fed. Jury Prac. & Instr. § 101:42 (6th ed. Supp. Feb. 2023).
Critically, jury instructions routinely emphasize that "[t]he law
makes no distinction between the weight to be given to either
direct or circumstantial evidence." Id. That is, direct evidence
is no more valuable than circumstantial evidence. The trial judge
will often supplement the above by guiding the jury on the
permissible use of circumstantial evidence:
[A]ny inference on which you rely in reaching
your decision must meet two requirements.
First, you may draw the inference for a
conclusion only from facts that have been
proved to you. Second, any inference that you
use must be reasonable and natural, based on
your common sense and experience in life.
General Instructions, Massachusetts Superior Court Civil Practice
Jury Instructions, Vol. I-1.
Respectfully, I suggest that my colleagues have failed
to appreciate how a reasonable jury could consider and credit the
circumstantial evidence Mirabella offers to support his
intentional interference claim. Indeed, Mirabella's assertion of
pretext would be compelling if the jurors believed his explanation
for BPD's incomplete home visit -- a credibility determination
that is for them to make, not us.2 To emphasize the majority's
2 To assist jurors in their factfinding role, trial judges
typically will instruct them on how to evaluate a witness's
credibility:

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error, I offer a closing argument that Mirabella's attorney might
make to the jury on the causation prong of his intentional
interference claim against Corr, drawing solely on facts in the
record.3
You may believe everything a witness says,
part of it, or none of it. In considering the
testimony of any witness, you may take into
account many factors, including the witness'
opportunity and ability to see or hear or know
the things the witness testified about; the
quality of the witness' memory; . . . other
evidence that may have contradicted the
witness' testimony; and the reasonableness of
the witness' testimony in light of all the
evidence.
3 Fed. Jury Prac. & Instr. § 101:43.
3 My colleagues assert that Mirabella has waived his argument
that BPD's stated reason for not hiring him was pretextual and
that Corr's comments provide the true reason behind BPD's decision.
While I acknowledge that Mirabella did not develop his position as
fully as he could have, a fair reading of the record demonstrates
that the pretext claim was adequately raised in both the district
court and on appeal.
In his deposition, which is part of the summary judgment
record, Mirabella testified that BPD's stated reason for not hiring
him -- his refusal to allow BPD officers to undertake a home visit
-- was fabricated. He stated that, in fact, he told the officers
he could not complete the visit that day because his children were
home. Mirabella claimed that BPD, using the incomplete home visit
as a pretext, did not hire him because Corr had told BPD officers
Mirabella was a union sympathizer and so would be disruptive. The
district court understood that Mirabella was making a pretext
claim. In rejecting that claim, the court stated: "[a]lthough
Plaintiff proffers that he did not comply [with the home visit]
because his children were present in his home at the time, this
does not change the fact that BPD's own stated reason for not
hiring him was his own lack of cooperation." Mirabella v. Town of
Lexington, No. 19-CV-12439-ADB, 2022 WL 464188, at *10 (D. Mass.
Feb. 15, 2022).

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***
Members of the jury. The question before
you today is whether Chief Corr's comments to
BPD officers about my client's union
sympathies harmed my client's employment
prospects. Corr would have you believe that
BPD's written report on Mirabella's job
application resolves this question simply
because it states that Mirabella was
disqualified for refusing to cooperate with a
home visit to check that his firearms were
safely stored. But this statement is only one
side of the argument.
My client insists that BPD's stated
reason for not hiring him is a pretext. The
real reason, he says, was Corr's disclosure to
BPD officers that Mirabella would "stir things
up" if hired because of his union experience.
We have presented ample evidence from which
you can, and should, conclude that BPD's
stated reason was indeed a pretext. Do not
fall into the trap of doubting Mirabella and
the reasonable inferences you draw from the
evidence simply because of BPD's report.
Remember, the judge has instructed you that
these reasonable inferences are every bit as
good as the document from BPD.
Consider the following:
1. My client testified that he explained
to the officers why he could not complete the
home visit when they appeared, without advance
notice, at his door. His children were home
Mirabella reprised his pretext argument on appeal. In his
brief, he contends that BPD's stated reason for not hiring him is
false, outlines his own competing account of the home visit, and
argues that Corr's "fabricat[ed] stories about Mirabella's desire
to unionize [BPD]" are, in fact, the "real reason" for BPD's
decision. See Appellant Br. at 22-23. Mirabella's allegation of
pretext was sufficiently stated for the district court to
understand his claim, and it is likewise sufficiently stated in
his appellate brief to deserve consideration on the merits.

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from school and he did not want them to see
either his guns or the location of his guns.
So why does BPD make no reference to
Mirabella's explanation in its report on the
background investigation and home visit? Why
does BPD's report instead give a wholly
different account of the home visit,
attributing words to my client that he denies
ever saying? BPD's report states that
Mirabella refused to let officers inspect the
second floor of his home, telling them "you're
not going up there . . . that's just how I
operate. . . . If this costs me the job, so be
it." Mirabella says he never said anything of
the sort. Think about it for a moment. Do
those statements sound like something a job
applicant would say after going through the
trouble of trying to secure a job? We have
two competing narratives here, and it is your
role to determine which one is true.
If you do not believe the testimony of my
client then his case is over. It is as simple
as that. But you have heard the judge tell
you how to evaluate the credibility of witness
testimony. If you apply those instructions,
I suggest that you will conclude that
Mirabella's account is both credible and
perfectly reasonable. Who among you would not
want to shield your children from firearms?
And if you believe Mirabella, you are entitled
to draw the inference that BPD had a reason
for not wanting to acknowledge Mirabella's
reasonable explanation for not completing the
home visit.
2. The question for you then becomes what
is that reason -- why would BPD not
acknowledge Mirabella's explanation, but
instead create a false narrative of the home
visit to justify not hiring him, otherwise
known as a pretext? There is compelling
circumstantial evidence to answer that
question. Consider how events unfolded with
respect to Mirabella's application to BPD.

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On February 6, 2018, two BPD officers
visited the Lexington Police Department to
speak with Corr about Mirabella's application.
During this conversation, Corr indisputably
made a damaging disclosure about Mirabella's
union sympathies. Corr testified that he
spoke with a BPD background officer about
Mirabella's union activities, telling the
officer that "[Mirabella] was going to use his
union experience to go [to BPD] and improve
the contract and improve all the benefits, and
he was going to stir things up a bit." This
comment cannot be viewed as anything but
damaging to Mirabella's candidacy -- who would
want to hire a troublemaker? Corr himself
even recognized that he was making a sensitive
disclosure at the time he made it. He
volunteered the information about Mirabella's
union activities only after inquiring into the
BPD officers' union status and asking the
unionized officer to leave the room.
Critically, the sensitivity with which
Corr treated his disclosure about Mirabella's
union troublemaking reflects an indisputable
inference grounded in experience and common
sense -- police departments are cautious about
union-related activity and are careful about
how they handle union members. As you know
from your own life experiences, union activity
can be a divisive issue in workplaces and
unions can cause headaches for employers. So
ask yourselves: would BPD want to state on
Mirabella's background investigation report
that they chose not to hire him because of his
union activity? Surely not.
By the end of the conversation with Corr,
then, BPD had a problem: officers had heard
that Mirabella was a union agitator, they did
not want to hire him because of this
information, but they could not reveal that
they rejected his candidacy on that basis.
They needed a pretext. And they got one a
month later when they visited Mirabella at
home.

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3. On March 8, 2018, two BPD officers
attempted to complete a visit of Mirabella's
home to inspect his firearms. As you know,
Mirabella says he did not want them to
complete the inspection because his children
were home. BPD's inability to complete the
home visit therefore became lucky for them.
They attributed to Mirabella implausible
statements about why he would not allow the
inspection, and the incomplete inspection
provided BPD with a reason to reject
Mirabella's candidacy without mentioning his
union activities.
In summary, putting all of this together,
we have credible evidence in Mirabella's
testimony, along with reasonable inferences,
that lead to one common-sense conclusion:
BPD's stated reason for not hiring Mirabella
was a pretext, and the real reason was Corr's
indisputably damaging disclosure about
Mirabella's union activities. Therefore, you
should find that Corr's statements harmed my
client's employment prospects with BPD.
***
Could the jury reject this argument? Sure. I am not
suggesting that Mirabella's position is necessarily more
persuasive than the competing evidence offered by Corr. But it is
important to recognize that there is competing evidence, and it is
a jury's role to resolve the material factual dispute this evidence
generates. In disregarding the circumstantial evidence supporting
Mirabella's pretext claim, my colleagues in fact draw inferences
in favor of the moving party, Corr, by taking BPD's stated reason
for not hiring Mirabella at face value. They are wrong to do so.
Because the majority opinion disregards a genuine issue of material

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fact and the role of juries in resolving such a dispute, I
respectfully dissent.

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