Filed: Apr. 30, 2008
Latest Update: Feb. 22, 2020
Summary: Sean Holloway on brief pro se.supervisor and a fellow employee (both white);or his previous complaint--then Holloway's claims fail. Corp., 331 F.3d 166, 173-75 (1st Cir.TIOB says that Holloway was consistently late for work;with Holloway's performance, backed up by record support.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2207
SEAN HOLLOWAY,
Plaintiff, Appellant,
v.
THOMPSON ISLAND OUTWARD BOUND EDUCATION CENTER, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Sean Holloway on brief pro se.
Nina Joan Kimball, Justine H. Brousseau and Kimball Brousseau
LLP on brief for appellee.
April 30, 2008
Per Curiam. Sean Holloway was fired from his position as
a maintenance worker for Thompson Island Outward Bound Education
Center, Inc. ("TIOB"), which is a non-profit organization operating
on one of the Boston Harbor Islands. He brought suit in the
federal district court for Massachusetts, alleging racial
discrimination and retaliation in violation of Title VII and the
analogous state law. 42 U.S.C. ยง 2000e (2000); Mass. Gen. Laws ch.
151B. The court granted summary judgment to TIOB on both claims,
Holloway v. Thompson Island Outward Bound Educ. Ctr., Inc., 492 F.
Supp. 2d 20 (D. Mass. 2007); Holloway, litigating pro se, appeals.
The story begins in June 2004. Holloway, who is black,
was then working on the kitchen staff. He complained to TIOB about
racial discrimination and harassment on the part of the kitchen
supervisor and a fellow employee (both white); the latter allegedly
threatened to kill Holloway. In response, TIOB placed Holloway on
paid leave and thereafter negotiated a settlement with his counsel.
The settlement agreement provided, inter alia, that Holloway would
be transferred to the maintenance department, that future
employment disputes would be subject to arbitration, that Holloway
would not be terminated except for just cause and that TIOB would
pay Holloway's attorney's fees.
Holloway returned to work on July 19, 2004. Less than
two months later, he was terminated for insubordination, lateness,
absenteeism and threatening behavior.
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The premise of Holloway's suit is that he was actually
fired because of his race or as retaliation for his earlier
complaints. Everything turns on motivation: there is no dispute
that Holloway is black, had engaged in protected conduct and was
subsequently terminated. But if the cause of the firing was
insubordination or lateness or absenteeism--anything besides race
or his previous complaint--then Holloway's claims fail. Benoit v.
Tech. Mfg. Corp., 331 F.3d 166, 173-75 (1st Cir. 2003).
TIOB says that Holloway was consistently late for work;
that he was on various occasions absent without excuse; that he
refused to perform certain assigned tasks; that he was rude to his
supervisors when they attempted to confront him over these
recurring issues; and that two other employees complained that
Holloway had behaved in a threatening manner toward them. TIOB has
submitted affidavits from Holloway's supervisors and the record
includes as well a running file on Holloway kept by one of them.
Holloway admits that he often began work after 9:00 a.m.,
but says that the only ferry to the island sometimes arrived late
and that the 9:00 a.m. rule was (at least in practice) applied
strictly only to the TIOB employees who lived on the island. He
also admits that he refused some orders, but explains that his
settlement with TIOB provided (implicitly) that he would not have
to work with the kitchen staff who had threatened him; his
refusals, he says, were only attempts to enforce that right.
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Likewise, he concedes that he refused to discuss with his
supervisors some of the complaints they raised, e.g. about his
lateness--referring them instead to his lawyers--but his settlement
did provide for arbitration of disputes and Holloway may have been
concerned about unintentionally waiving his rights during informal
discussions. He does acknowledge at least some of the absences
TIOB attributes to him, but denies threatening anyone.
On this record, the prima facie case for discrimination
is extremely weak. Those who terminated Holloway had nothing to do
with the kitchen staff who had harassed him. There is certainly no
direct evidence of discrimination, and the circumstantial case is
weakened--if not defeated altogether--by the fact that Holloway was
replaced by another black employee. Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
The evidence suggesting a possible retaliatory motive for
the firing is somewhat stronger, primarily because of the close
temporal proximity between Holloway's protected conduct and his
firing. Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224
(1st Cir. 2007). The termination took place within two months of
his return to work following his complaints of racial harassment--
an interval surely short enough at least to raise suspicions.
Id.; see also Calero-Cerezo v. U.S. Dep't of Justice,
355 F.3d 6,
25-26 (1st Cir. 2004).
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But these suspicions can be authoritatively dispelled
(and a fortiori the weaker discrimination claims defeated) by an
employer's convincing account of the legitimate reasons for the
firing. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05
(1973). And TIOB has provided, with solid support in the record,
a list of such reasons. Holloway could only overcome this barrier
by poking sufficient holes in TIOB's account to create a plausible
inference that the reasons given for the discharge actually mask a
forbidden retaliatory motive.
He has not done so. Although he advanced the reasonable
argument that if the first ferry to the island arrives after 9:00
a.m., an employee should not (indeed, would not) be penalized for
lateness, the record reveals that Holloway faced discipline for
missing the ferry entirely or for not checking in with his
department after its arrival--different matters entirely.1
And he has defended his refusal to follow orders by
claiming that his settlement agreement entitled him to stay away
from the kitchen staff, but the written agreement in the record
contains no such provision and even if an oral side-agreement
existed, the record reflects that Holloway's supervisors attempted
1
For example, the running file kept by Holloway's supervisor
indicates that on August 10, "Sean missed boat. Crew saw him drive
onto EDIC dock @ 8:36 after they had already turned to seaward." On
August 13, the file indicates that Holloway was instructed to be
"ready to work . . . directly from the 9:00 boat drop off." And on
August 31, he was reprimanded because when "the ferry arrived at
9:15, [he] walked by our workshop and did not check in."
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to accommodate him but were met with noncompliance and
insubordination on a series of occasions. For example, the running
file indicates that on August 31, Holloway "returned to Mr.
Tibbetts to voice [his] aversion to working with Mr. Eppinger. At
this time Mr. Tibbetts advised 'Fine, then just help Brendan and
Kenny get the rest of the stuff on the pier when they are done.'"
However it was later revealed that Holloway "had not assisted with
any moving of materials and had gone off to work on [his] own."
Holloway cannot explain away the insubordination by
claiming that his settlement provides for arbitration of disputes;
TIOB might still legitimately take issue with his rudeness, use of
obscenities and refusal to discuss routine matters with his
supervisors. Merely as one instance among several, the running
file says that on August 13, Holloway's supervisor attempted:
to address [Holloway's] habit of being ready
for work at 9:30. He stated that it was the
way he did things and what he was accustomed
to and that he would not change this practice.
Made statements such as "I don't need this
crap" and "I'm not even talking to you, send
it to my lawyer." . . . Told him to please
not ignore me or I will be forced to give him
negative written feedback for insubordination.
Said he did not care, "whatever." . . .
[Later that day,] Sean made veiled threats
that "You do not want to get involved in this
or you'll go down too." Said that "many
lawyers out there would love to get a piece of
this and I'm just tempted to call them."
Moreover, Holloway has not even attempted to respond to
various other complaints about his work performance, such as his
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repeated practice of calling in sick after 9:00 a.m., in violation
of TIOB policy. (The running file indicates that Holloway called
in sick after 9:00 a.m. on August 20 and August 24.) Nor can all
of his unexcused absences be justified by a family emergency that
apparently took place during late July and early August. (The
record supports TIOB's claims that Holloway was absent without
excuse on September 1, 2, and 7, among other days.)
In sum, TIOB has provided an extensive list of problems
with Holloway's performance, backed up by record support. Holloway
has no evidence that this documentary support (including the
running file kept by his supervisor) was falsified in any way, and
his attempts to refute the reasons one-by-one are not persuasive.
On this record, no reasonable jury could find that the explanations
for his discharge were pretexts and therefore that his termination
reflected discrimination or retaliation on the part of TIOB.
Affirmed.
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