VINCENT ANTHONY POLITO, JR. v. SHIRE PHARMACEUTICALS & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-172

VINCENT ANTHONY POLITO, JR.

vs.

SHIRE PHARMACEUTICALS & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Vincent Anthony Polito, Jr., appeals from

the entry of summary judgment in favor of his former employer,

Shire Pharmaceuticals (Shire), on his claims for wrongful

termination in violation of public policy, intentional

interference with advantageous business relations, and breach of

implied contract. On appeal, Polito contends that the judge

erred in allowing Shire's motion for summary judgment on his

wrongful termination claim. 2 We affirm.

1Shire Pharmaceuticals, LLC, Shire US Inc., Mark Broome,
Walter Mullikin, Jeffrey Rosenbaum, Christopher Allen, Jamie
Spaeth, Wes Graham, and Wil Tilton. None of the individual
defendants is part of this appeal.

2On appeal Polito does not address the claims for
intentional interference with advantageous business relations or
breach of implied contract. Rather, he contends that if he
prevails on his wrongful termination claim, he should likewise
prevail on the other claims, but if he is unsuccessful on the
Background. We summarize the relevant material facts from

the summary judgment record, viewed in the light most favorable

to Polito, the nonmoving party. See Juliano v. Simpson, 461

Mass. 527, 529 (2012).

On or about June 27, 2014, Shire hired Polito as a data

scientist. Polito was an at-will employee. In August 2014,

Polito began working on a project at Shire to achieve compliance

with the Drug Enforcement Agency's (DEA) suspicious order

monitoring (SOM) regulations for certain controlled substances

(SOM project). The SOM project involved developing a

"predictive modeling system" that would enable Shire to monitor

potentially suspicious prescription orders. The SOM project

consisted of two phases: phase one analyzed data related to

Shire's major distributors, and phase two analyzed data related

to its smaller distributors.

On November 18, 2014, Polito submitted drafts of a report

and presentation slides related to the SOM project to his

supervisor Walter Mullikin and the project's leader Wes Graham.

In his slides, Polito asserted that "Shire is not compliant"

with the DEA's data and information reporting expectations

wrongful termination claim, then the remaining claims fail as
well. We therefore do not consider them. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The
appellate court need not pass upon questions or issues not
argued in the brief").

2
related to potentially suspicious orders of controlled

substances. Mullikin and Graham revised the report to state

that "Shire is not fully compliant" with the DEA's expectations.

In April 2015, Polito visited a Shire distribution center

and encountered issues with the data that was used in the phase

one analysis. Polito submitted a summary of those data issues

(SOM allegations) to Mullikin and Graham in June of 2015. In

July 2015, Mullikin presented Polito's summary to the SOM

project steering committee. Following the presentation, the

steering committee decided to stop the SOM project, and Polito

subsequently resigned from the committee in August 2015. 3

By the fall of 2015, Mullikin had become concerned about

Polito's job performance. On November 6, 2015, Polito and

Mullikin met regarding Polito's performance. Shortly after,

Mullikin sent an e-mail message to Polito stating that Polito

had exhibited a "pattern of disengagement over the past several

months with a weak pipeline of projects," gave him a list of

action items, and requested that Polito provide weekly status

reports and meetings to discuss his progress. Polito responded

via e-mail message that he "disagree[d] with [Mullikin's] false

allegations and unsupported troubling statements," and accused

Mullikin of failing to support him after he raised his SOM

3 Shire eventually contracted with an external vendor for
services related to SOM compliance.

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allegations. Over the next few months, Mullikin "communicated

his concerns regarding Polito's job performance, attendance

issues, disengagement with his work, and insubordination" to

human resources professionals within Shire, who "coached

Mullikin on how to communicate with Polito."

In early January 2016, Shire's chief compliance officer,

Jeffrey Rosenbaum, asked to meet with Mullikin to discuss

Shire's internal data analytics capabilities. When Polito

informed Mullikin that he intended to discuss his SOM

allegations at the meeting, Mullikin told him that he did "not

want to go there." On January 13, 2016, Polito mentioned his

SOM allegations to Shire's head counsel, Christopher Allen. On

January 14, 2016, and again on January 19, 2016, Polito met with

Rosenbaum regarding his SOM allegations and his concerns about

his management team. Rosenbaum subsequently relayed Polito's

allegations and concerns to Allen, who commenced an

investigation.

As Shire began its investigation, Polito continued to have

issues with his managers and other employees at Shire. In

February 2016, Polito, Mullikin, and Mullikin's supervisor, Mark

Broome, had a telephonic meeting to discuss the "goals of the

business, IT and Enterprise Data Analytics for 2016." Mullikin

sent an e-mail message to Polito to schedule a follow-up meeting

to review Polito's performance objectives. Polito responded

4
that Mullikin's e-mail message had misrepresented the facts of

their meeting and that Mullikin was trying to "create a false

record so that [he could] develop a false narrative to terminate

[him]." Polito then requested that all future communications

with Mullikin and Broome be recorded or in writing. Mullikin

and Broome did not agree to his request to record meetings, and

thus their subsequent communications with Polito occurred via e-

mail. They did not have any meetings with him to discuss his

progress. In February 2016, Polito communicated with Jamie

Spaeth, a member of Shire's human resources department,

regarding sick time, working from home, and issues with his

management team, but he refused to speak with Spaeth on the

phone and "requested that all communications be over email." At

one point, Mullikin noted that Polito did not attend an

"important meeting" and that he "appeared to have blocked every

hour of every day since [February 29, 2016]" on his work

calendar to "mak[e] it appear that [he was] unavailable."

On February 26, 2016, Rosenbaum sent an e-mail message to

Polito and asked him to meet with Shire's lawyers as part of the

investigation into his SOM allegations and the "HR concerns."

Polito informed Allen that he was represented by counsel.

Beginning on March 9, 2016, Allen had numerous exchanges with

Polito's counsel to try to schedule an interview with Polito

regarding the SOM allegations and his concerns about his

5
management team. On April 8, 2016, Allen informed Polito's

counsel that Shire had decided to place Polito on a paid leave

of absence. Efforts to schedule an interview with Polito

continued in April and May of 2016. Polito's counsel "ignor[ed]

Allen's numerous attempts for an interview with Polito," did not

provide Shire with Polito's availability to interview, and

claimed that there was "no urgency" to the investigation. By

June 2016, Shire's outside counsel took over the effort to

schedule an interview with Polito. An interview was eventually

scheduled for July 28, 2016, but Polito's counsel canceled it

the day before it was scheduled to take place. 4 Subsequent

attempts to reschedule were unsuccessful, and on August 16,

2016, Polito's counsel was informed that Polito's employment

would be terminated if he did not sit for an interview on or

before September 2, 2016. Polito's counsel wrote back, claiming

that he was "away" and would be returning on September 5, 2016.

Meanwhile, on or about June 14, 2016, Kelly Boucher,

Shire's vice president and head of human resources, reviewed

documents related to Polito's job performance and his

interactions with his managers. Based on her review, she

decided to terminate Polito's employment. Shire did not

4 Polito's counsel advised that he had to cancel the meeting
due to his father's failing health. Shire's counsel expressed
his condolences and asked Polito's counsel to contact him to
discuss rescheduling the interview.

6
immediately execute that decision due to their ongoing efforts

to interview Polito about his SOM allegations and his issues

with his managers.

On August 24, 2016, Shire informed Polito by letter,

conveyed through counsel, that his employment was terminated due

to "the increasingly antagonistic and unprofessional nature of

Polito's communications and relationship with his managers that

created a non-productive work environment that could no longer

be tolerated" and his "refusal to appear for an interview" in

relation to Shire's investigation. That same day, Polito

attended an interview at the United States Attorney's office to

report his "public health concerns."

Discussion. We review a grant of summary judgment de novo

to determine whether, "viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to judgment as a

matter of law" (citation omitted). Casseus v. Eastern Bus Co.,

478 Mass. 786, 792 (2018). See Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002). See also Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991).

"As an exception to the general rule that an employer may

terminate an at-will employee at any time with or without cause,

we have recognized that an at-will employee has a cause of

action for wrongful termination only if the termination violates

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a clearly established public policy." Barbuto v. Advantage

Sales & Mktg., LLC, 477 Mass. 456, 471 (2017), quoting King v.

Driscoll, 418 Mass. 576, 582 (1994), S.C., 424 Mass. 1 (1996).

"[T]he public policy exception to at-will employment has been

recognized 'for asserting a legally guaranteed right (e.g.,

filing a worker's compensation claim), for doing what the law

requires (e.g., serving on a jury), or for refusing to do that

which the law forbids (e.g., committing perjury).'" Meehan v.

Medical Info. Tech., Inc., 488 Mass. 730, 733 (2021), quoting

Smith-Pfeffer v. Superintendent of the Walter E. Fernald State

Sch., 404 Mass. 145, 149-150 (1989). The law recognizes a

fourth category to the exception, for "performing important

public deeds, even though the law does not absolutely require

the performance of such a deed." Meehan, supra, quoting Flesner

v. Technical Communications Corp., 410 Mass. 805, 810-811

(1991).

To prevail on a claim for wrongful termination in violation

of public policy, an at-will employee must prove that he engaged

in conduct covered by a well-established public policy and that

his employment was terminated "for a reason contrary to a well-

established public policy." Shea v. Emmanuel College, 425 Mass.

761, 764 (1997). See Mello v. Stop & Shop Cos., 402 Mass. 555,

560-561 (1988). Where an employee relies on indirect or

circumstantial evidence of the causal connection between the

8
protected activity and the adverse employment action, he may

survive summary judgment using a three-part burden-shifting

framework similar to the one articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell

Douglas). 5 See Mole v. University of Mass., 442 Mass. 582, 591-

592 (2004). At the first stage, the plaintiff has the burden of

producing evidence "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'"

(citation omitted). Mole, supra. At the second stage, the

employer must articulate a nonretaliatory reason for the adverse

action. See id. at 591. If the employer meets this burden, the

plaintiff has the burden of proving that the articulated

nonretaliatory reasons were pretextual. See id.

The first stage can in some circumstances be satisfied by a

showing of close temporal proximity between the employee's

protected conduct and the employer's adverse employment action.

5 The framework is often utilized in evaluating retaliation
claims where the plaintiff lacks direct evidence of a wrongful
motive. See, e.g., Verdrager v. Mintz, Levin, Cohn, Ferris,
Glovsky, and Popeo, P.C., 474 Mass. 382, 406 (2016). Polito
does not have a retaliation claim at issue on appeal, but rather
a claim for wrongful termination in violation of public policy
relying on circumstantial evidence to establish a causal
connection between his alleged whistleblowing and his
termination. The parties agree that the framework articulated
in McDonnell Douglas and Mole, as applied by the motion judge,
is the proper test to use to determine whether Polito's claims
can survive summary judgment.

9
See Mole, 442 Mass. at 592-593. When "adverse action is taken

against a satisfactorily performing employee in the immediate

aftermath of the employer's becoming aware of the employee's

protected activity, an inference of causation is permissible."

Id. at 592. The adverse action, however, must "follow close on

the heels of protected activity" for a causal relationship to be

inferred, otherwise the plaintiff must rely on "additional

evidence beyond temporal proximity to establish causation"

(citation omitted). Id. at 595 (termination must be "very

closely connected in time to the protected activity" for

inference to survive [citation omitted]). See id. at 592,

quoting Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st

Cir. 1991), cert. denied, 504 U.S. 985 (1992) ("That an employer

knows of a discrimination claim and thereafter takes some

adverse action against the complaining employee does not, by

itself, establish causation. 'Were the rule otherwise, then a

disgruntled employee . . . could effectively inhibit a well-

deserved discharged by merely [engaging in protected

activity]'").

Polito argues that he satisfied his burden to establish a

"causal connection" because before raising his SOM allegations,

he was a "valued employee," and subsequent to his

whistleblowing, he "suffered immediate direct adverse actions"

that concluded with his termination. We are not persuaded.

10
At the first stage, Polito cannot satisfy his burden by

relying on the fact that his termination occurred after he

raised his SOM allegations. Polito's termination in August 2016

occurred over one year after he brought his SOM allegations to

Mullikin and over six months after he reported the SOM

allegations to Allen and Rosenbaum. Polito's termination was

not in the "immediate aftermath" of his whistleblowing and thus

a causal connection between the events cannot be established by

temporal proximity. Mole, 442 Mass. at 592. See id. at 595

("as the elapsed time between those two events becomes greater,

the inference weakens and eventually collapses"). See also Dube

v. Middlesex Corp., 59 Mass. App. Ct. 734, 741 n.3 (2003) ("one

event following another is not, by itself, sufficient evidence

of causality to establish a prima facie case of unlawful

retaliation, particularly where, as here, the two events are

separated by months, not days").

Polito also argues that he satisfied his burden because his

employment was terminated "a few hours after [he] whistleblew"

to the United States Attorney's office. There is no evidence in

the record that Shire was aware of when Polito intended to bring

his SOM allegations to the United States government. Moreover,

Polito does not dispute that the decision to terminate Polito,

while not executed until August 24, 2016, was made at least one

month before he went to the United States Attorney's office.

11
Indeed, Polito does not dispute that Boucher made the decision

to terminate Polito in June 2016. Further, it is undisputed

that "Shire did not immediately execute Boucher's decision to

terminate Polito's employment because Shire still wanted to

interview Polito about his allegations regarding Shire's SOM

program and his HR issues." See Mole, 442 Mass. at 594

("Where . . . adverse employment actions or other problems with

an employee predate any knowledge that the employee has engaged

in protected activity, it is not permissible to draw the

inference that subsequent adverse actions . . . are motivated by

retaliation"). 6

Polito thus did not provide any evidence sufficient to

create a genuine factual dispute whether the "adverse actions"

he experienced were because of his whistleblowing. See Shea,

425 Mass. at 763-764 ("An assertion or speculation that the

[employer] discharged [the employee] for that reason is not

sufficient to create a genuine dispute of material fact

concerning the reason for [his] discharge"). On the other hand,

there is ample evidence that Shire terminated Polito for

6 We note that Shire spent more than six months trying to
schedule this interview with Polito's counsel, but was
unsuccessful due to delays and refusals on the part of Polito
and his counsel. Shire terminated Polito on August 24, 2016,
only after his counsel rejected a clear ultimatum that Polito
would be terminated if he did not appear for an interview by
September 2, 2016.

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nonretaliatory reasons and not for his whistleblowing. Boucher

provided Shire's reasons for Polito's termination in the letter

that was also provided to his counsel:

"In April you were placed on a paid leave of absence as a
result of the increasingly antagonistic and unprofessional
nature of your communications and relationship with your
managers that created a non-productive work environment
that could no longer be tolerated. That environment
ultimately mandated the termination of your employment.

"In addition . . . [Shire] tried on numerous occasions to
schedule an interview with you regarding certain issues you
had raised. Despite the fact you remained an employee of
[Shire], you have not submitted to the requested
interview."

The record demonstrates that between October 2015 -- months

after Polito first raised his SOM allegations -- and his

termination in August 2016, Polito had attendance issues; was

absent from an "important meeting"; dismissed his supervisor's

concerns about his job performance and did not provide

substantive performance objectives; blocked off "every hour" of

his calendar to make it appear that he was unavailable; refused

to speak with his managers or other Shire employees over the

phone when they declined to be recorded; was unprofessional in

his e-mail messages and communications with his managers and

other Shire employees; and was uncooperative with Shire's

attempts to interview him and address his SOM allegations and

concerns about his managers. On this record, Polito cannot show

that Shire terminated him because of his alleged whistleblowing.

13
See Shea, 425 Mass. at 763-764. Given the series of issues with

Polito's performance and professionalism, Polito's claim thus

fails a matter of law for lack of adequate proof of causation.

See Mello, 402 Mass. at 558, 561 (employee failed to prove that

employer would not have discharged him but for conduct protected

by public policy). Accordingly, we discern no error in the

allowance of summary judgment.

Judgment affirmed.

By the Court (Massing,
Neyman & Wood, JJ. 7),

Clerk

Entered: July 7, 2025.

7 The panelists are listed in order of seniority.

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