Filed: Aug. 20, 2014
Latest Update: Mar. 02, 2020
Summary: As we have, set forth above, after Bashar responded that US Airways was okay, with returning Locke's badge, Lane replied, This sudden change in, position is extremely disturbing suggesting, of course, that, MassPort officials previously thought that US Airways opposed badge, issuance.
United States Court of Appeals
For the First Circuit
No. 13-2330
THOMAS LOCKE,
Plaintiff, Appellant,
v.
US AIRWAYS, INC.,
Defendant Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Christopher J. Trombetta for appellant.
Christopher J. Campbell, with whom Jackson Lewis P.C. was on
brief, for appellee.
August 20, 2014
HOWARD, Circuit Judge. After Thomas Locke, a US Airways
mechanic at Logan International Airport, was discovered pilfering
company property, he entered into a "Last Chance Agreement" with US
Airways. Locke's "last chance" at continued employment failed to
materialize, however, after Logan Airport authorities denied his
application for renewal of his security badge. Locke now appeals
the district court's grant of summary judgment on his claim that US
Airways breached the Last Chance Agreement by influencing the
airport's decision to deny his badge and by preventing him from
transferring to Philadelphia International Airport. Finding no
triable basis for these contentions in the record, we affirm.
I.
In August 2009, US Airways received phone calls reporting
ongoing theft from its aircraft and identifying Locke as the
culprit. Michael Bashar, US Airways' station director at Logan
Airport, responded by enlisting the assistance of the Massachusetts
State Police. The State Police conducted surveillance outside the
US Airways hangar, and on September 18, 2009, observed Locke
exiting the hangar while carrying a large trash bag and a cooler.
Two officers stopped Locke in the parking lot, and Locke agreed to
accompany them to the police barracks. After reading Locke his
Miranda rights, the police interviewed him and searched the cooler
and trash bag, finding sodas, beers, sandwiches, soap, toilet
paper, and several other items taken from aircraft. Locke admitted
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to filching the items. The officers released Locke but retained
his security badge, which granted him access to secure areas of
Logan Airport.
Later that evening, Locke called his supervisor, Robert
Andrews, and informed him that the State Police had caught him
taking items from aircraft and had confiscated his security badge.
The following Monday, September 21, Andrews told his supervisor,
Nelson Conarroe (the Regional Director of Technical Operations),
about the incident, and suspended Locke pending further
investigation.
The airline had little time to investigate, however.
Under the terms of a collective bargaining agreement between US
Airways and the International Association of Machinists, US Airways
was obligated to make a disciplinary decision within five days of
the underlying incident -- in other words, by September 23. With
this deadline looming, US Airways entered into a "Last Chance
Agreement" (the "Agreement") with Locke on September 23 "[i]n lieu
of termination and in order to provide [Locke] a final opportunity
to demonstrate his ability to comply with Company policies and
procedures." The Agreement provided for Locke's return to work on
October 16, 2009, but stated that "reinstatement [was] contingent
upon completion of any pre-employment steps required by law,
Company policy, or the terms of this Agreement, including, if
applicable, a security screening." The Agreement also empowered US
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Airways to convene a meeting with Locke to determine whether he had
violated its terms; any such determination would be "final and
binding with respect to whether [Locke] violated the terms of this
Agreement, and the imposition of discipline, up to and including
termination."
In order to return to work at Logan, Locke needed a
security badge. Locke testified that he sought to reobtain his
original badge from the State Police as early as September 21, on
which date Andrews told Locke that he would go to the police
barracks and pick up the badge. After Andrews apparently met with
no success, Locke himself went to the office of the badging
authority, MassPort, on October 14. Locke was informed that his
badge had been lost and that he would need to reapply for a new
badge by filling out an application and obtaining a signature from
US Airways. Following these instructions from MassPort, Locke
filed a badge application the next day, October 15, with a US
Airways signature on the application form.1
On November 3, Major Michael Concannon, MassPort's
Director of Aviation Security, issued a letter informing Locke that
his badge application had been denied and explaining the basis for
the denial. The letter recited the details of Locke's September 18
1
Although the application form itself was not placed in the
record, and although the parties did not address this fact in their
briefs, deposition testimony suggested that a "denied" notation was
placed on Locke's application on or around October 16.
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encounter with the State Police and his admission of theft, and
concluded:
Holding a Security Badge for Boston-
Logan International Airport is a privilege,
and the security of the Airport depends in
large part on the Authority being able to
trust that Security Badge holders will
faithfully discharge the security
responsibilities that attend that privilege.
Your admission that you have been conducting
an ongoing criminal enterprise at the Airport
vitiates that trust and renders you unfit to
hold a security badge for Boston-Logan
International Airport.
Meanwhile, on the advice of Conarroe, Locke also applied
for a comparable mechanic position with US Airways at Philadelphia
International Airport. Locke received this position on November 5.
However, although Conarroe promised Locke that he would receive a
security badge at Philadelphia International, Locke never in fact
obtained such a badge and never began work in Philadelphia.
On November 10, Locke met with Andrews, a union
representative, and (via telephone) Conarroe to discuss whether
Locke had complied with the terms of the Agreement. Conarroe
inquired whether Locke had obtained a security badge, and when
Locke admitted that he had not, Conarroe provided him until the end
of the week (November 13) to do so. On November 13, Conarroe sent
Locke a letter stating that he had violated the terms of the
Agreement and terminating his employment forthwith. Conarroe's
letter explained:
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Under the terms of the Agreement you were
required to return to work on October 16,
2009. The Agreement also provided that your
reinstatement was contingent upon completion
of any pre-employment steps required by law,
Company policy, or the terms of this
agreement, including a security screening.
You failed to obtain the required BOS Airport
Identification Badge and failed to return to
work on October 16, 2009.
Thereafter, Locke filed this suit, alleging breach of
contract, breach of the implied covenant of good faith and fair
dealing, and wrongful termination. US Airways moved for, and the
district court granted, summary judgment on all three counts.2
This appeal followed.
II.
On appeal, Locke challenges the district court's grant of
summary judgment only as to his claims for breach of contract and
breach of the implied covenant of good faith and fair dealing; he
does not press his wrongful termination claim. We review the
district court's summary judgment order de novo; "[i]n so doing, we
draw all reasonable inferences in favor of the non-moving party
while ignoring conclusory allegations, improbable inferences, and
unsupported speculation." Alicea v. Machete Music, 744 F.3d 773,
778 (1st Cir. 2014) (internal quotation marks and alterations
omitted). To withstand summary judgment, Locke must therefore
2
The court first rejected US Airways' argument that Locke's
state-law claims were preempted by the Railway Labor Act, 45 U.S.C.
§ 151 et seq. US Airways does not press that argument before us.
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"present definite, competent evidence" in support of his claims;
"bald assertions, empty conclusions, rank conjecture, or vitriolic
invective" will not suffice. Pina v. Children's Place, 740 F.3d
785, 795-96 (1st Cir. 2014) (internal quotation marks omitted).
Proceeding in reverse order, we first address Locke's claim for
breach of the implied covenant of good faith and fair dealing.
A. Good Faith and Fair Dealing
The district court made quick work of Locke's good faith
and fair dealing claim, recognizing that although Massachusetts law
implies a covenant of good faith and fair dealing in every
contract, in the employment context this doctrine provides merely
that "an employer is accountable to a discharged employee for
unpaid compensation if the employee were terminated in bad faith
and the compensation is clearly connected to work already
performed." Harrison v. NetCentric Corp., 744 N.E.2d 622, 629
(Mass. 2001); see also Fortune v. Nat'l Cash Register Co.,
364
N.E.2d 1251, 1257 (Mass. 1977).3 Because Locke nowhere alleged a
failure to compensate him for work he had already performed, the
district court found this claim baseless. On appeal, Locke mounts
no meaningful challenge to this conclusion, and our own review of
Locke's complaint reveals no basis for this claim. We accordingly
affirm the district court's grant of summary judgment as to Locke's
3
Although the Agreement specified that it was to be governed
by Arizona law, the parties have proceeded under Massachusetts law.
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claim for breach of the implied duty of good faith and fair
dealing.
B. Breach of Contract
Locke advances two distinct theories as to how US Airways
breached the Agreement, arguing that the airline 1) interfered with
his application for a security badge at Logan Airport and 2)
precluded him from transferring to an airport in Philadelphia,
where Locke avers that he could have easily gained security
clearance. We address each theory in its turn.
1. Badge Application
The November 13 letter from Nelson Conarroe terminated
Locke for failing to obtain a security badge and for failing to
return to work on October 16, the date specified in the Agreement.
Locke primarily argues that his inability to obtain a badge was due
to wrongful interference from Bashar, the station director, placing
US Airways in breach of the Agreement. Initially, however, Locke
raises the broader contention that the Agreement did not require
him to obtain a badge by any particular date and therefore
furnished no ground for his termination on November 13. We address
each issue separately.
a. Deadline to Obtain Badge
Locke correctly points out that the Agreement did not
expressly state a deadline for him to obtain his badge.
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Nevertheless, such a deadline is plainly implied from the following
paragraph of the Agreement:
Concurrent with Employee's
reinstatement to his former position,
Employee's personnel file will reflect a
disciplinary suspension without pay from Sept
19, 2009 through employees [sic] return to
work, October 16, 2009. Employee and the
Union understand and agree that reinstatement
is contingent upon completion of any pre-
employment steps required by law, Company
policy, or the terms of this Agreement,
including, if applicable, a security
screening.
Locke implores us to read these adjacent sentences in hermetic
isolation, arguing that the time period in the first sentence
"refers only to the length of the suspension and not the date by
when any pre-employment steps must be completed" and that the
second sentence in turn "does not indicate that the steps must be
completed by a particular date." This is too strained a reading.
The first sentence specifies October 16 as the date of Locke's
"return to work"; the second sentence renders reinstatement
conditional upon completion of a security screening and other pre-
employment steps. The only reasonable inference is that these
steps had to be completed by the date of reinstatement, i.e.,
October 16.
A cursory review of the Agreement's backdrop compels the
same conclusion. See generally McAdams v. Mass. Mut. Life Ins.
Co., 391 F.3d 287, 299 (1st Cir. 2004) (under Massachusetts law,
"agreements should be construed with reference to the situation of
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the parties when they made it and to the objects sought to be
accomplished" (internal quotation marks omitted)). The undisputed
testimony of Robert Andrews, Locke's supervisor, established that
the badge was necessary for Locke to access the secure areas where
he worked. Indeed, Locke himself testified that his reinstatement
was contingent upon obtaining a security badge. Because a security
badge was a sine qua non of Locke's return to work both under the
language of the Agreement and under airport security policies, the
Agreement is properly construed as requiring Locke to obtain a
badge by October 16, the date of his return.
b. Bashar's Interference
Locke's contention that Bashar foiled the issuance of his
security badge and thereby placed US Airways in breach of the
Agreement warrants a somewhat lengthier analysis. At the outset,
we note that Locke identifies no specific provision of the
Agreement violated by Bashar's alleged interference. Nevertheless,
we accept the underlying premise that if US Airways prevented Locke
from obtaining his security badge, US Airways could not then
terminate Locke for failing to obtain a badge. See Lobosco v.
Donovan, 565 N.E.2d 819, 821 (Mass. App. Ct. 1991) ("[A] promisor
may not avoid his promised performance based on the nonoccurrence
of a condition, where the promisor has himself hindered or
prevented its occurrence."); see also Rigs v. Sokol, 61 N.E.2d 538,
542 (Mass. 1945); Restatement (Second) of Contracts § 245 & cmt. a,
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illus. 1 (1981). In other words, US Airways could not circumvent
its obligations under the Agreement simply by making a badge
unattainable and thereby preventing Locke from fulfilling a
condition of his reinstatement.
That said, the record evidence is insufficient for a
reasonable jury to conclude that the badge denial was in fact
attributable to Bashar and, by extension, to US Airways.4 Although
Locke points to evidence showing that Bashar personally opposed his
badge application, he fails to establish a triable issue on whether
MassPort ultimately denied his badge application for that reason
rather than because of independent security concerns.
Locke's claim rests primarily on an email exchange
between Bashar and MassPort security officials a few days prior to
the November 3 badge denial. On the evening of October 30, Bashar
received the following email from Captain Richard Lane of the State
Police:
The Major received a phone call from
LtCol Smith, MSP Field Services, inquiring why
we (MSP) will mt [sic] give Mr. Locke his
"badge back" since he has served his "two week
suspension" and "US Air wants Mr Locke back at
work." . . . LtCol Smith still insists that
Major Concannon send him an email on Monday
morning on whether or not "we are going to
give Mr Locke his badge back."
4
In light of our ultimate conclusion that Bashar had no
influence on MassPort's decision, we do not address the potentially
vexing question of whether the challenged actions of Bashar, a US
Airways employee, were properly attributable to US Airways and
therefore placed the company in breach of the Agreement.
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I need to know if USAir's position has
changed on this issue. If it has not, then
the Aviation Security Director's [i.e.,
Concannon's] position will remain unchanged.
Bashar replied late the following evening that "USAirways is okay
with returning Tom Locke's airport badge back to him." Roughly ten
minutes later, Lane sent the following reply, copying Concannon and
others on the email:
This sudden change in position is
extremely disturbing. However, if USAir wants
Tom Locke to have a SIDA badge he must re-
apply with USAir as the sponsor. The process
does not allow a badge to simply be re-issued
in this matter. Locke was removed from the
system because he was arrested for offenses
committed on Massport property over a
significant amount of time.
His badge was taken because the
Aviation Security Director has concerns that
someone who would commit such crimes could
also be compromised on security.
When and if Locke's application for a
SIDA badge is filed it will be processed
accordingly.
Bashar then replied approximately an hour later:
I do not support the decision to return Tom
Locke's badge. I was informed by USAirways
labor relations department responsible for the
maintenance department that once a decision
was make [sic] I did not have the authority to
prevent him from getting a SIDA badge.
If you could hold off processing his
badge until I have a chance to talk to our
legal department on Monday I would appreciate.
Bashar spoke to US Airways' labor relations department the next day
(Monday, November 2) and was told that it was "okay for [Locke] to
come back"; Bashar then passed this information along to Lane on
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the same day. Concannon issued the letter denying Locke's badge
application on the following day, November 3.
Locke places great weight on Bashar's statement in the
final email that he "[did] not support the decision to return Tom
Locke's badge" and on Bashar's accompanying request that the badge
processing be held off. In his brief, he further claims that
"[t]he Massachusetts State Police had indicated that Mr. Bashar's
direction would mandate that a badge would not be issued" and that
Concannon "acknowledged that Mr. Bashar's opposition . . . had been
a 'cause' of the non-issuance of the badge."
These latter allegations are unsupported in the record,
however, leaving Locke unable to establish a causal nexus between
Bashar's email and MassPort's decision to deny his badge
application. Although the record provides some tepid support for
the proposition that US Airways' position was germane to the
badging decision, there is no indication that Bashar's
personal view had any bearing. Indeed, Bashar himself stated in
the allegedly impugning email that he "did not have the authority
to prevent [Locke] from getting a SIDA badge" once US Airways had
made a decision to support Locke's application. Nor did Bashar's
correspondence suggest that US Airways opposed badge issuance; in
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fact, Bashar reported that US Airways was "okay with returning Tom
Locke's airport badge back to him."5
Concannon's deposition testimony, upon which Locke also
relies, undermines rather than supports Locke's case. Concannon
initially testified that at the time he signed the letter denying
Locke's badge application, his "memory [was] that U.S. Air was
still discussing internally what its position was, and . . . its
5
At oral argument, Locke suggested that the very fact that
Lane emailed Bashar to inquire whether "USAir's position ha[d]
changed" indicates that Bashar's response was germane to MassPort's
decision. That inference is sensible, but Locke again fails to
distinguish between the airline's position and Bashar's own
opinion. Bashar answered Lane's question unequivocally in his
first email, indicating that the airline was "okay" with returning
Locke's badge. The dissenting personal view voiced in Bashar's
second email did not bear on the topic of Lane's inquiry, to wit,
"USAir's position" on badge issuance.
To be sure, MassPort does not appear to have understood at all
times that US Airways supported Locke's application. As we have
set forth above, after Bashar responded that US Airways was "okay"
with returning Locke's badge, Lane replied, "This sudden change in
position is extremely disturbing" -- suggesting, of course, that
MassPort officials previously thought that US Airways opposed badge
issuance. Concannon also recollected a change of position by US
Airways on sponsorship: "I do recall some information that U.S.
Airways would not be sponsoring Mr. Locke, and at some point, I
think there was a change of heart and then perhaps even another one
after that." Similarly, Lieutenant Anthony Bille, also of the
Massachusetts State Police, testified that although he "wasn't
privy to [US Airways'] internal discussions," he "kn[e]w there was
some sort of conflict" within the company regarding Locke's badge
application. But Locke proffers no theory as to why US Airways was
initially perceived as opposing badge issuance, nor does the record
support anything more than speculation on this question. This
ambiguity, while perplexing, therefore does not suffice to defeat
summary judgment. Nor are we in any event convinced that
MassPort's initial understanding of the airline's position was
relevant to its ultimate decision, as Bashar's email made clear
that the airline did support Locke's application (hence the "sudden
change in position").
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position may have had some impact on [his] decision, but [he] did
not make a decision solely based on what U.S. Air would or wouldn't
do." He then clarified:
Mostly I would say if there was no sponsoring
company, the point would be moot, and I
wouldn't even have to make a decision because
they were still discussing internally what
their position was and whether they would
actually sponsor Mr. Locke to get his badge
back. I made a decision based on security.
Concannon further explained that "the Aviation Security Director's
position" alluded to in Lane's first email was that Concannon "was
not in favor of giving Mr. Locke his badge back at that point";
that even if US Airways consistently supported Locke's badge
application, that would not have required Concannon to issue a
badge; and that the badging decision was based on Concannon's
"independent judgment as to whether or not [Locke was] a security
risk" and on his "consulting with MassPort personnel" on this
question.6 Presented with the email chain between Bashar and
MassPort, Concannon stated that "[t]he implication of Mike Bashar's
email to Rich Lane on November 1st [was] that U.S. Airways would
have been okay with Tom Locke getting a badge back" and that except
for Bashar's "personal opinion," nothing in the email chain
indicated opposition to the badge from US Airways. Concannon
6
Lieutenant Bille echoed Concannon's testimony on this
point, stating that US Airways "had minimal effect" on the badging
decision by MassPort and the State Police, and that the decision
was "independent of the airway's or vendor's view on the matter
. . . [b]ecause security [was] of the essence."
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further testified that Locke's October 15 badge application, signed
by the Badge Coordinator for US Airways, indicated that the airline
was sponsoring Locke's application.
This evidence lends no support to Locke's theory that the
denial of his badge was traceable to any malign meddling of Bashar.
Bashar's emails clearly distinguished US Airways' institutional
support for Locke's application from his contrary personal opinion,
which he acknowledged could not prevent badge issuance. And
although Concannon initially suggested that US Airways' position
"may have had some impact" on his decisionmaking, he proceeded to
explain that the airline would primarily impact his decision if it
declined to sponsor Locke, such that "the point would be moot, and
[he] wouldn't even have to make a decision." That was not the case
here. Locke submitted an application signed by US Airways' Badge
Coordinator, and Bashar's emails informed MassPort that the airline
supported Locke's application despite Bashar's own dissenting view.
Moreover, after asking MassPort to "hold off processing [Locke's]
badge" while he spoke to the legal department, Bashar followed up
with MassPort the very next day, informing Lane that the labor
relations department had told him that it was "okay for [Locke] to
come back." Therefore, the summary judgment record reveals no
contradiction to Concannon's testimony that he ultimately "made a
decision based on security" that Locke might exploit at trial.
Locke's contrary belief that Bashar orchestrated the denial of his
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application ultimately amounts to no more than that -- an
unsupported belief that need not be credited at summary judgment.
See Alicea, 744 F.3d at 778.7
2. Philadelphia Transfer
Locke alternatively avers that US Airways breached the
Agreement by preventing his transfer to Philadelphia International
Airport, where Locke obtained a comparable mechanic position with
US Airways. More specifically, Locke contends that the Agreement
"did not mandate that [he] needed to work at Logan" and that by
terminating Locke after he had obtained the Philadelphia position,
the airline breached its contractual obligation to reinstate Locke
"upon completion of any pre-employment steps."
Once again, however, Locke's theory lacks an adequate
foundation in the record. The apposite evidence comprises only 1)
7
Locke also cites his own testimony that Andrews informed
him on October 14 that Bashar was "wrongfully and without reason
. . . holding [his] badge back" and that Conarroe told him in late
October that Bashar had been preventing the issuance of the
security badge at Logan. Even assuming arguendo that these
statements are admissible nonhearsay under Fed. R. Evid.
801(d)(2)(D) (statements of an opposing party's employees), they
are in themselves "bald assertions [and] empty conclusions" that
need not be credited at summary judgment. Pina, 740 F.3d at 795
(internal quotation marks omitted). Locke only offered Andrews's
and Conarroe's conclusory remarks that Bashar was preventing the
issuance of a badge, with no explanation of how Bashar did so.
Indeed, Locke conceded that his "only basis . . . for saying that
Mr. Bashar was preventing [him] from getting the badge was Bob
Andrews telling [him] that Bashar was preventing it." Nor did
Andrews or Conarroe themselves offer any corroborating testimony on
this point. Without further context and detail, these statements
raise no genuine factual questions precluding summary judgment.
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Locke's testimony in an affidavit that he applied for and received
the position on the advice of Conarroe, who promised that he would
receive a security badge in Philadelphia; and 2) general testimony
of Matthew Ellis-Drackett, a badging officer at Philadelphia
International, concerning that airport's security badging
procedures. Although Locke suggests that he would have received a
security badge at Philadelphia International, he nowhere indicates
that he actually obtained such a badge.8 Nor does he argue that
this failure to obtain a badge was somehow the fault of US Airways,
as he claims was the case at Logan Airport. With no evidence,
then, that Locke completed the vital "pre-employment step" of
obtaining a security badge at Philadelphia International, Locke's
argument that US Airways was contractually obligated to reinstate
him in Philadelphia is a nonstarter.
More fundamentally, even if Locke had obtained a security
clearance in Philadelphia, the Agreement itself furnishes no basis
for Locke's claim that he was entitled to transfer to another
airport. The Agreement spoke of Locke's "reinstatement to his
8
Even Locke's contention that he would have received a badge
in Philadelphia lacks a sufficient basis in the record, resting on
little more than "unsupported speculation." Alicea, 744 F.3d at
778. In discussing badging procedures, Ellis-Drackett did not
address the particular facts of Locke's case, only the airport's
general practices. And although Locke testified that Conarroe
promised him that he would receive a badge in Philadelphia, there
is no indication that Conarroe had any influence on the badging
decision in Philadelphia; on the contrary, Ellis-Drackett testified
that Conarroe was "not an authorized signer" for US Airways badge
applicants at Philadelphia International.
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former position," not his transfer to a new position. Furthermore,
if US Airways believed that Locke had failed to comply with the
Agreement's terms, the Director of Maintenance (i.e., Conarroe) was
empowered to conduct a meeting with Locke to determine whether the
Agreement had been violated. Conarroe's ultimate determination was
to be "final and binding with respect to whether [Locke] violated
the terms of th[e] Agreement." Conarroe held such a meeting with
Locke on November 10, and thereafter terminated Locke for
"fail[ing] to obtain the required BOS Airport Identification
Badge." That determination is conclusive under the terms of the
Agreement, regardless of whether Locke personally believes that a
transfer to Philadelphia would also have satisfied the Agreement.
C. Miscellany
We briefly address the potpourri of additional issues
alluded to in Locke's brief. Locke contends that US Airways
decided to terminate him in response to allegedly "defamatory" news
articles "indicat[ing] that Mr. Locke's behavior made Logan unsafe
. . . [and] that his acts suggested that terrorist activities could
occur at the airport." Other than the articles themselves,
however, Locke cites no evidence indicating that the news coverage
in any way influenced US Airways' decisionmaking or that the
airline's stated basis for terminating Locke (failure to obtain a
security badge) was somehow pretextual.
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Locke's statement of facts also contains a number of
quasi-argumentative assertions, alleging, for instance, that "[t]he
removal of items from the hangar by Mr. Locke . . . stems from a
practice approved by the airline for more than twenty-five years";
that the State Police failed to investigate "whether Mr. Locke had
removed articles from the US Airways hangar area on any occasions
other than September 18, 2009," from which Locke infers that
"Massport simply relied on US Airways request that Mr. Locke not
receive a security badge"; and that the State Police "always issue
badges to employees whose airline employers support their
issuance." Locke fails, however, to meaningfully develop these
allegations in the argumentative section of his brief. They are,
accordingly, waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
III.
For the foregoing reasons, we affirm the district court's
order granting US Airways' motion for summary judgment.
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