Filed: Jan. 26, 2015
Latest Update: Mar. 02, 2020
Summary: , Amphenol's employees were paid for the time they worked, not for, the amount of work they produced.reported his timecard activities to Harrington., There is no evidence that Amphenol knew of this practice before, Sullivan and ironically, Moses brought Ameen's conduct to, Conners's attention.
United States Court of Appeals
For the First Circuit
No. 14-1086
MURAD Y. AMEEN,
Plaintiff, Appellant,
v.
AMPHENOL PRINTED CIRCUITS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta, Circuit Judges.
Lauren S. Irwin, with whom Heather M. Burns and Upton &
Hatfield, LLP were on brief, for appellant.
Jonathan D. Rosenfeld, with whom Jennifer C. Brown and Wilmer
Cutler Pickering Hale and Dorr LLP were on brief, for appellee.
January 26, 2015
THOMPSON, Circuit Judge. Einstein instructs that time is
relative to the observer.1 The observer in this case, defendant
Amphenol Printed Circuits, Inc. (Amphenol) learned that one of its
employees, plaintiff Murad Ameen, was shifting time by clocking out
for lunch while still at work, and then, once back on the clock,
leaving for a more leisurely lunch. A brief history of Ameen's
time revealed that he had been stealing time consistently for
years. Unfortunately for Ameen, in Amphenol's view, time is money.
Amphenol fired Ameen, and he filed suit alleging that the basis for
his termination was not theft of time, but retaliation for his
having taken FMLA leave. The district court awarded summary
judgment to Amphenol, a decision Ameen now appeals. Although he
succeeded in saving time in a bottle for some three years, his
words won't make wishes come true -- we reject his argument and
affirm the district court's grant of summary judgment to Amphenol.
I.
BACKGROUND
A. Time Off
Although it is tempting to begin with "once upon a time,"
we must first note that the underlying facts are largely
undisputed. Because the district court granted summary judgment
before any fact-finder could evaluate the competing evidence and
1
Einstein, Albert (1905), "Zur Elektrodynamik bewegter
Körper", Annalen der Physik 322 (10): 891-921.
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inferences, where accounts differ, we recount the facts in a light
as favorable to Ameen as the record will reasonably allow. See
McArdle v. Town of Dracut, 732 F.3d 29, 30 (1st Cir. 2013).
By the spring of 2012, Murad Ameen had worked for
Amphenol (a manufacturer of printed circuit boards) and its
predecessor, Teradyne, for nearly a dozen years. During that time,
he received positive performance evaluations, several raises, and
was promoted to the position of Group Leader. As Group Leader, in
addition to operating the company's drill machines, Ameen was
responsible for leading the other operators on the second shift,
and assisting in planning overtime staffing to meet customer
demand.
That spring, Ameen was anticipating the birth of his
second child. He requested and received a two-week leave under the
Family and Medical Leave Act ["FMLA"], from March 12 to March 26,
as well as a one-week extension. During most of that time, Ameen
worked a reduced schedule. Ameen then returned to full-time work,
but declined requests to work overtime, citing his wife's poor
postpartum health. Although both Ameen and Amphenol agree that
overtime was not "mandatory," whether it was expected is a matter
of some dispute.
On April 4, 2012, Ameen requested a personal leave of
three and a half weeks, from April 26 to May 21. This was not FMLA
leave, but rather, time off to accommodate a trip to his native
-3-
Iraq.2 The next day, Ameen met with his supervisor, Joseph Silva,
Operations Manager Raymond Pratt, and Director of Human Resources
Valerie Hartlan to discuss his request, as Amphenol's policy
requires management approval of personal leaves greater than two
weeks. At the meeting, Pratt expressed concern that the timing
"wasn't ideal" because it was a busy time for the company. Ameen
responded that he intended to go to Iraq whether or not the company
granted his request. Pratt warned Ameen that even if the company
approved his leave, they could not guarantee that he would be able
to retain his Group Leader position because "we may have to put
somebody . . . in that position to be able to . . . lead the
department." According to Silva, on a prior occasion when a Group
Leader took a leave of absence, the company placed another employee
in that position and moved the demoted Group Leader to another
shift. At some point during the meeting, Ameen agreed that he
would "help out" with overtime after his return from leave. Pratt
and Silva approved Ameen's leave, and upon his return, he retained
his position, salary, and benefits. Amphenol also spread out
Ameen's accrued vacation time over the weeks of his leave, to
ensure he could pay for his benefits.
2
The purpose of the trip was to get a birth certificate for
his son, and to "get his wife's maternity leave from her government
job in Iraq."
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B. Time Away
In the meantime, on April 12, 2012, while working prior
to the Iraq trip, Ameen failed to follow the proper procedure in
setting up a job on a drill machine. Thereafter, during his lunch
break, the machine stopped. When Ameen returned, he attempted to
rework the job, but he failed to communicate the mechanical issues
to his supervisor or anyone from the next shift, as was required by
company policy. The problem continued during the next shift,
resulting in lost production time.
The event was investigated and, according to Pratt, when
Ameen was confronted with the results of the investigation, he
"didn't hide that he made the mistake." The engineer who
investigated the event brought the issue to Operations Director
Christine Harrington, who concluded that Ameen had tried to "cover
up" his mistake by reworking the job without reporting it. On
April 16, 2012, Ameen was issued a written warning for not
following proper procedure. The warning stated, "this behavior is
unacceptable [and] cannot be tolerated. If this type [of] behavior
continues[,] further action may be taken up to and including
termination." Ameen signed the "Employee Statement" section of the
warning, agreeing that he "concur[red] with the Company's
statement." This was the second warning Ameen had received.3
3
In 2009, Ameen had received a written warning for failing to
follow proper procedure, resulting in "4 panels being scrapped."
-5-
C. Time Out
Ameen returned from his personal leave in late May.
Despite his earlier promise, Ameen continued to decline overtime.
Pratt admits expressing disappointment over Ameen's failure to sign
up for overtime as previously discussed. Ameen characterizes
Pratt's response as more than disappointment. He alleges that
Pratt "got mad" when he declined the overtime even though Pratt
knew Ameen needed time to be with his family.
On June 22, 2012, first shift Group Leader Paul Conners
reported to Pratt that two of Ameen's co-workers, Donny Moses and
Mike Sullivan, accused Ameen of "cheating on his timecard."
Specifically, Conners told Pratt that Ameen was "outside the
department for extended periods of time." Amphenol's policy allows
for a thirty-minute unpaid lunch break and a fifteen-minute paid
break, for a total of forty-five minutes of break time.
Following his conversation with Conners, Pratt contacted
Hartlan in Human Resources and asked her to gather Ameen's ADI
timecard records, as well as the data from the company's CCure door
security system that would show when Ameen had entered and exited
the building. These records revealed that Ameen would punch out of
the ADI system at some point every day for approximately thirty
minutes, but would continue working; then, at another time, he
would leave the property for approximately an hour. In this
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manner, he was compensated for an additional fifteen minutes of
time he did not work.
After reviewing the records, Pratt met with his
supervisor, Harrington, and she directed him to investigate
further. After personally observing Ameen during his shift while
he clocked in and out and remained at his post, Pratt reported back
to Harrington. She then reviewed Ameen's ADI and CCure records for
the previous two years. The records showed that Ameen had been
maintaining this practice for the entire two-year period.
Harrington decided Ameen should be fired, and she
directed Pratt to draft a termination notice. Pratt wrote a first
draft of the document, which referenced the ADI and CCure records
and stated that Ameen's practice of leaving for an hour a day
amounted to "stealing 2.5hrs a week from the company at a rate of
$17.19/hr or $2,234.70/year." That Ameen was "on his cell phone
throughout the shift" -- another violation of company policy -- was
also noted.
Pratt then met with Ameen's supervisor, Silva, and showed
him the draft. Silva told Pratt that a few years earlier, Ameen
had asked if he could combine his paid fifteen-minute break and his
unpaid thirty-minute lunch, so he could go home and eat with his
wife. Silva gave him permission, fully knowing that Ameen would
have to punch in and out for thirty minutes while still working.
-7-
However, a total of forty-five minutes was all he says he
authorized.
Pratt reported to Harrington that Silva admitted giving
Ameen permission to combine his two breaks; nevertheless,
Harrington still determined Ameen's termination appropriate for his
effectively stealing from the company by consistently taking
additional paid break time. Harrington's decision to terminate
also took into consideration the warning Ameen received two months
prior for "covering up" his production mistake. It is undisputed
that, at the time Harrington decided to fire Ameen, she did not
know he had taken FMLA leave. Further, she did not know he had
been declining to work overtime.
After his meeting with Harrington, Pratt revised the
termination document to note that Ameen's practice of taking a "1/2
hour paid break and 1/2 hour unpaid lunch" was "not policy, [and]
not approved by any [Amphenol] management." The final draft did
expressly acknowledge that, while the policy deviation was not
approved by senior management, Ameen had approval at the supervisor
level to take a forty-five minute break by combining his fifteen
minute paid and thirty minute unpaid breaks. Further, the draft
stated that the extra fifteen minutes of unauthorized break time
cost the company "1.25 hours of labor per week." The final version
also noted Ameen's falsified timecard routine, and the April 16,
2012 written warning he had received.
-8-
D. Time's Up
On June 27, 2012, Pratt met with Ameen to notify him of
his termination, and to review the termination document with him.
Pratt went over the ADI and CCure data with Ameen and explained he
was being fired for stealing time from the company. Ameen refused
to read or sign the termination document. Instead, he retorted, "I
know this is not about ten, [fifteen] minutes. This is about you
picking on me because I haven't been able to give you much overtime
because of my wife's situation. I [have] been taking FMLA leave."
According to Ameen, Pratt replied, "do you have proof of that?"
Ameen filed suit against Amphenol, alleging that Amphenol
violated the FMLA, 29 U.S.C. §§ 2601-2619, by retaliating against
him for taking family leave. Ameen claimed that his FMLA-protected
activity was a motivating factor in Amphenol's decision to
terminate his employment. Ameen characterized this activity as
including both his formal FMLA leave, and his decision not to work
overtime upon his return, which he terms "informal FMLA leave."
Amphenol moved for summary judgment. After entertaining oral
argument, the court granted judgment to Amphenol. In its ruling on
Ameen's retaliation claim, the district court employed a four-step
approach. First it "assume[d] that Ameen had carried the light
burden" of proving a prima facie case of retaliation. The court
then found that Amphenol had articulated a legitimate,
nondiscriminatory reason for its decision to terminate Ameen. The
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court next determined that, because Harrington did not know about
Ameen's FMLA-protected activity, Ameen would need to invoke the
cat's paw theory to impute Conners's or Pratt's animus to her as
the decision-maker. The "cat's paw theory" is employed when one
"seeks to hold his employer liable for the animus of a supervisor
who was not charged with making the ultimate employment decision."4
Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190 (2011). However,
the court concluded that Ameen "ha[d] produced no facts from which
a reasonable jury could conclude that either Conners or Pratt acted
in a way that would justify invocation of the cat's paw theory,"
and thus Ameen could not establish that Amphenol's reason was a
pretext for retaliation under the FMLA. The district court entered
judgment in favor of Amphenol, and this timely appeal followed.
II.
Standard of Review
We review the district court's grant of summary judgment
to Amphenol de novo, "assessing the record in the light most
favorable to the nonmovant and resolving all reasonable inferences
in that party's favor." Barclays Bank PLC v. Poynter, 710 F.3d 16,
19 (1st Cir. 2013) (internal quotations omitted). Summary judgment
4
With apologies to our fellow ailurophiles, we can report that
the name derives from a fable in which a cunning (and hungry)
monkey induces a cat by flattery to reach its paw into a fire to
extract roasting chestnuts; the monkey feasts alone on the
chestnuts after the cat scorches its paw. Id. at n.1.
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is properly granted "where 'there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.'" Id. (quoting Fed. R. Civ. P. 56(a)). "A dispute is
'genuine' if a reasonable jury, drawing favorable inferences, could
resolve it in favor of the nonmoving party." Velázquez-Pérez v.
Developers Diversified Realty Corp.,
753 F.3d 265, 270 (1st Cir.
2014) (internal quotations omitted). "Even in employment
discrimination cases where elusive concepts such as motive or
intent are at issue, summary judgment is appropriate if the non-
moving party rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Benoit v. Technical Mfg.
Corp.,
331 F.3d 166, 173 (1st Cir. 2003) (internal quotations
omitted).
III.
Discussion
Ameen makes several arguments on appeal, the major thrust
of which is that genuine issues of disputed facts exist, and
summary judgment was inappropriate because the district court
improperly weighed evidence and failed to draw all reasonable
inferences in his favor. Ameen further challenges the standard the
court employed for cat's paw liability, but argues that even
assuming the standard used was correct, the district court should
have denied summary judgment. We will discuss the finer points of
his arguments in context.
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Under the FMLA, employers are "prohibited from
discriminating against employees . . . who have used FMLA leave."
Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir.
1998) (citing 29 C.F.R. § 825.220(c)). Nor may an employer "use
the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions."
Id.
(quoting 29 C.F.R. § 825.220(c)). Ameen claims his FMLA-protected
activity was "a motivating factor" in his termination, and although
he argues that the protected activity included both his formal
leave and his refusing to work overtime, nowhere does he focus on
the formal FMLA leave. Instead, he contends that attitudes toward
him changed as a result of his refusing to work overtime for "FMLA-
protected reasons," and that his termination was motivated by
retaliation for that conduct. Because the question of whether the
employer took the adverse action for a legitimate or retaliatory
reason is analogous to the question of intent raised in Title VII
employment-discrimination actions, we employ the framework set
forth in McDonnell Douglas Corp. v. Green to analyze "the tricky
issue of motivation."
Id. (citing McDonnell Douglas Corp. v.
Green,
411 U.S. 792, 800-06 (1973)).
The McDonnell Douglas framework is a three-step
procedure. First, a plaintiff employee must carry the initial
burden of coming forward with sufficient evidence to establish a
prima facie case of discrimination or retaliation. McDonnell
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Douglas, 411 U.S. at 802. To meet this burden, Ameen must show
that "(1) he availed himself of a protected right under the FMLA;
(2) he was adversely affected by an employment decision; (3) there
is a causal connection" between his protected activity and
Amphenol's decision to terminate him.
Hodgens, 144 F.3d at 161.
If the plaintiff establishes a prima facie case, the burden shifts
to the employer "to articulate some legitimate, nondiscriminatory
reason" for the termination.
Id. at 160. If the employer can
proffer evidence "sufficient to raise a genuine issue of fact as to
whether it discriminated against the employee . . . the presumption
of discrimination drops from the case, and the plaintiff retains
the ultimate burden of showing that the employer's stated reason
for terminating him was in fact a pretext for retaliating against
him for having taken protected FMLA leave."
Hodgens, 144 F.3d at
160-61 (citing McDonnell
Douglas, 411 U.S. at 802, 804).
A. Prima Facie Case
The district court assumed that Ameen established a prima
facie case of retaliation, and further assumed without deciding
that his protected conduct included both his FMLA leave and his
decision not to work overtime after returning from his (non-FMLA)
personal leave. As Ameen's claim fails for the reasons we explain
below, we will take a similar tack. See Collazo-Rosado v.
University of Puerto Rico, 765 F.3d 86, 92-93 (1st Cir. 2014)
(noting "[t]he simplest way to decide a case is often the best,"
-13-
and assuming without deciding that the plaintiff had established a
prima facie case of retaliation, before holding that she failed to
present a triable issue of fact as to pretext).
B. Legitimate Reason
Having given Ameen the benefit of a prima facie
assumption, the burden shifts to Amphenol to provide a legitimate,
nondiscriminatory reason for its decision to terminate Ameen.
Amphenol asserts that Ameen was fired for stealing from the company
by consistently taking unauthorized paid break time. The company
also says it rightly considered Ameen's previous warning for
failing to follow procedure.5
Ameen challenges Amphenol's proffered reason for the
termination, but does not dispute the evidence which demonstrates
that he took an additional fifteen minutes or so of paid break time
consistently over a two-year period. In fact, in his brief, Ameen
admits to maintaining this practice for three years, but insists he
had permission to do so. Nonetheless, Ameen concedes that it was
conditioned upon his making up for the extra time.6 It is
5
Ameen does not challenge the warning he received in April,
although he now characterizes it as "exaggerated" and "unusually
detailed." However, he acknowledges he signed the warning and
checked off the box indicating he concurred with it.
6
On appeal, Ameen puts a spin on the notion of making up the
time. He claims that he was entitled to the extra time as long as
he "got his work done," irrespective of how long he remained at
work. It was sufficient, he argues, if he made up "fifteen minutes
of work (not time) during the day." Yet the record does not
support his factual assertion. During his deposition, Ameen
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undisputed that Ameen did not put in additional time to make up for
the extra fifteen minutes a day.
There is no question then, that as the district court
found, Amphenol had a legitimate basis to terminate Ameen; the
paramount question, however, is whether the district court erred
when it found Ameen had failed to raise a genuine issue of material
fact as to pretext, and that Amphenol was entitled to judgment as
a matter of law.
C. Pretext
Under the McDonnell Douglas framework, the burden thus
shifts back to Ameen to prove that Amphenol's stated reason was a
pretext intended to disguise its retaliation for his engaging in
FMLA-protected activity.7 To demonstrate that he was fired in
retaliation for engaging in FMLA-protected conduct, Ameen "must
show that the retaliator knew about [his] protected activity --
after all, one cannot have been motivated to retaliate by something
he was unaware of." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139
(1st Cir. 2013). This is where Ameen's case fails to land on its
admitted Silva conditioned the extra fifteen minutes upon Ameen's
coming in early or staying late to make up the time. It is
undisputed that Ameen never made up the time by either coming in
early or staying late off the clock. We note that the ADI system
tracked time to the minute, rather than the quarter hour.
Amphenol's employees were paid for the time they worked, not for
the amount of work they produced. Nothing in the record permits us
to conclude that Ameen was the one exception.
7
Again, like the district court, we assume without deciding
that Ameen's refusal to work overtime was FMLA-protected conduct.
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feet. It is undisputed that Harrington, who made the ultimate
decision to terminate Ameen, did not know that he had taken FMLA
leave, and did not know that he was declining overtime. Ameen's
only hope, then, lies in the cat's paw theory.
1. Cat's Paws
In invoking the cat's paw theory, Ameen attempts to prove
that either Conners or Pratt were motivated by animus when they
reported his timecard activities to Harrington. In Cariglia v.
Hertz Equip. Rental Corp., we held that corporate liability can
attach when a neutral decisionmaker "rel[ies] on information that
is manipulated by another employee who harbors illegitimate
animus." 363 F.3d 77, 86-87 (1st Cir. 2004) (holding that an
employee's supervisor's animus could be imputed to the
decisionmaker). Subsequently, the Supreme Court, in Staub v.
Proctor Hospital, determined that cat's paw liability can attach if
an employee performs an act motivated by animus that is intended to
cause an adverse employment action, and if that act is a proximate
cause of an adverse employment action.
131 S. Ct. 1186, 1190, 1194
(2011) (applying the Uniformed Services Employment and Reemployment
Rights Act to a case involving antimilitary animus). Both cases
involved supervisors who provided false or misleading information
to a decisionmaker.
Ameen argues that the district court incorrectly applied
a "heightened standard" by reading Cariglia to require that the
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information provided to a decisionmaker must be "inaccurate,
misleading or incomplete." Rather, Ameen contends that the Staub
standard should apply, which he suggests is more liberal than
Cariglia's. According to Ameen, Staub does not require the
reporting of inaccurate or misleading information; instead, all
that is needed is an act by an employee (i.e. the reporting of even
accurate information) motivated by animus that is intended to
cause, and indeed does cause, an adverse employment action.
However, we have no need to parse these two interpretations as
Ameen misses the critical point in both cases; both standards
absolutely require a finding that the person who provided the
information was motivated by retaliatory animus. Accordingly, on
that front, they are but two paths to the same end, taking as their
first step a finding of retaliatory animus. It is upon that step
that Ameen's claim trips.
2. Animus Claims Against Conners
To prevail in his claim, Ameen must establish that
Amphenol's reason for terminating him was a pretext for retaliatory
animus. Ameen contends that the district court overlooked evidence
that would establish that the employees who reported the
information about his break time to the ultimate decisionmaker were
motivated by animus. Beginning with first shift Group Leader
Conners, Ameen argues that Conners's very reporting to Pratt
(Operations Manager) the information he received from Moses and
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Sullivan (Ameen's co-workers and subordinates) about Ameen's
extended breaks is proof of retaliatory animus because of how
differently Conners dealt with his own subordinates on this issue.
Ameen argues that when Conners's subordinates took additional break
time, he only chastised them for doing so, but never otherwise
disciplined them, nor reported them to higher-ups. On this point,
Conners's unrebutted deposition testimony established that when a
member of his crew was "five minutes late" returning from break, he
spoke to them about it and received the assurance that "it won't
happen again." Had the behavior been repeated, Conners stated that
he would have "elevate[d] that to the supervisor." Ameen points to
no other similarly-situated employee who consistently took an extra
fifteen minutes off every day as he did who received more favorable
treatment from Conners. Given these facts, Conners's mere
reporting of Ameen up the corporate food chain is insufficient to
demonstrate animus.8
Ameen also posits, in support of his animus claim, that
Conners was "hostile" towards him because Conners was "frustrated"
about having to work overtime due to Ameen's no-overtime schedule.
8
After this lawsuit was filed, Amphenol took note of Ameen's
allegation that "[o]ther employees in [his] department followed the
same practice," and conducted an investigation. The ADI and CCure
records showed that from January 2012 to June 2012, the co-tipster
Donny Moses had been clocking out while remaining at work, then
leaving for an hour. Like Ameen, Moses was then terminated.
There is no evidence that Amphenol knew of this practice before
Sullivan -- and ironically, Moses -- brought Ameen's conduct to
Conners's attention.
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Other than pointing to Conners having reported Ameen's extended
breaks to superiors, Ameen gives us no other explanation or
evidence of this hostility. Conners denied any display of
frustration, and stated that he reported the information to Pratt
because, as a twenty-five year employee, "I wouldn't cheat on my
time, and I don't expect other people to do that. That's
stealing." Regardless of Ameen's opinion on what may have
motivated Conners to report his extended break times, his
"subjective belief in retaliation is not enough" to show animus on
Conners's part, and no objective evidence in the record supports
his animus theory. Roman v. Potter, 604 F.3d 34, 41 (1st Cir.
2010).
3. Animus Claims Against Pratt
Alternatively, Ameen describes a number of ways in which
Pratt's behavior demonstrates animus. First, and identical to his
Conners argument, he says that because Pratt had never before
escalated the issue of extended breaks to Harrington when dealing
with allegedly similarly-situated employees, the fact that he
elevated the issue of Ameen's break time to Harrington is proof
sufficient to infer animus. In rebuttal, Amphenol repeats it had
never before encountered a case in which an employee had
consistently combined two breaks and then took an additional
unauthorized quarter hour on top of that. Nothing in the record
contradicts this assertion.
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Moreover, Pratt did not just pass along the tip after
receiving it; he conducted his own investigation by requesting and
reviewing Ameen's ADI and CCure records for the previous month; and
only when he had satisfied himself that the alleged practice was
actually occurring did he bring the matter to Harrington. The mere
fact of an investigation -- particularly one spurred by a violation
of company policy -- is not proof of animus and nothing else in the
record suggests that the investigation was motivated by animus. It
bears repeating that "[e]ven in employment discrimination cases
where elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the non-moving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Benoit, 331 F.3d at 173 (internal
quotations omitted). The record before us does not support Ameen's
allegations.
Second, and grasping for straws, Ameen contends in
support of his animus claim that Pratt misled Harrington about the
warning Ameen had received in April, leading her to believe that a
"cover up" occurred. Specifically, Ameen states that he "was not
asked about the error on the night in question, and clearly
admitted the mistake to Pratt when asked, and therefore Pratt
acknowledged that there was no effort to cover up the mistake."
The record, however, makes plain that Ameen is playing cat and
mouse with the facts. That he was not asked about the error on the
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night in question is irrelevant if clear company protocol required
that he relay that information when "tying off" with the next
shift. Harrington stated that she reached her own independent
conclusion that Ameen "tried to cover up a scrap event" when the
investigating engineer "was able to show that the panel had been
drilled twice, the first time with an incorrect setup, the second
time to fix the problem that had been created by the first issue."
It was that action, of covering up a work mistake and not following
reporting procedure, to which Harrington referred. That Ameen
admitted to the mistake once confronted with it by Pratt is beside
the point. There is no evidence that Pratt misled Harrington about
the nature of the event, and no evidence that his reporting the
information was motivated by animus.
Third, Ameen next cites as proof of animus that Pratt
both "withheld" from Harrington the fact that he "had permission to
misuse the timeclock system," and failed to apprise Harrington of
Ameen's earlier FMLA leave. Harrington made clear, however,
without contradiction, that it was Ameen's taking of an additional
fifteen minutes of time each day -- not the use of the time clock
system per se -- that she viewed as terminable misconduct. As for
not sharing with Harrington Ameen's FMLA schedule, he does not
explain why Pratt should have done so, nor does he tell us why not
doing so demonstrates animus.
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Lastly, in support of his Pratt animus argument, Ameen
claims that Pratt was angry that he wouldn't work overtime.
However, Ameen does not tell us the basis for this impression, and
does not recount specific words or any particular behavior that
would indicate anger. He offers us only a conclusory allegation.
Further, he says that both Pratt and Conners "had shown hostility
toward [his] FMLA-protected activity," and that Pratt's attitude
toward him changed after he returned from FMLA leave. Ameen
directs us to only one specific example of so-called hostile
conduct -- his inclusion, according to Silva, on Pratt's purported
"I don't like" list.9 However, even assuming the existence of such
a list, there is no evidence to tie it to Ameen's FMLA-protected
conduct. Similarly, there is nothing to connect Ameen's general
and vague allegations of hostility by Pratt to Ameen's FMLA-
protected activity, if any, rather than to his unauthorized breaks.
"[A]lthough an employee who properly takes FMLA leave cannot be
discharged for exercising a right provided by the statute, [he]
nevertheless can be discharged for independent reasons." Henry v.
United Bank, 686 F.3d 50, 55 (1st Cir. 2012).
Moreover, we note that evidence in the record completely
contradicts Ameen's assertion of animus on Pratt's part. During
9
Although Ameen claims that Silva told him about Pratt's
supposed list, there is no deposition testimony in the record from
either Silva or Pratt about any list. How Ameen's account could be
admissible evidence is beyond us.
-22-
this period of claimed anger and hostility, Pratt agreed to allow
Ameen to take over three weeks of personal leave shortly after his
FMLA leave, when he had the discretion to refuse; and Pratt allowed
it despite Ameen's statement that he would go whether or not the
personal leave was approved. If Pratt were looking for a reason to
get rid of Ameen for exercising his FMLA rights, he could have
simply denied the personal leave and fired Ameen if he went anyway.
Instead, Amphenol "spread out" Ameen's vacation days over the
course of the leave, so that his benefits would be covered.
CONCLUSION
As stated earlier, Ameen has the burden of proving that
Amphenol's stated reason for his termination was a pretext, and
because Amphenol proffered a legitimate basis for terminating
Ameen, he must do so "without the benefit of the animus
presumption."10 Id. at 56. To prove pretext, he had to establish
the existence of retaliatory animus on the part of either the
decisionmaker, or the employee who purportedly manipulated the
decisionmaker into acting as his "cat's paw." Once the presumption
of animus creeps out, Ameen cannot clear this initial step. Ameen
has not offered evidence of retaliatory animus on anyone's part
10
Nevertheless, Ameen claims that because he "satisfied the
causation requirement for [his] prima facie case," his proffered
evidence of pretext should be sufficient to defeat summary
judgment. It is not. Although we assumed Ameen established a
prima facie case, once Amphenol articulated a legitimate,
nondiscriminatory reason for the termination, there was no basis to
carry that assumption forward into the pretext analysis.
-23-
sufficient to raise a disputed question of fact, or to defeat
Amphenol's right to judgment as a matter of law. Absent
retaliatory animus, there can be no pretext. Our de novo review
reveals that Ameen's cat's paw theory is effectively declawed.
Accordingly, we affirm the district court's entry of summary
judgment. Each side shall bear its own costs in this appeal.
- Concurring Opinion Follows -
-24-
KAYATTA, Circuit Judge, concurring.
I concur in affirming the judgment of the district court
dismissing the complaint, albeit for a reason the majority does not
reach. No party disputes that Operations Director Christine
Harrington was the person who in both form and substance decided to
fire the plaintiff. Ameen does not point to any evidence
suggesting that, having independently confirmed that Ameen did
commit the serious misconduct with which he was charged, Harrington
either herself had any improper motive, or that she knew or
reasonably should have known that Pratt had an improper motive.
Therefore, even if we accept that Ameen has enough evidence to
support a finding that Pratt was motivated to seek his discharge
for reasons other than the conduct reviewed by Harrington, there
would still be no basis for holding his employer vicariously
liable. Cf. Vélazquez-Pérez v. Developers Diversified Realty
Corp., 753 F.3d 265, 274 (1st Cir. 2014) (holding that an employer
can be held liable for a co-worker's discrimination under Title VII
if, among other things, the employer "knows or reasonably should
know" of the discrimination) (parentheses omitted).
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