HOWARD, Circuit Judge.
After Thomas Locke, a U.S. Airways mechanic at Logan International Airport, was discovered pilfering company property, he entered into a "Last Chance Agreement" with U.S. 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 U.S. 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.
In August 2009, U.S. Airways received phone calls reporting ongoing theft from its aircraft and identifying Locke as the culprit. Michael Bashar, U.S. Airways' station director at Logan Airport, responded by enlisting the assistance of the Massachusetts State Police. The State Police conducted surveillance outside the U.S. 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 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 U.S. Airways
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 U.S. Airways. Following these instructions from MassPort, Locke filed a badge application the next day, October 15, with a U.S. Airways signature on the application form.
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 encounter with the State Police and his admission of theft, and concluded:
Meanwhile, on the advice of Conarroe, Locke also applied for a comparable mechanic position with U.S. 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,
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.
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 "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.
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., 433 Mass. 465, 744 N.E.2d 622, 629 (2001); see also Fortune v. Nat'l Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251, 1257 (1977).
Locke advances two distinct theories as to how U.S. 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.
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 U.S. 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.
Locke correctly points out that the Agreement did not expressly state a deadline for him to obtain his badge. Nevertheless, such a deadline is plainly implied from the following paragraph of the Agreement:
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 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.
Locke's contention that Bashar foiled the issuance of his security badge and
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 U.S. Airways.
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:
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:
Bashar spoke to U.S. 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 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 U.S. Airways had made a decision to support Locke's application. Nor did Bashar's correspondence suggest that U.S. Airways opposed badge issuance; in fact, Bashar reported that U.S. Airways was "okay with returning Tom Locke's airport badge back to him."
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 U.S. 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.
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 U.S. 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 U.S. 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 U.S. 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
Locke alternatively avers that U.S. Airways breached the Agreement by preventing his transfer to Philadelphia International Airport, where Locke obtained a comparable mechanic position with U.S. 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) 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.
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 former position," not his transfer to a new position. Furthermore, if U.S. 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
We briefly address the potpourri of additional issues alluded to in Locke's brief. Locke contends that U.S. 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 U.S. Airways' decisionmaking or that the airline's stated basis for terminating Locke (failure to obtain a security badge) was somehow pretextual.
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 U.S. Airways hangar area on any occasions other than September 18, 2009," from which Locke infers that "Massport simply relied on U.S. 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).
For the foregoing reasons, we
To be sure, MassPort does not appear to have understood at all times that U.S. Airways supported Locke's application. As we have set forth above, after Bashar responded that U.S. 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 U.S. Airways opposed badge issuance. Concannon also recollected a change of position by U.S. 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 U.S. 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").
