                   Not for Publication in West's Federal Reporter

              United States Court of Appeals
                           For the First Circuit

No. 07-2207

                                SEAN HOLLOWAY,

                           Plaintiff, Appellant,

                                        v.

       THOMPSON ISLAND OUTWARD BOUND EDUCATION CENTER, INC.,

                            Defendant, Appellee.


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Richard G. Stearns, U.S. District Judge]


                                     Before

                             Boudin, Chief Judge,

                       Stahl, Senior Circuit Judge,

                         and Lynch, Circuit Judge.


     Sean Holloway on brief pro se.
     Nina Joan Kimball, Justine H. Brousseau and Kimball Brousseau
LLP on brief for appellee.



                               April 30, 2008
           Per Curiam. Sean Holloway was fired from his position as

a maintenance worker for Thompson Island Outward Bound Education

Center, Inc. ("TIOB"), which is a non-profit organization operating

on one of the Boston Harbor Islands.            He brought suit in the

federal   district      court   for    Massachusetts,   alleging    racial

discrimination and retaliation in violation of Title VII and the

analogous state law.     42 U.S.C. § 2000e (2000); Mass. Gen. Laws ch.

151B.   The court granted summary judgment to TIOB on both claims,

Holloway v. Thompson Island Outward Bound Educ. Ctr., Inc., 492 F.

Supp. 2d 20 (D. Mass. 2007); Holloway, litigating pro se, appeals.

           The story begins in June 2004.        Holloway, who is black,

was then working on the kitchen staff.        He complained to TIOB about

racial discrimination and harassment on the part of the kitchen

supervisor and a fellow employee (both white); the latter allegedly

threatened to kill Holloway.      In response, TIOB placed Holloway on

paid leave and thereafter negotiated a settlement with his counsel.

The settlement agreement provided, inter alia, that Holloway would

be   transferred   to    the    maintenance    department,   that   future

employment disputes would be subject to arbitration, that Holloway

would not be terminated except for just cause and that TIOB would

pay Holloway's attorney's fees.

           Holloway returned to work on July 19, 2004.          Less than

two months later, he was terminated for insubordination, lateness,

absenteeism and threatening behavior.


                                      -2-
            The premise of Holloway's suit is that he was actually

fired because of his race or as retaliation for his earlier

complaints.    Everything turns on motivation: there is no dispute

that Holloway is black, had engaged in protected conduct and was

subsequently terminated.            But if the cause of the firing was

insubordination or lateness or absenteeism--anything besides race

or his previous complaint--then Holloway's claims fail.               Benoit v.

Tech. Mfg. Corp., 331 F.3d 166, 173-75 (1st Cir. 2003).

            TIOB says that Holloway was consistently late for work;

that he was on various occasions absent without excuse; that he

refused to perform certain assigned tasks; that he was rude to his

supervisors    when      they   attempted    to    confront   him   over   these

recurring issues; and that two other employees complained that

Holloway had behaved in a threatening manner toward them. TIOB has

submitted affidavits from Holloway's supervisors and the record

includes as well a running file on Holloway kept by one of them.

            Holloway admits that he often began work after 9:00 a.m.,

but says that the only ferry to the island sometimes arrived late

and that the 9:00 a.m. rule was (at least in practice) applied

strictly only to the TIOB employees who lived on the island.                 He

also admits that he refused some orders, but explains that his

settlement with TIOB provided (implicitly) that he would not have

to   work   with   the    kitchen   staff    who   had   threatened   him;   his

refusals, he says, were only attempts to enforce that right.


                                       -3-
Likewise,   he   concedes   that   he    refused   to   discuss   with   his

supervisors some of the complaints they raised, e.g. about his

lateness--referring them instead to his lawyers--but his settlement

did provide for arbitration of disputes and Holloway may have been

concerned about unintentionally waiving his rights during informal

discussions.     He does acknowledge at least some of the absences

TIOB attributes to him, but denies threatening anyone.

            On this record, the prima facie case for discrimination

is extremely weak. Those who terminated Holloway had nothing to do

with the kitchen staff who had harassed him.        There is certainly no

direct evidence of discrimination, and the circumstantial case is

weakened--if not defeated altogether--by the fact that Holloway was

replaced by another black employee.          Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).

            The evidence suggesting a possible retaliatory motive for

the firing is somewhat stronger, primarily because of the close

temporal proximity between Holloway's protected conduct and his

firing. Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224

(1st Cir. 2007).    The termination took place within two months of

his return to work following his complaints of racial harassment--

an interval surely short enough at least to raise suspicions.

Id.; see also Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

25-26 (1st Cir. 2004).




                                   -4-
            But these suspicions can be authoritatively dispelled

 (and a fortiori the weaker discrimination claims defeated) by an

 employer's convincing account of the legitimate reasons for the

 firing.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05

 (1973).   And TIOB has provided, with solid support in the record,

 a list of such reasons.     Holloway could only overcome this barrier

 by poking sufficient holes in TIOB's account to create a plausible

 inference that the reasons given for the discharge actually mask a

 forbidden retaliatory motive.

            He has not done so.     Although he advanced the reasonable

 argument that if the first ferry to the island arrives after 9:00

 a.m., an employee should not (indeed, would not) be penalized for

 lateness, the record reveals that Holloway faced discipline for

 missing   the   ferry   entirely   or   for   not   checking   in   with   his

 department after its arrival--different matters entirely.1

            And he has defended his refusal to follow orders by

 claiming that his settlement agreement entitled him to stay away

 from the kitchen staff, but the written agreement in the record

 contains no such provision and even if an oral side-agreement

 existed, the record reflects that Holloway's supervisors attempted


     1
      For example, the running file kept by Holloway's supervisor
indicates that on August 10, "Sean missed boat. Crew saw him drive
onto EDIC dock @ 8:36 after they had already turned to seaward." On
August 13, the file indicates that Holloway was instructed to be
"ready to work . . . directly from the 9:00 boat drop off." And on
August 31, he was reprimanded because when "the ferry arrived at
9:15, [he] walked by our workshop and did not check in."

                                     -5-
to     accommodate    him    but        were    met     with     noncompliance     and

insubordination on a series of occasions. For example, the running

file    indicates    that   on   August        31,    Holloway    "returned   to   Mr.

Tibbetts to voice [his] aversion to working with Mr. Eppinger.                      At

this time Mr. Tibbetts advised 'Fine, then just help Brendan and

Kenny get the rest of the stuff on the pier when they are done.'"

However it was later revealed that Holloway "had not assisted with

any moving of materials and had gone off to work on [his] own."

            Holloway    cannot      explain      away    the     insubordination    by

claiming that his settlement provides for arbitration of disputes;

TIOB might still legitimately take issue with his rudeness, use of

obscenities    and    refusal      to    discuss      routine     matters   with   his

supervisors.     Merely as one instance among several, the running

file says that on August 13, Holloway's supervisor attempted:

            to address [Holloway's] habit of being ready
            for work at 9:30. He stated that it was the
            way he did things and what he was accustomed
            to and that he would not change this practice.
            Made statements such as "I don't need this
            crap" and "I'm not even talking to you, send
            it to my lawyer." . . . Told him to please
            not ignore me or I will be forced to give him
            negative written feedback for insubordination.
            Said he did not care, "whatever." . . .
            [Later that day,] Sean made veiled threats
            that "You do not want to get involved in this
            or you'll go down too."       Said that "many
            lawyers out there would love to get a piece of
            this and I'm just tempted to call them."

            Moreover, Holloway has not even attempted to respond to

various other complaints about his work performance, such as his


                                          -6-
repeated practice of calling in sick after 9:00 a.m., in violation

of TIOB policy.   (The running file indicates that Holloway called

in sick after 9:00 a.m. on August 20 and August 24.)   Nor can all

of his unexcused absences be justified by a family emergency that

apparently took place during late July and early August.       (The

record supports TIOB's claims that Holloway was absent without

excuse on September 1, 2, and 7, among other days.)

          In sum, TIOB has provided an extensive list of problems

with Holloway's performance, backed up by record support. Holloway

has no evidence that this documentary support (including the

running file kept by his supervisor) was falsified in any way, and

his attempts to refute the reasons one-by-one are not persuasive.

On this record, no reasonable jury could find that the explanations

for his discharge were pretexts and therefore that his termination

reflected discrimination or retaliation on the part of TIOB.

          Affirmed.




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