          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-
