          United States Court of Appeals
                     For the First Circuit

No. 13-1428

                          DAVID PIERCE,

                      Plaintiff, Appellant,

                               v.

    COTUIT FIRE DISTRICT; BOARD OF FIRE COMMISSIONERS OF THE
 COTUIT FIRE DISTRICT; DONALD CAMPBELL, Fire Commissioner of the
 Cotuit Fire Department, RONALD MYCOCK, Fire Commissioner of the
  Cotuit Fire Department; PETER FIELD, Fire Commissioner of the
      Cotuit Fire Department; CHRISTOPHER OLSEN, Fire Chief,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
                Stahl and Howard, Circuit Judges.


     Harold Lichten, with whom Sara Smolik and Lichten & Liss-
Riordan, P.C. were on brief, for appellant.
     Marielise Kelly, with whom Edward R. Gargiulo and Gargiulo/
Rudnick, LLP were on brief, for appellees Cotuit Fire District,
Board of Fire Commissioners of the Cotuit Fire District, Donald
Campbell, Ronald Mycock and Peter Field, Fire Commissioners of the
Cotuit Fire Department, and Christopher Olsen, Fire Chief.


                        January 28, 2014
             HOWARD, Circuit Judge. Plaintiff-appellant David Pierce,

former    Captain    of    the   Cotuit,      Massachusetts        Fire       Department,

brought a complaint against the Department, the Fire Chief, and the

Board of Fire Commissioners, alleging political discrimination in

violation     of    the     First     Amendment      and     42    U.S.C.       §   1983,

whistleblowing      retaliation       in     violation       of   the    Massachusetts

Whistleblower Act, and tortious interference with contractual

relations. The district court entered summary judgment in favor of

the defendants on all counts.                    Because we conclude that the

defendants have presented legitimate, business-related grounds for

their    employment       decisions    and    because      Pierce       has    failed   to

demonstrate that the proffered explanations are pretextual, we

affirm.

                                      I.   Facts

             The    Cotuit    Fire     Department       is    a   relatively        small

operation.     In rough order of seniority, the Department has five

"call" firefighters, six full-time firefighters, three Lieutenants,

one Captain, and one Fire Chief.                   The Department also has a

three-member Board of Fire Commissioners ("the Board"), which is in

charge of overseeing, appointing, and terminating personnel.                            At

the time of the relevant events, the Captain of the Cotuit Fire

Department was David Pierce.            Since March of 2008, the Fire Chief

has been defendant Christopher Olsen.               Until November of 2009, the

Fire Commissioners were defendants Donald Campbell, Ronald Mycock,


                                           -2-
and Peter Field.      In November, Donald Campbell resigned and was

replaced by Brenda Nailor.

                 A.   Inter-Departmental Relationships

          In the decades leading up to the fall of 2009, the Cotuit

Fire Department was the home of some fairly complicated personal

histories.   As Captain of the Department, Pierce served directly

over his wife, Jayne Pierce, who was a full-time firefighter

through the majority of their relationship.    Prior to his marriage

to Jayne, Pierce had been married to Donna Pierce (now Donna

Fenner), who had been a call firefighter at the time, but had

subsequently joined the Department as a full-time firefighter and

married fellow firefighter Scott Fenner. Fenner's own ex-wife, Amy

Griffin Fenner, is also a call firefighter.      There was testimony

that this pattern of intra-departmental relationships made the

Cotuit Fire Department the subject of mockery among neighboring

departments, frequently to the consternation of the Department's

own employees.    Since the 1990s, firefighters and officers in the

department had discussed implementing a stricter policy regarding

domestic relationships, though no early discussions materialized

into a new policy.

          Following their marriage, David and Jayne Pierce were

never scheduled to work the same regular 24-hour shift.    They did,

however, work together with some regularity when they responded to

emergency calls or when one of them volunteered to substitute for


                                  -3-
an unavailable firefighter on the other's regular shift.                   During

these times, Pierce directly supervised his wife.                   In March 2008,

Pierce wrote the Massachusetts State Ethics Commission ("Ethics

Commission") to request an advisory opinion regarding any potential

conflict of interest arising out of his professional relationship

with Jayne.    On March 31, 2008, the Ethics Commission advised him

that the state ethics law, Mass. Gen. Laws ch. 268A, § 19,

prohibited    him    from   participating    in   his    wife's      supervision,

performance     evaluations,     or    promotions,      or     in    setting   her

compensation.       The Commission recommended that he write the Board

of Fire Commissioners to disclose the situation and obtain a formal

exemption, but Pierce chose not to pursue the matter.

             Following his communication with the Ethics Commission,

Pierce became directly involved in his wife's employment on at

least three occasions.        First, in the fall of 2008, Pierce advised

Chief Olsen against imposing a probationary period on the tenure of

new Lieutenants at a time when Jayne was about to become a

Lieutenant.     Second, Pierce advised Olsen that a new Emergency

Medical Services position should go to a trained paramedic when

Jayne was the only trained paramedic in the Department.                  Finally,

in April of 2009, Pierce assisted in a disciplinary investigation

involving     Jayne's       verbal    altercation       with    a      subordinate

firefighter.     Although Pierce had a right to recuse himself and

although Jayne specifically requested that he do so, Pierce chose


                                       -4-
to participate after Olsen indicated that he desired Pierce's input

in the hearing. Pierce recommended that Jayne receive a counseling

session as punishment. However, Olsen ultimately decided to demote

Jayne from Lieutenant to firefighter.

             In March of 2009, roughly a year after his appointment as

Fire Chief and just before Jayne's disciplinary investigation,

Olsen    circulated   a   new   "Familial     Relations    Policy"     for    the

Department.     Among other things, the policy forbade officers from

working regular shifts with or directly supervising their family

members.    After the policy was circulated, Pierce and Jayne sought

legal    counsel   regarding    the   policy's      repercussions    for   their

careers.

             In August of 2009, in response to Jayne's objections to

her     demotion   from   Lieutenant,       Olsen    initiated      efforts   to

investigate an allegedly "hostile environment" in the Cotuit Fire

Department.     Five full-time firefighters submitted complaints of

harassment or intimidation by the Pierces when they were on duty.

                          B.    The Wool Campaign

             In April 2009, Donald Campbell's seat on the Board came

up for re-election.        Campbell originally ran for re-election

unopposed.      Concerned about a potential conflict of interest

created by Campbell's status as an active union firefighter,

however, Pierce actively encouraged William Wool to enter the race

as a write-in candidate.


                                      -5-
          At Pierce's request, Commissioner Mycock agreed to meet

with Wool to discuss Wool's interest in serving on the Board.

Mycock did not discourage Wool from running and, while he did not

take a position on Wool's candidacy, he agreed that Campbell's

union ties created a conflict of interest.     Mycock's concerns were

echoed by Commissioner Field, although Field did not take a public

position on Wool's campaign either.      Mycock did have Olsen advise

Pierce not to campaign for Wool while on duty or to use Department

resources in his campaigning. Pierce complied with both requests.

          Throughout the month of May, Pierce campaigned for Wool

by handing out flyers, talking to acquaintances about the election,

and displaying a campaign sign for Wool on election day.      On one

occasion, Pierce was off-duty and campaigning for Wool outside the

town Post Office when Olsen drove by and indicated that he wanted

Pierce's assistance at an emergency call.      Reporting to emergency

calls is voluntary for off-duty firefighters, and Pierce declined

Olsen's request.     The next day, Olsen told Pierce that he wished

that Pierce had responded to the call.      Olsen also mentioned that

he was "concerned" about "losing Campbell" as a Commissioner during

the upcoming election.

          Campbell    ultimately   won   reelection.   Following   the

election, according to Pierce's testimony, Olsen told Pierce that

he was "not happy" that Pierce had campaigned for Wool. Olsen also

opined that it was "inappropriate" for Pierce to have campaigned


                                   -6-
outside the fire station on a separate occasion.      Campbell stopped

by Pierce's office during the same period, ostensibly to assure

Pierce that he had no hard feelings, but he ultimately expressed

disappointment and frustration with Pierce over his support for

Wool.

                C.   Retaliation and Ethics Complaints

            On October 2, 2009, four months following his campaigning

activity, Pierce sent a letter to the Board claiming that Olsen had

been retaliating against him ever since the election due to his

support of Wool.     Pierce cited a variety of forms of harassment

starting in the weeks following the election.         He reported that

Olsen had reneged on his promise to make Pierce "Deputy Chief,"

taken   away    Pierce's    office      and   made   him   return   his

Department-issued cell phone, called Pierce and his wife "greedy"

for volunteering for overtime, and publicly lashed out at Pierce

and two other firefighters for failing to prepare for a memorial

ceremony.    While Olsen did not respond to Pierce's charges at the

time, he later contended that he needed to re-purpose Pierce's

office into new sleeping quarters due to space constraints and that

it would be more efficient to turn Pierce's work cellphone into a

department-wide phone for on-duty officers.

            The Board replied to Pierce with a letter indicating that

his complaint did not conform to the grievance process prescribed

by the Department's collective bargaining agreement and took no


                                  -7-
further actions on his charges. Because Pierce's letter criticized

Olsen's treatment of both Pierce and his wife, however, the Board

did take the occasion to remind Pierce of his obligations under the

Massachusetts ethics laws and to suggest that Pierce contact the

Ethics     Commission   for    an     advisory     opinion     regarding     his

professional relationship with Jayne.

            On November 20, 2009, the Board sent its own letter to

the Ethics Commission to request that the Commission conduct an

evaluation of Pierce's potential conflict of interest, copying

Pierce on the communication.            Among other things, the letter

informed    the   Commission   that    Pierce     had   "regular     supervisory

authority over and day to day supervision of his wife," and that

Pierce had participated in a disciplinary matter involving Jayne in

April.     The letter was signed by Mycock and Field, but not by

Campbell, who had resigned the previous day.                 While the Ethics

Commission considered the Board's letter, Pierce wrote the Board to

request a formal exemption under Mass. Gen. Laws ch. 268A, § 19 for

his and Jayne's joint employment in the Department.                  The letter

estimated    that   Pierce    supervised    his    wife   on   ten    to   twelve

occasions per year. The Board declined to take up Pierce's request

while it awaited a response from the Ethics Commission.

            On June 17, 2010, the Ethics Commission sent Pierce a

confidential letter informing him that he appeared to be in

violation of Mass. Gen. Laws ch. 268A, § 19.                   To remedy the


                                      -8-
situation, the Commission suggested that Pierce should obtain an

exemption, restructure his position so as to have no day-to-day

supervision of Jayne, or either he or Jayne could resign.    On June

24, 2010, Pierce replied to the Ethics Commission to clarify that

he did not have "day-to-day active supervision" of his wife.     In

the same letter, on which Olsen was copied, Pierce suggested that

the Board had refused to grant him an exemption in retaliation for

certain unrelated claims that he and Jayne were pursuing against

the Town of Cotuit.   The Board responded directly to the Ethics

Commission, again raising the issue of Pierce's supervision of

Jayne and his involvement in her discipline and promotion.

           On June 18, 2010, presumably without knowledge of the

letter Pierce had received from the Ethics Commission the previous

day, Olsen notified Pierce of his intent to suspend him with pay.

Olsen attributed his decision to an independent conclusion reached

by the Board's counsel that Pierce was violating the state ethics

law.   He instituted the suspension following a hearing later that

month.   Subsequently, Olsen and the Board became aware of the

Commission's June 17, 2010 letter.    On November 29, 2010, after a

hearing at which the letter was discussed, Olsen suspended Pierce

without pay.   Olsen again explained that his disciplinary action

responded to Pierce's violations of Mass. Gen. Laws ch. 268A.

           On January 11, 2011, the Commission sent Pierce a final

confidential letter, informing him that the Commission had found


                                -9-
"facts sufficient to find reasonable cause to believe" that Pierce

was violating the ethics law.                 Two weeks later, the Commission

responded directly to the Board regarding its November 20, 2009

complaint against Pierce. While noting that its "decision does not

necessarily mean that your complaint was without merit," the

Commission determined that the matter "does not warrant further

investigation or the imposition of formal sanctions at this time."

             On April 20, 2011, despite the Commission's failure to

impose sanctions, the Board chose to terminate Pierce's employment.

                    D.    Administrative and Legal Actions

             On December 3, 2010, Pierce initiated this action against

the   Cotuit   Fire       Department,    the    Board,     and   Chief    Olsen    and

Commissioners Campbell, Mycock, and Field in their individual

capacities. Pierce sued the Department and the Board for political

discrimination       in    violation     of    the     First   Amendment    and   for

retaliation in violation of the Massachusetts Whistleblower Act.

He    sued   Olsen,       Campbell,     Mycock,      and   Field    for    political

discrimination and retaliation in violation of 42 U.S.C. § 1983 and

for tortious interference with contractual relations in violation

of the common law.

             That    same    day,   Pierce      also    initiated   a     "step   one"

grievance against Olsen regarding his suspension without pay under

the Cotuit Fire Department's Collective Bargaining Agreement.                      On




                                         -10-
December    19,   2010,       Pierce   submitted      a   "step   two"    grievance

regarding the same matter.

            On    May    8,   2011,    less    than   a   month   after    Pierce's

termination, the Board entered into a settlement agreement with the

firefighter's union that permitted Pierce to return to work as a

full-time firefighter, while restricting Pierce's ability to work

on any shift with his wife.             The union consequently withdrew a

scheduled   arbitration         regarding     Pierce's     grievances.       Pierce

objected to the settlement, but eventually returned to work as a

firefighter.

            After the defendants moved for summary judgment, the

district court entered judgment in their favor on all claims.

Pierce now appeals.

                                 II.   Discussion

            We review a district court's grant of summary judgment de

novo, construing the record in the light most favorable to the non-

moving party and resolving all reasonable inferences in that

party's favor.          Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.

2008).   We cannot affirm if the record is sufficiently open-ended

to permit a rational factfinder to resolve a material factual

dispute in favor of either side.               Id. at 40; Maymí v. P.R. Ports

Auth., 515 F.3d 20, 25 (1st Cir. 2008).               Inversely, we must affirm

if the record reveals no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law.                   Vineberg v.


                                        -11-
Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008); Fed. R. Civ. P.

56(c).   We are not limited to the district court's rationale, but

may affirm on any grounds made manifest by the record.            Jones v.

Secord, 684 F.3d 1, 5 (1st Cir. 2012).

                      A.   First Amendment Retaliation

           Pierce claims that Olsen and the Board's decisions to

suspend and ultimately terminate him as Captain, as well as Olsen's

pattern of hostile conduct in the summer of 2009, constitute

retaliation     for    his    political    support   for   Wool   as     Fire

Commissioner.

           It is well established that political discrimination by

a state employer, including retaliation for a contrary political

opinion, violates the freedom of belief and association protected

by the First Amendment. See Padilla-Garcia v. Guillermo Rodriguez,

212 F.3d 69, 74 (1st Cir. 2000).              As a core constitutional

violation, employment retaliation for protected political and

expressive activity also creates individual liability under 42

U.S.C. § 1983, subject to the rules of qualified immunity.             Powell

v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004).              To qualify for

relief under the First Amendment or under § 1983, an employee's

claim must survive the burden-shifting analysis enunciated in Mt.

Healthy City School District Board of Education v. Doyle, 429 U.S.

274 (1977).   See Powell, 391 F.3d at 17.       First, the employee must

demonstrate that he engaged in protected First Amendment conduct


                                    -12-
and that this conduct "was a substantial or motivating factor" in

his employer's adverse employment action.                 Welch v. Ciampa, 542

F.3d 927, 936 (1st Cir. 2008); see also Mt. Healthy, 429 U.S. at

287.    An employer may subsequently avoid liability by establishing

that it "would have taken the same action regardless of the

plaintiff's political beliefs or protected conduct."                 Welch, 542

F.3d at 936; Padilla-Garcia, 212 F.3d at 74; see also Mt. Healthy,

429 U.S. at 287.      Finally, the burden shifts back to the plaintiff

to     "discredit    the     .    .   .   nondiscriminatory      reason,    either

circumstantially        or       directly,       by   adducing   evidence     that

discrimination was more likely than not a motivating factor."

Padilla-Garcia, 212 F.3d at 77.

            Based on the record, Pierce's claim against neither the

Board nor Olsen survives the Mt. Healthy framework. With regard to

the Board, Pierce has offered no evidence that the Commissioners

had any political motivations in their treatment of him.                    Pierce

has not suggested that either Mycock or Field opposed Wool for

Commissioner, and indeed the record reveals that both Commissioners

shared Pierce's concern that Campbell had an undesirable conflict

of interest.        While a jury might be able to infer that Campbell

took issue with Pierce's opposition to his candidacy, Campbell

resigned from the Board before either Pierce's suspension or

termination took place.            Even granting Pierce the inference that

Campbell may have been involved with drafting the Board's November


                                          -13-
10, 2009 letter to the Ethics Commission, that letter sought only

the   Commission's    opinion   on    Pierce's     potential      conflict    of

interest. Pierce does not contend that Campbell influenced the

Board's decision to terminate Pierce over a year later.                       He

consequently fails to make even a prima facie showing of political

discrimination against the Board.

            Pierce has adduced far more substantial evidence that

Olsen objected to Pierce's political support of Wool.                  Assuming

that Pierce has stated a prima facie case of political retaliation

against Olsen, however, Pierce's claim fails at the second Mt.

Healthy   step.      The   record   identifies     a    legitimate     and   non-

discriminatory    justification       for   each       instance   of    Olsen's

"harassment" of Pierce following the election.             Olsen re-purposed

Pierce's office because the Department was tight on space. He took

back Pierce's cellphone because it was more efficient to make the

phone available to all on-duty officers.           He failed to make Pierce

"Deputy Chief" because no such position had ever existed nor exists

now in the Department.      He upbraided Pierce in connection with the

memorial ceremony because Pierce was unprepared for an official

duty, and included several other offending firefighters in his

reproach.

            Pierce leans heavily on Olsen's decision to suspend him

without pay in the summer of 2010 even though less drastic options,

such as an immediate demotion, were available.                    Yet Olsen's


                                     -14-
decision is directly explained by his objections to Pierce's

ongoing ethics violation as Captain of the Department, and Pierce's

claims that this explanation is pretextual are purely speculative.

While Pierce repeatedly notes that Olsen could have chosen a less

extreme remedy, he does not deny that Olsen's actions were within

the   reasonable   range    of   responses    to   Olsen's   concerns   about

Pierce's professional relationship with his wife.            Nor does Pierce

offer any evidence that such concerns would not have justified

Olsen's actions in the regular course of conduct--for example,

evidence that other Fire Chiefs treated similarly-situated officers

more leniently.

           The district court properly entered summary judgment in

favor of the defendants on Pierce's First Amendment claim.

                    B.     Whistleblower Retaliation

           Pierce further contends that the Board's instigation of

an ethics investigation against him and its ultimate termination of

his   employment   violated      the    Massachusetts   Whistleblower    Act

("MWA"), Mass. Gen. Laws ch. 149, § 185 et seq.              Pierce suggests

that the Board retaliated against him for his October 2, 2009

letter objecting to Olsen's harassment or for his June 24, 2010

letter to the Ethics Commission objecting to the Board's refusal to

grant him an exemption.




                                       -15-
          Pierce's     challenge   may    sound   under   either   section

185(b)(1) or section 185(b)(3) of the MWA.1           Section 185(b)(1)

prohibits a state employer from retaliating against an employee who

"[d]iscloses, or threatens to disclose to a supervisor or to a

public body an activity, policy or practice of the employer . . .

that the employee reasonably believes is in violation of a law."

Mass. Gen. Laws ch. 149, § 185(b)(1).         Section 185(b)(3) of the

statute prohibits an employer from retaliating against an employee

who "[o]bjects to, or refuses to participate in any activity,

policy or practice which the employee reasonably believes is in

violation of a law."    Id. § 185(b)(3).      To qualify for protection

under section 185(b)(1), but not under section 185(b)(3), an

employee must first "br[ing] the activity, policy or practice . .

. to the attention of a supervisor of the employee by written

notice and . . . afford[] the employer a reasonable opportunity to

correct the activity, policy or practice."        Id. § 185(c)(1).

          While the two causes of action are quite distinct, a

plaintiff's burden of proof under the MWA closely parallels his

burden for First Amendment discrimination under Mt. Healthy.            To

prevail on an MWA claim, an employee must show "that he engaged in

protected activity and that his participation in that activity

played a substantial or motivating part in the retaliatory action."


     1
       Because Pierce did not identify which provision of the MWA
underwrites his claim, we follow the district court in analyzing
both sections as the most plausible options.

                                   -16-
Welch, 542 F.3d at 943; see also Larch v. Mansfield Mun. Elec.

Dep't,   272   F.3d   63,    67   (1st   Cir.   2001).   The       employer   may

subsequently    avoid       liability    "by    proffering     a    legitimate,

nonretaliatory reason for the [adverse action]."               Higgins v. New

Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir. 1999).

The burden then shifts back to the employee to "adduce some

significantly probative evidence showing both that the proffered

reason is pretextual and that a retaliatory animus sparked his

dismissal."    Id.

           The parties spend some time debating whether Chief Olsen

qualifies as an "employer" or merely a "supervisor" under the MWA,

and subsequently whether Pierce's October 2, 2009 letter to the

Board disclosed an unlawful "practice of the employer" under

section 185(b)(1).2     The parties also debate whether Pierce's June

24, 2010 letter to the Ethics Commission, directly accusing the

Board of retaliation for an unrelated legal dispute, satisfied

section 185(c)(1)'s notification requirement.




     2
       The Massachusetts statute defines the "Employer" subject to
its provisions as "the commonwealth, and its agencies or political
subdivisions, including, but not limited to, cities, towns,
counties and regional school districts, or any authority,
commission, board or instrumentality thereof." Mass. Gen. Laws ch.
149, § 185(a)(2). The statute defines a "Supervisor" separately,
as "any individual to whom an employer has given the authority to
direct and control the work performance of the affected employee,
[or] who has authority to take corrective action regarding the
violation of the law, rule or regulation of which the employee
complains." Id. § 185(a)(4).

                                     -17-
             We do not reach these issues, because, as with his First

Amendment challenge, Pierce's claim under the MWA fails at the

second step of the burden-shifting framework.              Even assuming that

Pierce could establish a prima facie case of retaliation by the

Board based on either his October 2, 2009 or his June 24, 2010

letter, the Board has offered an independent and legitimate motive

for its adverse employment actions: its objections to Pierce's

potential violations of Mass. Gen. Laws ch. 268A, § 19.                  Pierce

emphasizes the suspicious proximity between his October 2, 2009

complaint to the Board against Olsen and the Board's prompt

instigation of an ethics investigation against him.                Yet the Board

does   not     suggest    the   timing    was     purely    coincidental:     by

simultaneously protesting both his and Jayne's treatment in the

same   professional      communication,    Pierce's       letter   brought   his

potential ethics violation back to the Board's attention.                    The

record corroborates that the months before Pierce's letter had

witnessed revitalized efforts to combat intra-departmental nepotism

at the Cotuit Fire Department, not least through Olsen's release of

an   updated   Familial    Relations     Policy    that    March--well   before

Pierce's support of Wool during the spring election.                   Pierce's

letter also followed soon on the heels of Olsen's August 2009

investigation of a "hostile environment" at the Department, which

yielded complaints against the Pierces by nearly half of the

Department's employees.         The record fully supports the Board's


                                    -18-
claim that its ethics investigation, and its subsequent termination

of Pierce, responded to genuine and timely concerns about Pierce's

professional conduct as Captain.

             The district court properly entered summary judgment in

favor of the defendants on Pierce's MWA challenge.

        C.       Tortious Interference with Contractual Relations

             Finally, in a pendent state claim, Pierce claims that

Chief     Olsen     and   Commissioners          Campbell,       Mycock,   and     Field

tortiously interfered with his employment contract with the Cotuit

Fire Department.

             To     support   a    claim     of    tortious       interference      with

contractual relations, a plaintiff must prove that: "(1) he had a

contract with a third party; (2) the defendant knowingly interfered

with that contract . . . ; (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."

O'Donnell v. Boggs, 611 F.3d 50, 54 (1st Cir. 2010) (quoting

Harrison v. NetCentric Corp., 744 N.E.2d 622, 632 (Mass. 2001)).

Because      a    defendant      may    tortiously       interfere     only      with   a

plaintiff's contract with a third party, an employee cannot bring

a claim of tortious interference with an employment contract

against his own employer.              Harrison, 744 N.E.2d at 632.           However,

an    employee      may   bring    a    claim     against    a    supervisor      if    he

demonstrates that the supervisor acted "out of malevolence, that


                                          -19-
is, with actual malice."           Blackstone v. Cashman, 860 N.E.2d 7, 13

(Mass. 2007) (quoting Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21,

24 (Mass. 1981)) (internal quotation marks and citations omitted);

see also O'Donnell, 611 F.3d at 54 n.3.              A showing of actual malice

requires "more than a showing of mere hostility."                    Zimmerman v.

Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir. 2001).                           A

plaintiff must show that malice "was the controlling factor in the

supervisor's      interference";      that     the    inference     of    malice    is

"probab[le]       rather    than    possib[le]";       and   that   the    evidence

affirmatively suggests        the supervisor's actions "were not derived

from   a   desire    to    advance   the   employer's        legitimate    business

interests."       Id. at 76-77.

            In this case, Commissioners Campbell, Mycock, and Field

were all signatories to Pierce's employment contract with the

Cotuit Fire Department.        It is thus questionable whether they can

be viewed as "supervisors" so as to create liability under the

common     law.      Even    assuming      that      all   four   defendants       are

"supervisors" liable for tortious interference, however, Pierce has

failed to establish that any of them acted with "actual malice."

As discussed above, all of the named defendants had legitimate

business reasons for their adverse actions against Pierce--most

notably, their genuine concerns about the Department's violation of

the Massachusetts ethics laws.             Pierce has not demonstrated that




                                        -20-
probable   malice   was   the    controlling   factor   behind   the

Commissioners' or Olsen's employment decisions.

           The district court properly entered summary judgments in

favor of the defendants on Pierce's tortious interference claim.

                          III.   Conclusion

           For the foregoing reasons, the district court's grant of

summary judgment is affirmed as to all claims.




                                 -21-
