United States Court of Appeals For the First Circuit
No. 19-1174
CHRISTOPHER O. BRANDT,
Plaintiff, Appellant,
v.
JOSEPH FITZPATRICK, in his official capacity as the Commissioner of the Maine Department of Corrections; SCOTT LANDRY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
Cynthia A. Dill for appellant. Kelly L. Morrell, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Susan P. Herman, Deputy Attorney General, were on brief, for appellees.
April 22, 2020 THOMPSON, Circuit Judge. Corrections Officer
Christopher O. Brandt left his job at the Maine Department of
Corrections ("MDOC") for a spot in the federal prison system. When
the federal job didn't work out, Brandt reapplied for his old job,
but MDOC wouldn't take him back. He sued MDOC for race
discrimination and retaliation, but he lost. He now appeals the
district court's grant of summary judgment against him. In a
nutshell, since he lacked the proof needed to reach trial, we
affirm.
I. BACKGROUND1
Brandt is a navy veteran who's spent most of his career
providing security for the federal government, including seven
years as a corrections officer in New York and seven as a special
agent at the Department of State. Then, he moved to Maine. From
late 2012 through January 2014, he worked for the MDOC as a state
corrections officer at the Maine Correctional Center ("MCC") in
Windham. But Brandt's sights were trained elsewhere; throughout
his two-year stint as a state prison guard, he applied every few
months to positions on MDOC's "probation side" — to be a probation
officer or probation officer assistant. If he'd gotten the job,
Brandt would have been MDOC's only African American probation
1In laying out the facts, we view the evidence from Brandt's perspective, drawing all reasonable inferences in his favor. See Robinson v. Town of Marshfield, 950 F.3d 21, 24 (1st Cir. 2020).
- 2 - officer. But he had no such success. Brandt met the minimum
qualifications and interviewed for each open spot,2 but the
probation-side brass turned him down each time.
Defendant Scott Landry was among the deciders. At the
time, he was the administrator in charge of MDOC region 2. Along
with two other panelists, Landry interviewed Brandt for two
probation officer slots in January 2013. But, concerned that
Brandt described himself as a rigid "black and white" thinker
(since probation officers often face complex human situations
requiring creative thinking) and had no experience as a probation
officer (meaning he'd need "close supervision and support" as he
began the job), they picked two other (non-black) candidates, a
former federal probation officer and an MDOC probation officer
assistant, instead.
That spring (on April 12, 2013), Brandt wrote Joseph
Ponte, then Commissioner of the MDOC (and not a party here), to
express concerns about the MDOC hiring process. The letter began:
Dear Commissioner Ponte:
I am writing to praise you for breaking-up the, "good ole boy network" in the prisons and applaud your efforts in embracing diversity, in the Great State of Maine, by seeking qualified applicants that truly reflect the multi-cultural communities we serve. I am a Black male with over 15 years experience in Federal law enforcement, which includes
2 At the time, MDOC gave interviews to internal applicants like Brandt if they met the minimum qualifications for the open position.
- 3 - investigations and I possess a Masters degree. I currently work at the [MCC] as a Correction Officer. I truly enjoy working at MCC and for the [MDOC]. The administrative staff at MCC . . . truly embrac[es] diversity and foster[s] an environment of inclusion for all Correctional Staff without regards to race, gender, or ethnicity.
Then came the "but." Switching gears, Brandt went on:
"In my opinion, the 'good ole boy network' that you have worked so
hard to eliminate thrives in other divisions within the [MDOC],"
meaning "the Division of Probation and Parole." According to
Brandt, the hirers there had told him he "did not meet the
criteria" for a probation spot, which Brandt found "odd" given his
master's degree, experience in the federal system, and "vast
knowledge, skills[,] and abilities." That brought him to his
point:
Mr. Commissioner, the purpose of this letter is to make you aware that there are individual [sic] within the [MDOC] who has not adhered to the high diversity standards that you have set. Although I am seeking better clarity on what the minimum requirements are for the positions I recently applied [to], I feel it's best to notify you regarding the problems I feel exists. . . .
Respectfully,
Christopher O. Brandt
Commissioner Ponte convened a conference call with the
regional administrators to discuss Brandt's letter. Landry was on
the call. Somehow — either from the call or through the grapevine
— Landry learned around that time that Brandt had made the
- 4 - complaint. But as Landry told it in his deposition, no one on the
call mentioned race or discrimination. And at the time, Landry
hadn't seen the letter or heard that it raised concerns about
diversity. Instead, says Landry, Ponte broached only whether "the
probation side of the house was giving fair consideration" to
applicants from the prison side. In any case, Landry doesn't
recall if the talk prompted any changes to the hiring process.
Nothing changed for Brandt, anyway. After sending the
letter, in August 2013, he applied for two more probation spots
without success. By that time, Landry had moved to his current
role as the Warden of MCC and no longer took part in probation
officer hiring. But just as before, the interview panelists passed
over Brandt to select a candidate who was already working as a
probation officer assistant for MDOC and had past experience as a
child protective caseworker. MDOC didn't fill the other position,
which was "placed on hold" indefinitely.
On November 20, 2013, Brandt filed a formal complaint
with the Maine Human Rights Commission (the "MHRC") alleging that
MDOC had discriminated against him based on his age and race.
A month later — after one more fruitless interview with
MDOC probation — Brandt recognized that (in his words) he "was
having no luck advancing" within MDOC, "felt discriminated against
by the Probation Division," and thought he'd have better prospects
for "advancement" if he went back to the feds. So he applied to
- 5 - work as a federal corrections officer at the Federal Correctional
Institution in Berlin, New Hampshire. Given his tenure as a
federal corrections officer in New York years before, he was
confident he'd get the job; and sure enough, in mid-December, FCI
Berlin called to offer him the slot. According to Brandt, he was
slated to start there in early February 2014. So just before the
new year, he resigned from the MCC, effective January 8.
But that's when things really went south. In mid-
January, Berlin backtracked, telling Brandt that due to a budget
sequestration, the prison couldn't hire any new employees until
further notice. With his federal job up in the air, Brandt turned
back to MDOC; over the next four months, he applied to four open
positions with the department, including his old position at MCC.
But MDOC wouldn't take him back. From the get-go, Landry (now
Warden of MCC) and his deputy, Gary LaPlante, suspected that Brandt
intended to use MCC as temporary safety net. When Brandt applied
for rehire in late February, LaPlante emailed Landry that when he
"recently spoke to [Brandt,] it sounded like he was going back to
the [federal] Bureau of Prisons." (A few weeks prior, right after
LaPlante interviewed Brandt for another MCC position, they
discussed Brandt's application to FCI Berlin and Brandt told
LaPlante there was a "hold up" due to a hiring freeze). Under the
circumstances — Brandt had "just left," after all — Landry feared
- 6 - he "would [] come back, stay for a short time, and then leave
again." Landry Dep. at 82.
So when LaPlante reported he caught Brandt in a lie,
that was all it took.
Here's how it happened. Given his concerns about
Brandt's commitment, Landry asked Brandt's old manager, Valerie
Norman, to conduct an informal interview with him to ask about
"his reason for his interest in coming back to work for the
[MDOC]." During the interview, on March 11, Brandt told Norman
that the job with FCI Berlin "fell through due to a hiring freeze"
and that he wanted to return to MDOC and work toward a promotion,
which she passed on to Landry and LaPlante the next day. LaPlante
doubted Brandt's explanation because (as the parties agree) "based
on his contacts in the correctional field," he was "under the
impression that FCI Berlin was not under a hiring freeze."3 So he
did some sleuthing. When he got Norman's email, LaPlante called
an HR rep at Berlin, who told him that Berlin was not under a
hiring freeze, and that even when the federal hiring freeze was in
effect, Berlin had a waiver due to a staffing shortage at that
facility. LaPlante also asked about Brandt's job application, but
3 When pressed on it in his deposition, LaPlante testified that he does not recall exactly why he believed in early 2014 that Berlin was still hiring corrections officers.
- 7 - the staffer was "evasive" about that (saying that "she could not
get into those matters, or something to that effect"). LaPlante
Dep. at 37. Anyway, based on that phone call, LaPlante (as the
parties also agree) "believed that Brandt had lied" about there
being a Berlin hiring freeze, and sent an email to Landry reporting
what he'd learned from Berlin HR and recommending that Brandt not
be rehired.
Considering LaPlante's report, Landry concluded that
Brandt had been "untruthful" about the Berlin situation and decided
to reject his application for reinstatement. He doesn't recall
whom he hired instead.
As it turns out, there was indeed a federal hiring freeze
(and had been for three years) until February 10, 2014, when
Attorney General Eric Holder lifted it. To be clear, the freeze
was lifted after FCI Berlin notified Brandt he couldn't start work
and before LaPlante called Berlin HR to fact-check Brandt's story.
The record doesn't clear up whether Berlin ever did have a
"waiver," as LaPlante's source reported. But since someone at
Berlin told Brandt the hiring freeze prevented the prison from
taking him on board, we'll assume (drawing all reasonable inference
in Brandt's favor as we must) that Berlin was indeed subject to
- 8 - the freeze. In other words, despite what the LaPlante and Landry
believed, Brandt told Norman the truth.4
That brings us to this case. Brandt sued Landry and
MDOC5 in federal court for age discrimination, race discrimination,
and retaliation. In his complaint, Brandt took issue with both
the probation department's repeated rejections of his job
applications and the correction side's decision not to rehire him.
4A week after Landry decided not to rehire him, Brandt filed an amended charge with the MHRC alleging retaliation. Landry didn't know about that charge, or the original one alleging race discrimination, until April 2014 — after all this happened. And as we'll explain, there's no evidence that LaPlante knew about it either. 5Actually, Brandt sued Landry's boss, Jonathan Fitzpatrick, in his official capacity as the Commissioner of MDOC, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (or the ADEA). But Title VII doesn't license suits against employees like Fitzpatrick and Landry in their individual capacities, see Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009), and "[w]e have ruled that a Title VII claim brought against a supervisory employee in his official capacity as an agent of the employer operates as a claim against the employer," Ríos-Colón v. Toledo-Dávila, 641 F.3d 1, 4 (1st Cir. 2011). The district court applied the same principles to Brandt's ADEA claims against Fitzpatrick (which aren't at issue on appeal). See Brandt v. Fitzpatrick, No. 1:15-CV-461-NT, 2016 WL 7115969, at *3 (D. Me. Dec. 5, 2016). So like the parties and the district court, we'll discuss Brandt's claims against Fitzpatrick as claims against MDOC. In contrast, Brandt sued Landry and Lisa Nash in their individual capacities under 42 U.S.C. § 1983. As we'll explain, Brandt dropped his § 1983 claim against Nash after discovery, and the district court granted summary judgment on his § 1983 claims against Landry along with his Title VII claim against MDOC. And on appeal, Brandt presses only the Title VII claims against MDOC.
- 9 - He alleged that his age and his race motivated all those
rejections, and that Landry nixed his reinstatement application to
retaliate against him for complaining to Commissioner Ponte and
the MHRC. He initially tacked on a third defendant, Lisa Nash,
who (along with Landry) interviewed Brandt for one of the 2013
probation slots. After discovery, however, Brandt dropped his age
discrimination claim and his claims against Nash, leaving only his
plaints that Landry and (vicariously) MDOC rejected his
applications for probation-side positions and refused to rehire
him based on his race and his discrimination complaints to Ponte
and the MHRC. He insisted that in doing so, Landry became liable
under 42 U.S.C. § 1983 and MDOC violated Title VII of the Civil
Rights Act of 1964. Ultimately, the judge disagreed and granted
Landry and MDOC's ensuing motions for summary judgment on those
remaining claims. Brandt appeals that ruling, but only as to his
Title VII claims against MDOC.
II. LAW
A. Summary Judgment Standard
We review the grant of summary judgment de novo,
affirming only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Pina v. Children's Place, 740 F.3d 785, 795
- 10 - (1st Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)). That means we draw all reasonable inferences in
Brandt's favor; but we won't "draw unreasonable inferences or
credit bald assertions, empty conclusions," or "rank conjecture."
Id. (quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d
1, 8 (1st Cir. 2007)). "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." Ray v. Ropes & Gray LLP, 799 F.3d 99,
116–17 (1st Cir. 2015) (quoting Benoit v. Tech. Mfg. Corp., 331
F.3d 166, 173 (1st Cir. 2003)).
B. Title VII: Overview
On appeal, Brandt accepts the fate of his probation-side
claims, but he insists that a reasonable jury could find either
that racial stereotypes influenced Landry's decision not to rehire
him or that the rejection was pay-back for Brandt's complaints to
Commissioner Ponte and the MHRC. For that reason, he asks us to
resurrect his claims for race discrimination and retaliation
against MDOC under Title VII of the Civil Rights Act of 1964.6
6 As we noted earlier, Brandt does not appeal the dismissal of his § 1983 claims against Landry in his individual capacity. And remember, only employers like MDOC (or supervisors in their official capacity as agents of the employer) may be sued under Title VII. See Ríos-Colón, 641 F.3d at 4; Fantini, 557 F.3d at 30.
- 11 - Thanks to that statute, employers like MDOC may not "fail
or refuse to hire" someone "or otherwise . . . discriminate against
[him] with respect to his compensation, terms, conditions, or
privileges of employment, because of [his] race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As we've
repeatedly recognized, those words prohibit all discriminatory
"practices in whatever form which create inequality in employment
opportunity," Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st
Cir. 1999) (quoting County of Washington v. Gunther, 452 U.S.
161, 180 (1981)), reaching beyond conscious racism to root out
"stereotyped thinking" and "other forms of less conscious bias" in
employment decisions, id. at 42, 58–61 (citing Price Waterhouse
v. Hopkins, 490 U.S. 228, 239–58 (1989)); see also Ahmed v.
Johnson, 752 F.3d 490, 503 (1st Cir. 2014) ("Title VII should 'not
be applied in a manner that ignores the sad reality that
[discriminatory] animus can all too easily warp an individual's
perspective to the point that he or she never considers the member
of a protected class the 'best' candidate regardless of that
person's credentials'" (quoting Bray v. Marriott Hotels, 110 F.3d
986, 993 (3d Cir. 1997)).
Title VII also forbids an employer to retaliate against
an employee for "oppos[ing] any [discriminatory] practice" by (for
example) filing legal complaints (like Brandt's MHRC charge) or
complaining to a supervisor about discrimination (like Brandt did
- 12 - in his letter to Ponte). Franchina v. City of Providence, 881
F.3d 32, 45 (1st Cir. 2018) (quoting 42 U.S.C. § 2000e-3(a)). But
since the parties start with Brandt's status-based (§ 2000e-
2(a)(1)) claim, we will too.
C. How to Prove Race Discrimination
Plaintiffs rarely have eyewitness or "smoking gun"
evidence that reveals an employer's discriminatory motives.
Theidon v. Harvard Univ., 948 F.3d 477, 495 (1st Cir. 2020)
(quoting Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 88
(1st Cir. 2018)). But there are several ways to do so without it.
One path is the familiar McDonnell Douglas burden-
shifting framework, named for the case that christened it. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).
Under that theory, evidence that the plaintiff belongs to a
protected class and qualified for the position, but that the
employer chose an equally or less qualified applicant instead,
creates a "presumption that the employer unlawfully discriminated
against [him]." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981)). Once the applicant makes out this "prima facie
case," the employer, to avoid liability, has to give "some
legitimate, nondiscriminatory reason for the employee's
rejection." McDonnell Douglas, 411 U.S. at 802. If the employer
provides such an explanation, "the sole remaining issue is
- 13 - discrimination vel non"; and the plaintiff must "show by a
preponderance of the evidence that [the employer's] proffered
reason is pretextual and that the actual reason for the adverse
employment action is discriminatory." Theidon, 948 F.3d at 495–
96 (internal quotation marks omitted).
But McDonnell Douglas didn't pave the only road to relief
for a plaintiff alleging status-based discrimination under Title
VII. That's because a hirer's decision-making can violate the
statute even if the plaintiff's race wasn't the single, "true
reason" for the final decision. Price Waterhouse, 490 U.S. at
247. Rather, in passing Title VII, Congress "meant to condemn
even those decisions based on a mixture of legitimate and
illegitimate considerations," even if, in hindsight, a court might
determine "that the [hiring] decision would have been the same if
[the protected trait] had not been taken into account." Id. at
241. In such a "mixed-motive" case, the plaintiff can prove a
violation if he shows that race was one "motivating factor" in the
rejection, even if other reasons also played a role. Desert
Palace, Inc. v. Costa, 539 U.S. 90, 94, 101–02 (2003) (holding
that circumstantial evidence alone can sustain a mixed-motive
verdict) (quoting 42 U.S.C. § 2000e–2(m)). If the plaintiff
succeeds, the employer still has a "limited affirmative defense"
if it can show it would have made the same decision even if race
hadn't factored in (meaning race wasn't the "but-for" cause of the
- 14 - failure to hire). Id. at 94 (citing 42 U.S.C. § 2000e-5(g)(2)(B)).
But that defense is "limited" because it only staves off damages
and compelled reinstatement — not liability, other injunctive
remedies, declaratory relief, or attorneys' fees and costs. Id.
III. OUR TAKE
A. Brandt's Race-based Claim
On appeal, Brandt takes the mixed-motive route. But
under both frameworks, he had to show that Landry relied "at least
in part" on racial bias or animus when he rejected Brandt's
application for reinstatement. Burns v. Johnson, 829 F.3d 1, 12
(1st Cir. 2016) (quoting Chadwick v. WellPoint, Inc., 561 F.3d 38,
45 (1st Cir. 2009)). So "[o]ur decision here . . . is not dependent
on analyzing [his] claim under each of these theories." Id.
Whichever way you slice it, he comes up short.
Brandt's argument boils down to four points. Since the
first two are related, we'll address both of them before tackling
points three and four in turn.
First, Brandt urges that the way Landry treated Brandt
during the January 2013 probation interview, and the way he
described Brandt later, suggest that Landry relied on stereotypes
about African Americans to assess Brandt's temperament, intellect,
and "critical thinking" skills. Appellant's Br. at 22—23. He
says that unlike in any of his other law enforcement interviews,
Landry and his fellow panelists were all armed. And after thirty
- 15 - to forty minutes, Landry cut the interview short and another
interviewer "escorted" Brandt out. Brandt Dep. at 110. What's
more, Landry jumped to the conclusions that Brandt was a "black
and white" thinker who'd need "close supervision" on the job
without support in Brandt's file or interview responses.
Second, Brandt says the same stereotypes caused Landry
to believe LaPlante over Brandt in the "hiring freeze" kerfuffle
a year later. After all, Brandt was a Navy veteran entrusted to
perform other high-level security positions, performed his job at
MCC satisfactorily, and others in MDOC who'd interviewed Brandt
rated his "ethics and integrity" as "excellent" and "relatively
advanced." On the other hand, LaPlante's report to Landry accusing
Brandt of lying about a Berlin hiring freeze was inconsistent with
this evidence of Brandt's upstanding character. Plus, LaPlante
got his information "outside the normal hiring channels" without
Landry's express authorization, and it turned out to be false
(because despite what LaPlante reported, Brandt's federal job did
fall through due to a hiring freeze). Appellant's Br. at 25. So
(Brandt urges) an unbiased manager would've believed Brandt.
In Brandt's mind, these first two points together show
that Landry had a cognitive bias against Brandt because he is
African American. To be clear, as we see it, Brandt doesn't argue
that Landry intended to discriminate: e.g., that he conspired
with LaPlante to conjure up a race-neutral pretext or that he knew
- 16 - LaPlante's investigation was bogus but relied on it anyway. See
Robinson v. Town of Marshfield, 950 F.3d 21, 26 (1st Cir. 2020)
(acknowledging that "an employer may be deemed to have acted
pretextually if it relies for its actions toward an employee on
the conclusions of an investigation that the employer knows to
have been a sham"). Instead, Brandt makes a more nuanced claim:
that under the circumstances, the fact that Landry "accepted
LaPlante's accusation at face value without giving Brandt an
opportunity to explain" is evidence of a harmful stereotype of
"black dishonesty" which skewed his judgment. Appellant's Br. at
25. In other words, his theory more closely tracks the
stereotyping claim we accepted in Thomas, 183 F.3d at 58 (holding
that when an employer "evaluates employees of one race less
favorably than employees of another race who have performed
equivalently," and does so based on race, it violates Title VII
"regardless of whether the employer consciously intended to base
the evaluations on race, or simply did so because of unthinking
stereotypes or bias"). Essentially, Brandt contends that a jury
could find that even if Landry wasn't conscious of it, he believed
LaPlante's representation was more trustworthy than Brandt's
because LaPlante is white and Brandt is black.
As previously noted, before we get to Brandt's last two
points, we'll address these first two — both of which go to
Landry's mindset — and explain why they fail to persuade. In
- 17 - short, neither the 2013 probation interview nor the 2014 "hiring
freeze" debacle reasonably show that racial bias motivated Landry
not to take Brandt back.
1. The 2013 Probation Interview
Starting with Brandt's first point, neither Landry's
sidearm nor his considerations during the 2013 probation-side
hiring process reasonably suggest that race-based bias shaded his
thinking either back then or a year later, when Brandt applied for
rehire. Brandt admitted in his deposition that MDOC probation
officers typically carry guns, and there's no evidence that Landry
or the other panelists disarmed when they interviewed other
applicants, that any interviews lasted longer than Brandt's (in
fact, Brandt admits they were all asked the same questions), or
that other interviewees were not similarly escorted out of the
room. What's more, Brandt described himself in the interview as
having a "black and white" view on drugs and didn't dispute that,
given his lack of experience on the probation side, he would indeed
need "close supervision and support at the beginning of the job."
To round things off, he also doesn't dispute that the two
candidates who got the jobs were the "most qualified candidate[s]"
for each opening, and (unlike Brandt) both had past experience as
caseworkers: again, one was a probation officer assistant at MDOC
- 18 - and a former child protective caseworker, and the other was a
federal probation officer.7
2. Hiring Freeze Debacle: Believing LaPlante Over Brandt
So we turn to 2014, when (according to Brandt) Landry
rejected his rehire request based on "bad information that branded
[Brandt] a liar." Brandt v. Fitzpatrick et al., C.A. No. 15-461-
NT, slip op. at *17 (Jan. 16, 2019). As Brandt's second line of
attack, he insists that Landry's choice to trust LaPlante (who is
white) over Brandt about the hiring freeze also shows Landry's
race-based bias. We don't doubt that, as Brandt maintains,
centuries-old stereotypes portraying African Americans as less
trustworthy than whites can creep into employer decision-making,
just as they've been documented to do in other contexts. See Sheri
Lynn Johnson, Racial Imagery in Criminal Cases, 67 Tul. L. Rev.
7 In the parties' consolidated statement of material facts below, Brandt "admitted" that the probation officer assistant was the most qualified candidate for one of the positions. As for the defendants' statement (supported with citations to the record) that "the panel recommended [the federal probation officer] for the second position because he was the most qualified candidate," Brandt responded: "Qualified. [That candidate] lacked 'actual experience working w/case management.'" The District of Maine's Local Rules provide that "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Rule 56(f), Local Rules of the U.S. District Court for the District of Maine. Since Brandt didn't deny in his response that the candidate was nevertheless the "most qualified" for the position, we deem that statement admitted (as we do with other statements to which the parties responded "qualified" but did not specifically deny).
- 19 - 1739, 1756 (1993) (cataloguing examples of such stereotypes being
invoked in prosecutorial summations). But on this record, we see
no evidence that stereotyped thinking influenced Landry to believe
LaPlante's report that FCI Berlin was always hiring over Brandt's
statement that they weren't.
That Landry was wrong or just unreasonable to trust
LaPlante over Brandt doesn't cut it. After all, "the anti-
discrimination laws do not insure against" an employer's
"inaccuracy or flawed business judgment"; rather, "they are
designed to protect against, and to prevent, actions spurred by
some discriminatory animus." Kouvchinov v. Parametric Tech.
Corp., 537 F.3d 62, 67 (1st Cir. 2008). So, "to survive summary
judgment, '[i]t is not enough for [a plaintiff] merely to impugn
the veracity of the employer's justification' or to point to flaws
in [the employer's] investigation." Rodríguez-Cardi v. MMM
Holdings, Inc., 936 F.3d 40, 48–49 (1st Cir. 2019) (explaining
that, "when faced with employment decisions that lack a clear
discriminatory motive, '[c]ourts may not sit as super personnel
departments, assessing the merits — or even the rationality — of
employers' nondiscriminatory business decisions") (quoting Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 824–25 (1st Cir. 1991)). "Even
the most blatant unfairness cannot, on its own, support a Title
VII claim . . . unless facts and circumstances indicate that
- 20 - discriminatory animus," or bias, "was the reason for the decision."
Thomas, 183 F.3d at 64 (internal quotation marks omitted).
To illustrate, if Landry had doubted Brandt's candor
without "any factual basis" despite Brandt's clean record and high
ethics ratings, in circumstances (e.g., where an equally or less-
qualified white man got the job) that suggested bias was the
reason, Brandt's claim might have had legs. Burns, 829 F.3d at
14–15 (holding that a female employee had a triable case that her
supervisor's sex-based bias motivated him to reassign her
responsibilities to male employees in part because he questioned
her work ethic, but not that of her male peers, and demeaned her
otherwise well-regarded work product for no apparent reason);
Thomas, 183 F.3d at 64 (same where new supervisor scored the
plaintiff, the only black employee, lower than her similarly-
performing co-workers on evaluations, had an unexplained "general
disregard for her professional abilities and status," and often
became "inappropriately upset or angry with [her], to the point of
behaving unprofessionally").
But here, Landry had a report from his deputy (who had
no apparent axe to grind against Brandt) taken straight from FCI
Berlin's HR department (whom he rightfully expected to know if and
when that facility was hiring). That Landry believed it doesn't
reasonably show a biased motive. Nor does the fact that he didn't
give Brandt a chance to explain the perceived inconsistency. See
- 21 - Adamson v. Walgreens Co., 750 F.3d 73, 82 (1st Cir. 2014)
(rejecting employee's argument that employer's failure to let him
explain his side of the story showed pretext because "[w]hether a
termination decision was wise or done in haste is irrelevant, so
long as the decision was not made with discriminatory animus"
(quoting Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 11
(1st Cir. 2003)).
3. Cat's Paw
This bring us to Brandt's third angle. Unable to show
that bias warped Landry's thinking, he falls back on a so-called
"cat's paw" theory, under which an employer can be held liable
when a decision-making official (like Landry) relies on false
"information that is manipulated by another employee who harbors
illegitimate animus" to take an adverse employment action. Ameen
v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 70 (1st Cir. 2015)
(quoting Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 86–
87 (1st Cir. 2004)); see also Staub v. Proctor Hosp., 562 U.S.
411, 422 (2011) (holding that if an employee's "supervisor performs
an act motivated by [illegitimate] animus that is intended by the
supervisor to cause an adverse employment action, and if that act
is a proximate cause of the ultimate employment action, then the
employer is liable under [the Uniformed Services Employment and
Reemployment Rights Act]"). Brandt argues that even if Landry
himself wasn't biased, he "acted as a conduit" for LaPlante's
- 22 - racial prejudice when he relied on LaPlante's report about the
hiring freeze at Berlin (or lack thereof). Appellant's Br. at 28.
This claim trips over the same stumbling block: Brandt
still had to show that LaPlante, himself, acted out of race-based
animus. Ameen, 777 F.3d at 71. He tries to clear that hurdle by
arguing that LaPlante was "looking for an excuse" not to rehire
him, knew the Berlin staffer gave him bad information, and relayed
it to Landry anyway to make him think that Brant lied. Appellant's
Br. at 29. In other words, says Brandt, LaPlante's fact-check was
a "sham" or pretext to mask his real reason for urging Landry to
shut the door on Brandt. Robinson, 950 F.3d at 26. The problem
is that Brandt admitted below that LaPlante genuinely believed
"FCI Berlin was not under a hiring freeze" and "believed that
Brandt had lied" to Valerie Norman about it. Those admissions
doom Brandt's contrary argument that LaPlante lied to cover up the
real (race-based) reason he wanted Brandt rejected. See
Kouvchinov, 537 F.3d at 67 (explaining that to show pretext, i.e.,
that the employer engaged in "a deceit . . . to cover [its] tracks,"
"it is not enough for a plaintiff to show that the decisionmaker
acted on an incorrect perception" or "information that . . . later
prove[d] to be inaccurate"; instead, he "must show that the
decisionmaker did not believe in the accuracy of the reason given
for the adverse employment action").
- 23 - Nor is there proof that racial stereotypes or bias
spurred LaPlante to reach out to Berlin HR or accept what the
staffer there told him. Brandt points to LaPlante's testimony
that this was the first time LaPlante made a call to fact-check an
applicant's story, that LaPlante didn't have friends at FCI Berlin,
and that he can't remember why he knew they were hiring
correctional officers. From that evidence, Brandt says, the jury
could conclude LaPlante assumed Brandt was lying because he is
black. However, Brandt accepts that LaPlante, whom Brandt
describes as "a broker of information in corrections circles," got
the scoop that Berlin was hiring from his "contacts in the
correctional field." And at the time — when Brandt told Norman
about the hiring freeze on March 11 — those contacts were right:
the hiring freeze had ended a month earlier (on February 10).
LaPlante didn't just rely on the rumors, though; he confirmed them
with a reliable source. True, Berlin HR (we must assume) was wrong
to say they'd had a waiver when the freeze was in force. But it
wasn't unreasonable, let alone evidence of bias, for LaPlante to
rely on facts he got straight from the horse's mouth — even if the
horse turned out to be mistaken.8
8Brandt seizes on LaPlante's testimony that the HR staffer was "evasive" when he asked her about Brandt's job application. When asked to elaborate, LaPlante explained that she "didn't want to offer any information related to [Brandt]." A reasonable jury could not infer that an HR rep's refusal to disclose information
- 24 - 4. John Doe Comparator
Fourth and last, but not least, Brandt protests that
there was at least one other MCC corrections officer who left for
a short time before reapplying for his old spot, and he was treated
differently. In his deposition, Landry testified that this "John
Doe" went through a similar re-interview process: a staff member
like Valerie Norman asked him why he left and now wanted to return.
In John Doe's case, he'd left for "a warehouse job of some type,"
found the work "not challenging" and "uninteresting," and
regretted his decision to leave. Brandt complains that unlike
Brandt's, Doe's "reason for wanting to return . . . wasn't
questioned or checked." Appellant's Br. at 25. But there's a
simple reason for that: unlike with Brandt, Landry had no reason
to suspect that John Doe's explanation wasn't true.9 In contrast,
as Landry testified, Brandt left "to seek out better career
opportunities," but it wasn't clear what happened that made him
want to come back: Brandt said there'd been a hiring freeze, but
according to LaPlante (parroting a reliable source), that wasn't
true. Unlike with Doe, the hiring team had "asked [Brandt] a
pretty straight question" and, according to Landry's unrebutted
about an individual job applicant over the phone so undermined her reliability that LaPlante should not have trusted her information about the prison's hiring practices in general. 9 So far as we can tell, there's no evidence that LaPlante was involved in John Doe's rehiring process.
- 25 - testimony, they "didn't feel like [they] were getting a straight
answer." Since the undisputed facts show that Doe's situation was
distinct in that key way from Brandt's, a reasonable jury could
not infer from Brandt's and Doe's disparate treatment that Landry
or LaPlante were biased against Brandt because of his race. See
Adamson, 750 F.3d at 82 (explaining that disparate treatment
between the plaintiff and other employees is not "probative of
discriminatory animus" when, as here, the comparators are not
"similarly situated" to the plaintiff in all "material respects").
To cinch matters, Brandt offers no evidence based on which the
jury could conclude that Doe wasn't also African American.
B. Brandt's Retaliation Claim
As we previewed earlier, Brandt also faults the district
court for granting summary judgment on his claim that Landry (at
LaPlante's urging) rejected his application for reinstatement in
retaliation for Brandt's letter to Commissioner Ponte and his
complaint to the MHRC. But this claim fails as well.
To show retaliation, a plaintiff has to prove that he
complained about discrimination (or otherwise "undertook protected
conduct") and his "employer took a material adverse action" against
him because of it. Planadeball v. Wyndham Vacation Resorts, Inc.,
793 F.3d 169, 175 (1st Cir. 2015) (quoting Medina–Rivera v. MVM,
Inc., 713 F.3d 132, 139 (1st Cir. 2013)). "Once the plaintiff
makes out this prima facie case, the burden shifts to the defendant
- 26 - to articulate a legitimate, non-retaliatory explanation for its
actions," and if it does, "the burden shifts back to the plaintiff
to show that the defendant's explanation is a pretext for unlawful
retaliation." Id. In other words, a retaliation claim follows
the McDonnell Douglas dance. See id. Unlike with a status-based
discrimination claim, a plaintiff alleging retaliation can't rely
on a mixed-motives theory; he "must show 'but-for' causation —
that is, that [he] 'would [] have [been rehired] in the absence of
the' protected complaints." Roy v. Correct Care Sols., LLC, 914
F.3d 52, 70–71 (1st Cir. 2019) (quoting Univ. of Texas Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).
For reasons we've already outlined, Brandt can't do so.
To wit: neither Landry nor LaPlante knew about the MHRC complaint
before they put the kibosh on Brandt's rehire bid10 — and even if
10 Brandt argues in passing that, based on LaPlante's testimony that his "contacts in the field" clued him in to FCI Berlin's hiring status, and Landry's comment that LaPlante was "in touch with [what's going on in] the world of corrections," a reasonable jury could infer that LaPlante must have known about Brandt's November 2013 MHRC charge. But under the circumstances, that is not a reasonable inference. Maine statute provides that "[p]rior to the conclusion of [a MHRC] investigation, all information possessed by the commission relating to the investigation is confidential and may not be disclosed," except by "the commission and its employees . . . as is reasonably necessary to further the investigation." Me. Rev. Stat. tit. 5, § 4612. Below, Brandt did not contend the MHRC's investigation concluded before MDOC refused to rehire him. And he did not deny MDOC's statements that "LaPlante was not aware of the [MHRC charge]" and "was [not] consulted or involved with responding to [it]." His
- 27 - Landry and LaPlante somehow learned that Brandt's complaint to
Ponte concerned race discrimination,11 Brandt hasn't produced any
evidence their stated reasons for rejecting his 2014 application
(that given Brandt's history, they were concerned he'd jump ship
after a few months, and they thought he didn't give a "straight
answer" about the hiring freeze) were pretextual. To do so, Brandt
would have to show that these stated reasons added up to "not only
a sham, but a sham intended to cover up [a retaliatory] motive."
Robinson, 950 F.3d at 25; see also Kouvchinov, 537 F.3d at 67.
And as we've already explained, on this record, he can't do so.12
failure to contest those statements isn't surprising; there's no evidence LaPlante was involved in the probation-side hiring process, so there's no reason to think LaPlante would have learned about the charge until Brandt added his failure-to-rehire claim (which, of course, was after Landry failed to rehire him). 11 The district court concluded that "[g]iven the letter's plain discussion of racially biased hiring" and Landry's spotty memory of the ensuing conference call, "a reasonable jury could conclude, despite Landry's . . . protestations, that Landry learned through the conference call with Commissioner Ponte that the letter discussed racial discrimination." Brandt, C.A. No. 15-461-NT, slip op. at *23. We don't quibble with this finding, since we agree with the district court's ultimate conclusion that Brandt failed to produce evidence showing that pretext or retaliatory animus motivated his rejection many months later. 12Of course, the nine-month lapse between Brandt's complaint to Ponte and when Landry rejected his reemployment application can't show but-for causation on its own. See Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) ("Without some corroborating evidence suggestive of causation . . . a gap of several months cannot alone ground an inference of a causal connection between a complaint and an allegedly retaliatory action.").
- 28 - IV. END
In sum, a reasonable jury could not find that the MDOC's
refusal to rehire Brandt was a product of unlawful discrimination.
As such, the district court's judgment is affirmed.
- 29 -