Pearson v. Massachusetts Bay Transportation Authority , 723 F.3d 36 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1956
KEITH PEARSON,
Plaintiff, Appellant,
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Mitchell J. Notis for appellant.
Jeffrey A. Dretler, with whom Walter B. Prince and Price Lobel
Tye LLP were on brief, for appellee.
July 15, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Keith Pearson appeals the
district court’s summary judgment for his employer, the
Massachusetts Bay Transportation Authority (MBTA), on Pearson’s
claims of employment discrimination and retaliation. We affirm.
I
A
The MBTA operates the Boston subway and bus system, and
employs Pearson, who was hired in 1990 as a “maintainer” and
promoted in 1994 to his current position of “signal inspector.” In
this job, he supervises a team of maintainers to ensure that trains
get proper upkeep and that any problems with service are quickly
resolved. Pearson is one of six signal inspectors, who report to
the four maintenance supervisors: Russell Fairhurst, Ernest
Morrison, John McCabe, and Jan Hagan. The supervisors report to
the Superintendent of the Signal Department, Thomas Cary, who
reports to the Deputy Director of Signals and Communications, Peter
Bertozzi, who in turn reports to the Director of Systemwide
Maintenance and Improvements, John Lewis. Charles O’Reilly, the
Senior Director of Infrastructure and Engineering, supervises
Lewis, and at the end of this protracted chain of command sits
Daniel Grabauskas, the general manager of the MBTA. Pearson is
African-American, as are Fairhurst, Morrison, and Lewis. The
others are Caucasian.
-2-
Pearson’s employment by the MBTA has been punctuated by
discord, and he has been disciplined several times for reasons such
as inattendance, discourtesy, and insubordination. The conduct
giving rise to this litigation began with a November 2004
instruction from Fairhurst to Pearson that his team fix a problem
at the Arlington Street Station. Pearson failed to get the job
done and received a five-day suspension with a “Discipline Slip,”
informing him that he had “reached the final warning stage of
[MBTA’s] progressive disciplinary track. . . . [A]ny further
violation[s] . . . will result in further disciplinary action, the
termination of your employment.” J.A. 62.
Pearson committed another violation on September 12,
2006, when Hagan instructed him to go with a crew of maintainers to
Sullivan Square Station to fix malfunctioning track circuits.
Pearson never reported to Sullivan Square, and the circuits were
not fixed for three hours. The next day, Cary requested written
statements from Hagan and Pearson, and Cary then discussed the
appropriate discipline with Bertozzi, Lewis, and O’Reilly.
Although the MBTA’s policies provided that discharge was warranted
for Pearson’s dereliction in light of his disciplinary history, the
four decided to recommend only a demotion to allow Pearson to keep
his job. On September 21, Cary drafted a memorandum to Bertozzi
recommending that Pearson be demoted, but before he delivered it,
he sent it to the MBTA’s labor relations department, under the MBTA
-3-
policy to seek labor relations’s approval before imposing any
discipline.
Josh Coleman, a labor relations representative, received
Cary’s letter and on September 29 asked Cary for more information
about Pearson’s record and the September 12 incident. During his
investigation, Coleman learned from a union representative that
because Pearson was behind on his union dues, he might not be
eligible to drop-back to maintainer by bumping a junior employee.
The union representative also indicated that Pearson intended to
file a grievance, no matter what the discipline was. With this
information in mind, the labor relations department concluded that
termination was proper and recommended it to Cary, as against
demotion. At this time, neither Coleman nor his supervisor, Brian
Donohoe, was aware than Pearson was African-American. On October
24, Fairhurst issued Pearson a Discipline Slip, stating that he was
“hereby suspended for thirty (30) days with a recommendation for
discharge.” J.A. 520.
Two weeks later, Pearson wrote a letter to Senator Edward
Kennedy, complaining of mistreatment and of on-going racial unrest
at the MBTA, and the next month, Senator Kennedy wrote to the MBTA
leadership, referring to Pearson’s allegations. On January 5, 2007
an investigator from the MBTA’s Office of Diversity and Civil
Rights met with Pearson and his lawyer, but Pearson declined to
take part in any investigation when he learned that the focus would
-4-
be general racial discrimination at the MBTA, as opposed to his
termination.
At some point after his October 24, 2006 suspension,
Pearson did file a labor grievance concerning his termination,
which was denied on January 8, 2007. Bertozzi then sent a memo to
the MBTA leadership, dated January 18, 2007, formally recommending
Pearson’s discharge, with copy to the labor relations department,
which at that point conducts a full, independent review of any
proposed termination and submits a separate recommendation
memorandum to the General Manager. After losing Pearson’s file,
labor relations eventually concurred with Bertozzi’s recommendation
in a May 1 memo to Grabauskas, who fired Pearson on May 2. Three
months later, Pearson filed claims with the Massachusetts
Commission Against Discrimination (MCAD) and the Equal Employment
Opportunity Commission (EEOC) alleging discrimination and
retaliation.
Following his discharge, Pearson also availed himself of
arbitration in challenging the denial of his grievance. On October
22, after a two-day hearing, the arbitrator ruled for Pearson,
concluding that the MBTA had lacked just cause to terminate him
because Hagan’s directive that Pearson report to Sullivan Square
was “nuanced enough to be subject to reasonable misinterpretation.”
J.A 524. The arbitrator ordered Pearson’s reinstatement, and the
MBTA reinstated him to his former position on January 7, 2008, with
-5-
full back pay and benefits. When Pearson returned to work, the
discord resumed, and he has been disciplined at least three times
since his reinstatement.
B
In October 2008, Pearson filed a complaint against the
MBTA in the district court, alleging racial discrimination in
violation of Mass. Gen. Laws ch. 151B and 42 U.S.C. § 2000e, as
well as unlawful retaliation, in violation of the same provisions.
He contended that his October 24, 2006 suspension and termination
as recommended constituted racial discrimination, that his eventual
termination was retaliation for contacting Senator Kennedy, and
that various MBTA employees discriminated against him after his
return to work and retaliated against him for filing charges with
the MCAD and EEOC. Thus, he alleged four violations:
(1) discrimination in his suspension and discharge;
(2) discrimination in the MBTA’s post-reinstatement conduct;
(3) retaliation by termination for his letter to Senator Kennedy;
and (4) retaliation in the MBTA’s post-reinstatement treatment, in
response to his filing administrative charges.
The MBTA moved for summary judgment. After briefing and
argument, the magistrate judge recommended that the motion be
granted on the claim of discriminatory suspension, finding that the
“record more than adequately establishes a legitimate,
non-discriminatory reason for the termination,” J.A. 538, and that
-6-
Pearson had failed to prove that the MBTA’s reason was pretextual.
The magistrate also recommended rejection of both retaliation
claims. She found no causal link between the termination and
Pearson’s letter to Senator Kennedy, which was sent after the
recommendation to fire him, and found that Pearson had failed to
allege a materially adverse employment action after his
reinstatement, causally related to his administrative charges. The
magistrate made no recommendation on the racial discrimination
allegations tied to the conduct occurring after Pearson’s
reinstatement, understanding that the MBTA had not moved for
summary judgment on that count.
The district court adopted the magistrate’s
recommendation in full and granted summary judgment for the MBTA on
the three claims considered by the magistrate. After the MBTA
moved for summary judgment on the outstanding claim, the district
court granted judgment on that, too, finding that Pearson’s
allegations do not support an inference of racial discrimination.
This timely appeal followed.
II
In this court, Pearson challenges “only the District
Court’s action [on] the termination itself, and not the
post-reinstatement conduct.” Appellant’s Br. 2 n.1. Our review is
accordingly limited to the summary judgment for the MBTA on two of
the four claims: that Pearson’s discharge constituted racial
-7-
discrimination and unlawful retaliation for writing to Senator
Kennedy. We review each de novo, Henry v. United Bank, 686 F.3d
50, 54 (1st Cir. 2012), under Fed. R. Civ. P. 56(a) that summary
judgment is called for when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”
A
Title VII of the Civil Rights Act of 1964 is the
authority for the claim of discriminatory termination in its
provision that “[i]t shall be an unlawful employment practice for
an employer . . . to discharge any individual . . . because of such
individual’s race.” 42 U.S.C. § 2000e-2(a). We review the claim
under the framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See, e.g., Cham v. Station Operators,
Inc., 685 F.3d 87, 93-94 (1st Cir. 2012). A plaintiff must
establish a prima facie case of discrimination, Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000), and if he
succeeds, “the burden of production shifts to the defendant to
produce evidence ‘that the adverse employment actions were taken
for a legitimate, nondiscriminatory reason,’” Cham, 685 F.3d at 94
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)
(internal quotation marks omitted)). “If the defendant produces
such evidence, the McDonnell Douglas framework ‘disappear[s]’ and
the sole remaining issue is ‘discrimination vel non,’” leaving the
-8-
plaintiff “an opportunity to show that the reasons offered by the
defendant were a pretext for discrimination.” Cham, 685 F.3d at 94
(quoting Reeves, 530 U.S. at 143) (alteration in original).
We focus only on the final enquiry, for the MBTA offers
merely one sentence contesting that Pearson has set out a prima
facie case, Appellee’s Br. 16 n.7 (arguing in the alternative that
Pearson’s disciplinary history “demonstrates that he was not
performing his job at an acceptable level, a necessary element of
his prima facie case”), and Pearson implicitly acknowledges that
the MBTA has produced some evidence that the discharge was
nondiscriminatory, e.g., Appellant’s Br. 18 (arguing that the
reasons advanced by the MBTA for his discharge were pretextual).
We therefore go directly to the ultimate question, whether the
MBTA’s stated reasons for discharge were pretextual, which at the
summary judgment stage is whether the employee “has raised a
genuine issue of fact as to whether the termination of [his]
employment was motivated by . . . discrimination.” Domínguez-Cruz
v. Suttle Caribe, Inc., 202 F.3d 424, 431 (1st Cir. 2000). To
defeat summary judgment, Pearson must offer “some minimally
sufficient evidence, direct or indirect, both of pretext and of
[MBTA’s] discriminatory animus.” Acevedo-Parrilla v. Novartis
Ex-Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012). “[M]ere questions
regarding the employer’s business judgment are insufficient to
raise a triable issue as to pretext.” Id.
-9-
We read the record as showing that Pearson has not shown
a material dispute of fact as to pretext, and thus side with the
district court in rejecting the claim that racial discrimination
motivated his firing. As the district court found, the MBTA
offered a legitimate, non-discriminatory reason for Pearson’s
termination: that he had been repeatedly insubordinate and had
reached the end of the MBTA’s progressive disciplinary sequence.
As we have often found, insubordination is obviously sufficient to
support an adverse employment action. See Windross v. Barton
Protective Servs., Inc., 586 F.3d 98, 104 (1st Cir. 2009)
(collecting cases).
Pearson responds with the same contentions the district
court rejected, describing a series of events that, he argues,
amounts to a showing that his firing was pretextual: (1) McCabe (a
maintenance supervisor) and Bertozzi (Deputy Director of Signals
and Communications) treated him less favorably than white
co-workers in imposing discipline with respect to the 2004 and 2006
incidents; (2) Pearson had been active in supporting
African-American employees in asserting their civil rights; (3) the
MBTA ignored his supervisors’ recommendation that he be demoted,
not fired; (4) he was left in “employment limbo” for six months
after his recommended termination; (5) he was informed that
“someone in [l]abor [r]elations” did not like him; (6) the
arbitrator did not find just cause for his termination; and (7) it
-10-
was unclear who within labor relations made the decision to fire
him. See Appellant’s Br. 16-21.
The crux of his claim, therefore, is that a series of
questionable acts can establish pretext sufficient to support a
discrimination claim, but an examination of the record evidence
shows why merely questionable behavior does not get across the line
to showing “minimally sufficient evidence” of pretext.
Acevedo-Parrilla, 696 F.3d at 140. The items on Pearson’s list
that might give one pause fall short for the reasons stated by the
district court. Notably, the white employee alleged to have
escaped discipline for the 2006 misconduct had not (unlike Pearson)
disobeyed a direct order from a supervisor. See J.A. 544.
Although the 2004 discipline that the MBTA meted out was not
similarly applied to a white employee, it was imposed on Pearson by
an African-American supervisor and was not imposed against a
different African-American employee. See J.A. 513. As for the
arbitrator’s reinstatement decision, it simply means that Pearson
should not have been fired because Hagan’s directive was ambiguous;
there is no intimation that the firing had been motivated by racial
animus. See J.A. 543-44.
It is true that the record does not indicate the person
within labor relations who made the decision to convert Pearson’s
proposed suspension into a recommended termination, but as the
district court explained, the supervisors against whom Pearson
-11-
alleges discriminatory motive recommended only a demotion;
moreover, Coleman and Donohoe, who were involved in changing the
recommendation to a termination, did not know that Pearson was
African-American when the recommendation was converted. Finally,
the long time that elapsed between Pearson’s misconduct and his
termination suggests only that the MBTA has a lengthy process for
such matters (not to mention the loss of his file along the way),
and Pearson does not argue that the MBTA failed to follow its
standard drill. We have reviewed Pearson’s remaining accusations
and find that they do not create a triable issue regarding pretext.
The magistrate correctly characterized Pearson’s allegations as
nothing more than “a disagreement with [MBTA] regarding its
disciplinary policies and rule violations,” J.A. 544, which cannot
defeat summary judgment, see Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990) (affirming grant of summary
judgment where the non-moving party offered only “conclusory
allegations, improbable inferences, and unsupported speculation”).
B
Pearson next faults the district court’s conclusion that
the MBTA did not retaliate against him for writing to Senator
Kennedy, which would violate Title VII and Massachusetts Chapter
151B. See Appellant’s Br. 25-27. To prove a claim of retaliation
under either provision, “a plaintiff must show that (i) she
undertook protected conduct, (ii) she suffered an adverse
-12-
employment action, and (iii) the two were causally linked.”
Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2005).
Whether summary judgment was proper here turns only on the last
element as there is no dispute that writing one’s legislator is
protected conduct and that being terminated is an adverse
employment action. We have rejected claims on this ground when the
allegations are “largely conclusory and lacking in the concrete
documentation necessary to prove the causal link.” Ramos v. Roche
Prods., Inc., 936 F.2d 43, 49 (1st Cir. 1991).
The district court correctly held that there was no
causal link between Pearson’s letter and his termination, the
reason being obvious: MBTA officials recommended firing Pearson
before he wrote the letter. Causation moves forward, not
backwards, and no protected conduct after an adverse employment
action can serve as the predicate for a retaliation claim. See,
e.g., Sullivan v. Raytheon Co., 262 F.3d 41, 49 (1st Cir. 2001)
(rejecting a retaliation claim under Chapter 151B “[b]ecause [the
plaintiff’s] protected action — filing a charge of discrimination
— occurred after the adverse employment action”); Mole v. Univ. of
Mass., 814 N.E.2d 329, 340 (Mass. 2004) (“Where, as here, adverse
employment actions or other problems with an employee predate any
knowledge that the employee has engaged in protected activity, it
is not permissible to draw the inference that subsequent adverse
actions, taken after the employer acquires such knowledge, are
-13-
motivated by retaliation.”). Here, to be sure, the decision to
terminate had not worked its way to the General Manager, but
Pearson points to no evidence that this recommendation would have
been rejected if no one at the higher echelon had known of the
Kennedy letter. Pearson does argue that Coleman (in the labor
relations section) knew of his letter before the day of his
termination, and that Coleman’s awareness provides the requisite
showing of cause. But knowledge alone cannot provide the causal
link. “Were the rule otherwise, then a disgruntled employee, no
matter how poor his performance or how contemptuous his attitude
toward his supervisors, could effectively inhibit a well-deserved
discharge by merely filing, or threatening to file, a
discrimination complaint.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 828 (1st Cir. 1991).
Finally, Pearson argues that a letter written by Coleman
threatening to fire Pearson for insubordination following his
reinstatement demonstrates animus that supports an inference that
Coleman’s prior recommendation was retaliatory. But this is simply
too attenuated. More than a year separated these events, and
Coleman had a legitimate reason for writing the letter: Pearson had
failed to show up for a mandatory appointment (even though it later
turned out that Pearson had not been made aware of the meeting).
Simply put, we hold that Coleman’s post-reinstatement conduct does
-14-
not support an inference that Pearson had been fired in retaliation
for writing to Senator Kennedy the previous year.
III
The judgment of the district court is affirmed.
It is so ordered.
-15-