          United States Court of Appeals
                        For the First Circuit


No. 15-1857

                           SHELLY A. RANDO,

                        Plaintiff, Appellant,

                                  v.

                          MICHELLE LEONARD,

                         Defendant, Appellee,

                         CVS PHARMACY, INC.,

                              Defendant.


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

              [Hon. Leo T. Sorokin, U.S. District Judge]


                                Before

                  Torruella, Thompson, and Kayatta,
                           Circuit Judges.


     Robert D. Loventhal, on brief for appellant.
     Laura M. Raisty and Locke Lord LLP, on brief for appellee.



                            June 17, 2016
           TORRUELLA, Circuit Judge.         From 2010 to 2012, more than

100 bottles of the pain medication butalbital went missing from a

CVS Pharmacy in Concord, Massachusetts.         After a CVS surveillance

video   showed     plaintiff-appellant       Shelly   Rando,     a    pharmacy

technician, pocketing a bottle of butalbital, Rando was suspected

of committing the thefts.      Defendant-appellee Michelle Leonard, a

loss prevention manager at CVS, conducted an interview with Rando

in which Rando confessed to stealing all of the missing bottles,

and Rando was subsequently terminated.         In this suit, Rando denies

that she stole the bottles and asserts that Leonard is liable for

the tort of intentional interference with contractual relations

for forcing her to confess.      The United States District Court for

the District of Massachusetts entered summary judgment in favor of

Leonard.   We affirm.

                                      I.

A.   Factual History

           Since    2002,   Leonard    has   served   as   a   Regional   Loss

Prevention Manager at CVS Pharmacy, Inc. ("CVS").1                   As a Loss

Prevention Manager, Leonard investigates "shrinkage," the loss of

inventory due to factors such as theft and vendor fraud.                    In

February of 2011, Leonard learned of significant "growth" in


1  CVS Pharmacy was incorrectly named as CVS Caremark in the
complaint.


                                      -2-
butalbital at the CVS in Concord.2           Growth occurs where a pharmacy

"order[s] a drug in quantities that significantly exceed those

that are being dispensed to patients."              At that time, the CVS

should    have   had   73   bottles,   each    containing   100   tablets   of

butalbital, in inventory.       A review of the inventory yielded only

205 tablets of butalbital:        7095 tablets, or slightly fewer than

71 bottles, were missing.        The losses soon stopped, however, and

Leonard concluded that an employee who had recently left the

company must have been responsible for their disappearance.                 In

April of 2012, Leonard learned that the same CVS in Concord was

again experiencing growth in butalbital, with 67 bottles, or 6700

tablets, missing.      All in all, a total of 138 bottles of butalbital

had disappeared since 2010.             Around this time, Leonard also

learned that the CVS had growth in hydrocodone.

            Rando had served as a pharmacy technician at various CVS

stores since 1994 and was then employed at the CVS in Concord.              On

April 21, 2012, an in-store surveillance camera captured Rando

taking a bottle of butalbital off the shelf and placing it in her

pocket.    Rando took the bottle home that day.         After watching the

video, either store manager Steve Normandy or pharmacy manager



2  The prescription drug at issue in this litigation is in fact a
combination of butalbital, acetaminophen, and caffeine. We refer
to the drug as "butalbital" throughout this opinion.


                                       -3-
Colleen Robillard told Leonard about the tape and informed her

that a bottle of butalbital was missing.   Leonard watched the tape

as well.3

            Two days later, on April 23, Leonard interviewed Rando

with another loss prevention manager, Alfie Binns.     Early in the

interview, Rando acknowledged having taken the single bottle of

butalbital on April 21.   Leonard then broached the issue of whether

Rando had also stolen the hydrocodone and the other 138 bottles of

butalbital.    Rando felt coerced and pressured during the meeting

and recalled that Leonard barraged her with questions.      Leonard

repeatedly placed a confession in front of Rando for her to sign,

asked whether Rando knew that she was going to be terminated,

yelled at Rando, and threatened to call the police.4     Rando also

felt nervous as she did not know who Binns was or why he was there.

Desperate to leave and exhausted by Leonard's constant questions,

Rando finally signed the confession and a promissory note stating

that she had stolen the 138 bottles of butalbital (but not any


3  Rando denies that Leonard recognized her in the tape on the
basis that, in her deposition, Leonard stated that she did not
recall whether she could see Rando's face or what Rando did with
the bottle in the video.

4  It is difficult to discern, based on Rando's testimony, whether
Leonard threatened to call the police before or after Rando
confessed to stealing the remaining bottles of butalbital. For
purposes of summary judgment, we will assume that Leonard made
this threat before Rando's confession.


                                -4-
hydrocodone) and owed CVS $7,482.99.        During her deposition, Rando

stated that she "would have admitted to stealing the crown jewels

to get out of that room."

            Once Rando signed the confession, Leonard called the

police and they arrived soon after.            Rando agreed to let them

search her home.     During the search, the police found the bottle

of butalbital that Rando had stolen two days before, along with

two empty bottles from a "long, long time ago."           Rando has not had

a prescription for butalbital for more than ten years.

            In early May, Normandy called Rando to terminate her

employment.      Normandy    did   not    explain   why   Rando   was   being

terminated, nor did Rando ask for an explanation.                  Rando was

charged with one count of larceny over $250 in the Concord District

Court.     After CVS failed to give any further evidence to the

assistant district attorney ("ADA") in charge of the case, Rando

was accepted into a pretrial diversion program.             Rando took drug

tests over a six-month period as part of the program, and the case

was dismissed.      The ADA later informed Rando's counsel that

another individual had confessed to stealing the hydrocodone.

B.   Procedural History

            In May of 2013, Rando filed suit against Leonard and CVS

in   the   United   States   District      Court    for   the   District   of

Massachusetts on the basis of diversity jurisdiction.             Her amended


                                    -5-
complaint alleged counts of malicious prosecution, intentional

infliction     of    emotional     distress,      negligent    infliction      of

emotional    distress,       intentional    interference    with    contractual

relations, and abuse of process.

             The defendants moved to dismiss Rando's claims under

Federal Rules of Procedure 12(b)(1) and 12(b)(6).                  The district

court   dismissed     all    of   Rando's   claims   except   her     count   for

intentional interference with contractual relations, which was

only alleged against Leonard.5            After discovery, Leonard filed a

motion for summary judgment, which the district court granted in

a written order.       Rando now appeals that determination.

                                      II.

A.   Standard of Review

             "We    review   an   order    for   summary   judgment    de   novo,

evaluating the facts and all reasonable inferences therefrom in

the light most flattering to the nonmoving party."              Nieves-Romero

v. United States, 715 F.3d 375, 378 (1st Cir. 2013).                    Summary

judgment is warranted where "there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law."     Fed. R. Civ. P. 56(a).          "An issue is 'genuine' if the

evidence of record permits a rational factfinder to resolve it in


5  Accordingly, none of Rando's claims against CVS remain in this
case.


                                      -6-
favor of either party," and "'material' if its existence or

nonexistence has the potential to change the outcome of the suit."

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st

Cir. 2010).

B.   Analysis

           For        the   tort    of    intentional     interference       with

contractual relations,

        a plaintiff must prove that (1) he had an
        advantageous relationship with a third party . . . ;
        (2) the defendant knowingly induced a breaking of
        the relationship; (3) the defendant's interference
        with the relationship, in addition to being
        intentional, was improper in motive or means; and
        (4) the plaintiff was harmed by the defendant's
        actions.

Blackstone v. Cashman, 860 N.E.2d 7, 12-13 (Mass. 2007).                 Although

Leonard concedes that Rando can satisfy the first element of the

four-part test through her employment relationship with CVS, she

asserts that Rando cannot make the other three showings.                  Because

Rando   fails    to    satisfy     the   third   prong   of    the   test -- that

Leonard's alleged inducement was improper -- we need not reach

Leonard's other arguments.

           In assessing whether a defendant acted with improper

motive or means, Massachusetts courts apply a heightened standard

where defendants are "'corporate officials' acting 'within the

scope of their employment responsibilities.'"                 Id. at 13 (quoting

Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 24 (Mass. 1981)).

                                         -7-
In such instances, the plaintiff must carry the heavy burden of

showing that the defendant acted with "actual malice," or, with "a

spiteful, malignant purpose, unrelated to the legitimate corporate

interest."        Id. (quoting Wright v. Shriners Hosp. for Crippled

Children, 589 N.E.2d 1241, 1246 (Mass. 1992)).

             In her motion for summary judgment before the district

court and again on appeal, Leonard argued that she was a "corporate

official"        and     the     actual    malice    standard     was       therefore

appropriate.           By doing so, she fulfilled her threshold duty of

"bringing to the attention of the plaintiff and the court in some

fashion that [s]he claims to qualify as a 'corporate official' of

the relevant corporation and therefore is entitled to have the

actual malice standard apply."               Weiler v. PortfolioScope, Inc.,

12 N.E.3d 354, 364 (Mass. 2014).                Once Leonard asserted that she

qualified as a corporate official, Rando "[bore] the burden of

proving either that the defendant does not so qualify and is not

entitled to the actual malice standard, or that the defendant did

act with actual malice."            Id.    Rando does not carry this burden,

as she has waived any argument that Leonard does not qualify as a

"corporate official" and fails to produce evidence that Leonard

acted with actual malice.

             In    her    opposition      before    the   district    court,   Rando

stated,     in    a     single     sentence,     that     she   did   not    believe


                                          -8-
Massachusetts   case    law   supported   Leonard's   argument    that    she

qualified as a corporate official and that Rando did "not waive

the right to argue that a showing of malice is not required."             On

appeal, Rando's briefing on this issue is limited to a footnote in

which she reiterates that she "does not waive the right to argue

that a showing of malice is not required" and asserts, without

developed   argument,    that    "[c]orporate   officials'       status    is

reserved for owners and controlling officials of a company."

Despite Rando's assertions to the contrary, these perfunctory

arguments are insufficient to preserve her argument on appeal.

See Armistead v. C & M Transp., Inc., 49 F.3d 43, 45 n.2 (1st Cir.

1995) (deeming waived an "argument [that] was not fully developed

below"); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

("[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").6


6  Even if it were not waived, Rando's argument that the "corporate
officials" analysis is reserved for more senior employees such as
owners and shareholders is without merit.      The term "corporate
official" has been used "expansively" to include "high level
corporate officers, as well as directors involved in management."
Blackstone, 860 N.E.2d at 17; see also Zimmerman v. Direct Fed.
Credit Union, 262 F.3d 70, 76 (1st Cir. 2001) (explaining that the
actual malice analysis applies to "defendant-supervisors");
Boothby v. Texon, Inc., 608 N.E.2d 1028, 1040 (Mass. 1993) (same).
Leonard need not have "day-to-day involvement" in the enterprise
so long as her activities are "directed toward corporate purposes."
Blackstone, 860 N.E.2d at 17 (quoting Gram, 429 N.E.2d at 24).
Although she was not Rando's direct supervisor, Leonard acted in
a managerial position and her actions here served the corporate
purpose of "protection of company assets and reduction of

                                   -9-
           Although Rando's arguments regarding whether Leonard

acted with actual malice are properly preserved, we find that Rando

produces no evidence suggesting that Leonard acted with actual

malice and without a legitimate corporate purpose.           See Zimmerman

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

("Proof of actual malice requires more than a showing of mere

hostility.").     Rando asserts that Leonard knowingly elicited a

false confession from Rando because Leonard "was looking for

someone to pin the blame on" after failing to find the cause of

the continued butalbital and hydrocodone losses.              Rando's only

evidence   on   this   point   is   that   Leonard   spoke   to   her   boss,

Christopher Crossman, about the thefts before interviewing Rando.

But the mere fact that Leonard discussed an assignment with her

boss does not suggest that she was frustrated or looking for

someone to blame, as Rando argues.         Rando also asserts that Leonard

accused Rando "without any evidence establishing that theft."             To

the contrary, Leonard had reason to believe that Rando may have

been the culprit:      Rando worked at the Concord CVS when the thefts

began, and she was caught on videotape stealing a bottle of

butalbital.     To be sure, Rando's theft of one bottle of butalbital



shrinkage."   Applying the "actual malice" standard here thus
serves the policy of protecting those involved "in matters related
to the conduct of the internal affairs of a corporation." Id. at
16 n.15.

                                    -10-
does not necessarily mean she was responsible for the other thefts.

Nevertheless,       there      is     no     indication     that     Leonard,     by

investigating Rando's potential involvement in the overarching

growth problem, acted with spite or malice.7                    Rando claims that

Leonard lied to her, but the record evidence does not support this

assertion.        Nor does Rando produce any evidence that Leonard

harbored    any     ill     will    toward    Rando.       Indeed,    their     prior

interactions,       which    were     limited     to   polite     greetings,     were

uneventful.        At worst, Rando's testimony suggests that Leonard

aggressively       questioned       Rando,   informed     Rando    that   she   faced

termination, threated to call the police, and yelled at her.                       We

do   not   doubt    that     Rando    felt    frightened    and    upset   by    this

encounter.     Leonard's behavior, however, simply does not rise to

the level of "actual malice."              See Weber v. Cmty. Teamwork, Inc.,

752 N.E.2d 700, 716 (Mass. 2001) ("[E]vidence that a corporate

official engaged in 'sloppy and unfair business practices' is an

insufficient basis to negate the official's broad privilege to

terminate an at-will employee." (quoting Gram, 429 N.E.2d at 25));

King v. Driscoll, 638 N.E.2d 488, 495 (Mass. 1994) ("[P]ersonal

dislike will not warrant an inference of the requisite ill will.").


7  Moreover, the evidence shows that during the interview Leonard
asked Rando only one question about the hydrocodone. Once Rando
denied stealing the hydrocodone, Leonard did not ask any further
questions on that topic.


                                           -11-
Recall, Leonard's job was to determine the source of the butalbital

and hydrocodone losses:    even if she did so in a hostile manner,

that evidence cannot support a claim for intentional interference

with contractual relations.

                                 III.

            Because the record is devoid of any evidence that Leonard

acted with actual malice, the motion for summary judgment is

affirmed.

            Affirmed.




                                 -12-
