          United States Court of Appeals
                      For the First Circuit


No. 11-1682

                          JUAN ESPINAL,

                      Plaintiff, Appellant,

                                v.

               NATIONAL GRID NE HOLDINGS 2, LLC;
                    KEYSPAN NEW ENGLAND, LLC,

                      Defendants, Appellees.


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

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


                              Before

                       Lynch, Chief Judge,
                Lipez and Howard, Circuit Judges.


     Alex G. Philipson for appellant.
     David J. Kerman, with whom Sarah B. Herlihy and Jackson Lewis
LLP, were on brief for appellees.



                         August 23, 2012
            LYNCH, Chief Judge.       Juan Espinal appeals from entry of

summary    judgment   against   his    claims    of   race-based       disparate

treatment and of hostile work environment against National Grid NE

Holdings 2, LLC, and Keyspan New England, LLC (collectively,

"National").     Espinal v. Nat'l Grid NE Holdings 2, LLC, 794 F.

Supp. 2d 285 (D. Mass. 2011).              His complaint alleges National

punished him more harshly for a rules violation, on the basis of

his Hispanic heritage, than it did a similarly situated white co-

worker and permitted other National employees to harass him, in

violation of Title VII, 42 U.S.C. § 2000e et seq.               We affirm.

                                      I.

A.          Factual Background

            We review the facts in the light most agreeable to

plaintiff,   drawing   all   reasonable       inferences   in    his    favor,

Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996),

and limit our discussion to those facts relevant on appeal.

            National is a public utility company that sells and

distributes natural gas to residential, commercial, and industrial

customers.     As part of its business, National maintains a large

underground gas distribution system, which from time to time leaks.

These leaks pose a significant public safety hazard, and the

Massachusetts Department of Public Utilities requires National to

dispatch a trained employee to any reported leak within sixty

minutes.


                                      -2-
            Since December 2001, Espinal has worked as a Customer

Meter Service Technician ("CMST") at National.         He is currently a

senior technician at the company's Beverly, Massachusetts location

("Beverly   yard").    As   a   CMST,   Espinal   is    responsible   for

investigating reported gas leaks while "on-duty" (i.e., during his

regularly scheduled hours).1    Additionally, one out of every four

weeks, Espinal is "on-call."    While on-call, Espinal must respond

to gas leak pages from midnight to 8:00 a.m. and is the only

Beverly yard employee scheduled to do so during these hours.

            In 2004, Espinal was twice disciplined for failing to

respond to pages while on-call.   On March 17, 2004, Espinal did not

respond to a page at 6:25 a.m. and National was unable to dispatch

an employee within the sixty-minute time frame.        Espinal received

a verbal warning from his supervisors on the same day.        Again, on

September 1, 2004, Espinal did not respond to a page at 5:28 a.m.

The dispatcher paged Espinal a second time, contacted him via his

Nextel phone, and called his home phone number, all to no avail.

After a disciplinary meeting on September 3, 2004, Espinal received

a five-day suspension.2




     1
       Espinal's regular shift was Tuesday through Saturday, from
4:00 p.m. to midnight.
     2
       Espinal has been the subject of two subsequent disciplinary
actions, occurring on February 15, 2007, and April 15, 2009, which
do not bear on our resolution of his appeal.

                                  -3-
                 The events giving rise to Espinal's discrimination claims

began on July 10, 2005, when a dispatcher mistakenly paged Espinal

while he was not on-call.            Espinal suspected that another CMST had

gone unpunished for failing to answer a gas leak page, and asked

his union to obtain the "Order Details" (i.e., dispatch records)

for that night.

                 The union requested the Order Details from National on

July       19,   2005,    to   investigate     "the    potential    subject       of   a

grievance," and received them on August 25, 2005.                  On December 22,

2005, after reviewing the records, the union informed National that

a missed page had gone unpunished, and National initiated a full

investigation.3

                 National did not complete its investigation until October

2006, approximately ten months after receiving the email from the

union.       Espinal alleges that this delay was caused by National's

discriminatory           purposes,   while     the    company   submits      it    was

attributable         to    scheduling    conflicts,      illnesses,    and        other

exigencies, including a union rule requiring a showing of "good

cause" for any disciplinary action.                  On the basis of the records

and information collected, National determined that Daniel Racki --




       3
       There is some dispute as to when National was first informed
that the missed page had gone unpunished. Plaintiff submits it was
in July or August of 2005, but the only clear indication of notice
is an email from a union official to National, dated December 22,
2005. The dispute is not material to the outcome of this case.

                                         -4-
a white CMST -- had missed the July 10 page.            On November 6, 2006,

Racki received a five-day suspension.

            On    September    27,   2006,    Espinal    filed    a    Charge   of

Discrimination alleging disparate treatment with the Massachusetts

Commission Against Discrimination ("MCAD").             At a subsequent union

meeting in November 2006, held off National's premises and after

company hours, Espinal's co-workers learned of his MCAD filing and

of Racki's suspension, and they gave plaintiff a "rough night."

Espinal alleges that his co-workers, most of whom are white, called

him a "rat" and a "spic" and accused him of "outing" Racki.

Following the meeting, National supervisors met with Espinal to

discuss these events. Espinal refused to disclose the names of his

harassers and, upon further questioning, walked out of the meeting

entirely.

            On December 25, 2006, Espinal found the words "the rat"

scrawled on his company vehicle.             Espinal reported the vandalism

but again refused to disclose the names of any co-workers who had

harassed him.      A manager of industrial relations at National gave

Espinal his personal cell phone number and instructed plaintiff to

call directly if another incident occurred.             National also held a

meeting with union members and officials on January 5, 2007, to

reiterate   the    company's    zero    tolerance    policy      for   workplace

harassment and to make clear that anyone who engaged in such

behavior would be terminated.


                                       -5-
           On January 23, 2008, Espinal filed a second charge with

the MCAD, alleging retaliation and harassment, in response to

disparaging comments made by his co-workers.          Acting through

counsel, plaintiff refused to meet with a National representative

to discuss the charge.    To date, although Espinal submits that the

harassment continues, he has not reported any additional incidents

to National or disclosed the names of any perpetrators.

B.         Procedural History

           On April 14, 2009, Espinal filed suit in the District of

Massachusetts.      As amended, his complaint advanced claims for

racially motivated disparate treatment, hostile work environment,

and retaliation, in violation of Massachusetts state and federal

law.   42 U.S.C. §§ 2000e-2, -3; Mass. Gen. Laws ch. 151B, § 4(1),

(4).   On January 7, 2011, National filed a motion for summary

judgment, which was argued at a hearing on March 17, 2011.

           On May 13, 2011, the district court granted National's

motion for summary judgment on all claims.         As to plaintiff's

disparate treatment claim, the trial court concluded that Espinal

could not establish a prima facie case of discrimination or show

that   National's    justification   for   disciplining   him   --   his

inadequate job performance -- was pretextual.        Espinal, 794 F.

Supp. 2d at 292-94, 294 n.14.    Espinal's hostile work environment

claim was also deficient.     The trial court found that National's

efforts to combat any alleged harassment were adequate under the


                                 -6-
standard for liability in co-worker harassment suits, and made in

spite of Espinal's non-cooperation.       Id. at 294-95.

           Espinal filed his timely notice of appeal on June 13,

2011.

                                   II.

           Espinal challenges the order of summary judgment on his

claims of disparate treatment and hostile work environment.               We

review a "grant of summary judgment de novo," Roman v. Potter, 604

F.3d 34, 38 (1st Cir. 2010), and will uphold it where "the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law," Fed. R.

Civ. P. 56(a).      We may affirm summary judgment "on any basis

apparent in the record."     Chiang v. Verizon New Eng., Inc., 595

F.3d 26, 34 (1st Cir. 2010).

A.         Disparate Treatment

           "In   disparate-treatment      cases,    plaintiffs    bear    the

ultimate   burden   of   proving   that    they    were   the   victims   of

intentional discrimination." Udo v. Tomes, 54 F.3d 9, 12 (1st Cir.

1995) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993)).   Where, as here, a plaintiff is "unable to offer direct

proof of their employers' discriminatory animus . . . we allocate

the burden of producing evidence according to the now-familiar

three-step framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-05 (1973)."      Id.


                                   -7-
            We recently set out the three-step McDonnell Douglas

framework at length in Cham v. Station Operators, Inc., 685 F.3d

87, 93-94 (1st Cir. 2012), and need not do so again here.                                We

bypass     whether    Espinal         established        a    prima     facie    case    of

discrimination.        Additionally, the parties do not dispute that

National    furnished        a     facially     legitimate,         non-discriminatory

justification for disciplining Espinal -- namely, his failure to

respond to the September 2004 on-call page.                             Accordingly, we

proceed    directly     to       Espinal's      burden       at   the   third    stage   of

McDonnell Douglas.

            To avoid summary judgment at the third stage in the

McDonnell     Douglas    framework,            "the    plaintiff        must    introduce

sufficient    evidence           to   support    two     findings:       (1)    that     the

employer's articulated reason [for the disciplinary action] . . .

is a pretext, and (2) that the true reason is discriminatory."

Udo, 54 F.3d at 13 (citing Smith v. Stratus Computer, Inc., 40 F.3d

11, 16 (1st Cir. 1994)); see also Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 34 (1st Cir. 2001).                       While these findings are

distinct, the same evidence may be used to demonstrate both.

However, taken together, this evidence must be sufficient to

overcome    "the     ultimate         burden    of    persuading        the    court    that

[plaintiff] has been the victim of intentional discrimination."

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981);




                                           -8-
see also Kosereis v. Rhode Island, 331 F.3d 207, 213-14 (1st Cir.

2003).

            Plaintiff argues that his September 2004 suspension was

improper and that National treated Daniel Racki more favorably than

plaintiff following Racki's failure to respond to a gas leak page.

From these premises, plaintiff argues that a reasonable jury could

find National's explanation for each to be a pretext and that the

real reason was discrimination against Hispanic employees.

            Plaintiff's disagreement with National's reasons for

disciplining him, on this record, does not allow inferences of

pretext or discrimination.           Plaintiff argues that his suspension

was   improper,   as     he    denied       receiving    any   of    National's

communications    that    night.       In    assessing   whether    an   adverse

employment decision is pretextual, we do "'not sit as a super-

personnel    department       that    reexamines    an    entity's       business

decisions.'"   Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.

2002) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365

(7th Cir. 1998)).      Our task is limited to determining whether the

employer "believe[d] in the accuracy of the reason given for the

adverse employment action."          Kouvchinov v. Parametric Tech. Corp.,

537 F.3d 62, 67 (1st Cir. 2008); see also Feliciano de la Cruz v.

El Conquistador Resort & Country Club, 218 F.3d 1, 7 (1st Cir.

2000) ("[T]he question is not whether [plaintiff] was actually




                                       -9-
performing below expectations, but whether [her employer] believed

that she was.")

           It is beyond dispute that responding to on-call pages was

part of Espinal's duties as a CMST, and that he failed to respond

to two pages, a Nextel page, and a home phone call on September 1,

2004.   There is no indication that National believed plaintiff's

excuses for missing these communications yet nonetheless suspended

him.    See Kouvchinov, 537 F.3d at 67 ("[I]t is not enough for a

plaintiff to show that the decisionmaker acted on an incorrect

perception.").    Rather, National rejected his excuses.   Further,

National had previously let Espinal off with a verbal warning

following a missed on-call page in March 2004, which Espinal also

denies receiving. Failure to respond to reported gas leaks, as his

job required, is a serious matter, with considerable public safety

ramifications.    There was no pretext.

           Secondly, there was no differential treatment; Daniel

Racki received an identical five-day suspension for failing to

respond to a gas leak page.   It is true that there were procedural

differences.   To employ these procedural differences "in his quest

to raise an inference of racial discrimination," Espinal needed to

show that Racki was (1) similarly situated to him in all relevant

respects and (2) treated differently by National.    See Conward v.

Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999).




                                -10-
            Espinal and Racki were not similarly situated in several

important    respects,   which       led   directly    to    these    procedural

differences.    Unlike on the night on which Espinal missed a page,

there was no "dispatch supervisor" present when Racki missed a

page.   Because dispatch supervisors are tasked with establishing

the employee responsible for a missed page and preserving any

relevant documentation, National had to begin its investigation

into past events from scratch, collecting the night's phone, pager,

and dispatch records, and interviewing all involved employees, in

order to establish good cause for any resulting suspension.

Espinal does not argue that these procedures were also appropriate

when, as in his case, a dispatch supervisor was present.                 Because

these   "'differentiating       or    mitigating      circumstances     .    .    .

distinguish . . . the employer's treatment'" of its employees,

Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir.

1996) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th

Cir. 1992)), plaintiff's evidence is insufficient to overcome

summary judgment.

            For these reasons, plaintiff's disparate treatment claim

founders at the third stage of McDonnell Douglas, and summary

judgment was appropriate.

B.          Hostile Work Environment

            Espinal   alleges     that     National     is   liable    for       the

harassment he endured at the hands of his co-workers. The standard


                                      -11-
for imposing liability on an employer for workplace harassment is

heightened    where   the   perpetrators    of   that   harassment   were    a

plaintiff's co-workers, not his supervisors. Wilson v. Moulison N.

Corp., 639 F.3d 1, 7 (1st Cir. 2011); see also Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Faragher v. City of Boca

Raton, 524 U.S. 775, 802 (1998).           A plaintiff "must demonstrate

that the employer knew or should have known about the harassment

yet failed to take prompt and appropriate remedial action."

Wilson, 639 F.3d at 7; see also Crowley v. L.L. Bean, Inc., 303

F.3d 387, 401 (1st Cir. 2002).

             Accordingly, to overcome summary judgment on this claim,

plaintiff needed to proffer sufficient evidence to show: first,

that   his   co-workers'    harassment     was   sufficiently   "severe     or

pervasive" to engender a hostile work environment, Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993); and second, that

despite having adequate notice of this harassment, National failed

to take "prompt and appropriate" remedial action, Wilson, 639 F.3d

at 7-8.   Again, we bypass whether plaintiff's treatment by his co-

workers, after his actions brought about the discipline of one of

his fellow employees, was severe or pervasive, and turn to the

second required showing.

             It is clear that National took reasonable steps to

address the alleged co-worker harassment based on the limited

information Espinal was willing to provide.              National received


                                   -12-
notice    of    two   incidents   of   harassment    involving    Espinal,   in

November and December of 2006, and met with Espinal promptly after

each.

               The November 2006 incident occurred off-site and after

company hours, and there were no National managers in attendance.

Espinal's direct supervisor only learned of the "rough night"

through    plaintiff's      co-workers,       and   he   met   with   plaintiff

immediately after he learned of it.           Plaintiff refused to disclose

any details of the incident.            Espinal's direct supervisor then

contacted his superiors, who scheduled and held a meeting at which

two National managers, two union officials, and plaintiff were in

attendance.       This meeting ended when plaintiff walked out, after

refusing to disclose the names of his harassers.               At the meeting

following the December 2006 vandalism, a National manager of

industrial relations provided Espinal with his personal cell phone

number in case any other incidents occurred. Espinal never called,

reported any additional incidents, or disclosed the names of any

responsible parties.         He also declined to meet with National

following the filing of his harassment charge in January 2008.

               Nonetheless, National managers did respond to plaintiff's

allegations.      They met with union members and officials to discuss

these incidents and reiterate National's zero tolerance policy.

National warned that any employee caught engaging in harassment

would be terminated.        The meeting was a prompt and appropriate


                                       -13-
response.    In Wilson v. Moulison North Corp., we affirmed summary

judgment on a co-worker harassment hostile work environment claim

where, upon plaintiff reporting clearer instances of race-based

harassment than are alleged here, the employer warned the guilty

employees that they would be terminated for any further harassment.

639 F.3d at 9.      The plaintiff in that case alleged that the

harassment continued despite this warning, but he never reported

any additional incidents to his supervisor, who had explicitly

instructed plaintiff to do so.     Id. at 10.    We concluded that the

employer's   initial   verbal   warning   "fit   the   crime"   and   that

"plaintiff's failure to put [his employer] on notice of the renewed

harassment [was] fatal to his claim of employer liability." Id. at

8, 11.   So too, here.

            Summary judgment was appropriate as to this claim.

                                 III.

            The order of summary judgment is affirmed.




                                 -14-
