Joseph v. Lincare, Inc.

United States Court of Appeals For the First Circuit

No. 20-1396

JEFFREY JOSEPH,

Plaintiff, Appellant,

v.

LINCARE, INC.,

Defendant, Appellee,

FAMILY PRACTICE ON THE RIVER, d/b/a Kennebunk Walk-In Clinic, Inc.; PATRICK BUTCHER, individually; BRIGHTON MEDICAL SERVICES, INC., d/b/a Kennebunk Walk-In Clinic, Inc.,

Defendants.

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

[Hon. Lance E. Walker, U.S. District Judge]

Before

Thompson and Kayatta,* Circuit Judges.

James A. Clifford, with whom Andrew P. Cotter, and Clifford & Clifford, LLC were on brief, for appellant. Jeana M. McCormick, with whom Melissa A. Hewey, and Drummond Woodsum were on brief, for appellee.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

March 2, 2021

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KAYATTA, Circuit Judge. Jeffrey M. Joseph appeals the

district court's order excluding several documents as

unauthenticated hearsay evidence and granting Lincare, Inc.'s

motion for summary judgment rejecting Joseph's racial

discrimination challenge to the termination of his employment. We

agree with Joseph that the district court erred in excluding

several documents from the summary judgment record. We also find

that the record, thus supplemented, provides a reasonable basis

for a jury finding in Joseph's favor. We therefore vacate the

entry of summary judgment in favor of Lincare. Our reasoning

follows.

I.

A.

We review a district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that party's

favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1 , 4 (1st

Cir. 2015). On January 18, 2017, Joseph, a then forty-six-year

old black male originally from Dominica, began working with Lincare

as a sales representative at its Falmouth, Maine location.

Lincare is a supplier of respiratory-therapy products across the

United States. As part of its business, Lincare works with various

medical offices -- called "referral sources" -- to identify

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patients who may be candidates for Lincare's products and services.

Joseph's duties included "selling medical equipment, building

relationships with referral sources, resolving complaints that

referral sources had about Lincare, and obtaining . . .

documentation" for insurance purposes. One of Lincare's previous

referral sources was Family Practice on the River d/b/a Kennebunk

Walk-In Clinic ("KWIC"). Prior to Joseph's employment, Lincare

had serviced patients from KWIC, but the Lincare-KWIC relationship

had deteriorated. During Joseph's employment, Lincare had not

identified any new KWIC patients.

In early March 2017, Lincare instructed Joseph to go to

KWIC. After that first visit, Joseph reported to Lincare that

KWIC "did not want anything to do with Lincare, and that he didn't

want to go back there." Lincare, however, instructed Joseph to

return to KWIC on March 23, 2017. On that day, Joseph went to

KWIC to secure a signature on a certificate of medical necessity

for a KWIC patient whom Lincare still serviced. According to

Joseph, in addition to obtaining the signature, he was also

"expected to attempt to repair the relationship with [KWIC]."

Upon arrival, a woman at the front desk advised Joseph that KWIC

was no longer using Lincare's services. Joseph explained that

Lincare was still serving one of KWIC's patients and that he needed

a signature for insurance purposes. During this conversation,

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Patrick Butcher, the owner of KWIC, interjected and advised Joseph

that KWIC was no longer utilizing Lincare's services and that the

patient's physician had no interest in speaking with Joseph.

Undeterred, Joseph asked if he could set up a meeting with the

physician, to which Butcher responded by repeating that KWIC was

not utilizing Lincare and that the physician did not want to meet

with Joseph. According to Joseph, at that point Butcher came out

from behind the front-desk counter, got in Joseph's face and began

yelling "get out, get out, get out." Butcher got so close to

Joseph that Butcher's spit hit Joseph in the face. Joseph was

nervous and scared, and told Butcher not to hit him.

After leaving KWIC, Joseph called Dennis Lizotte

("Lizotte"), his direct supervisor and Lincare's area manager.

Joseph reported to Lizotte that Butcher had disrespected him and

refused to sign the certificate of medical necessity, "that he

felt Butcher discriminated against him based on his color," and

that Joseph was so scared that he wanted to file a report with the

police. Lizotte approved of Joseph's plan to file a police report

and gave him directions to the Kennebunk Police Station, where

Joseph filed an incident report that day. Rather than leaving it

at that, Joseph of his own accord decided that it would be a good

idea to call Butcher. The call did not go well. Joseph told

Butcher that Butcher had been disrespectful to him, but that he

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nonetheless wanted to fix the Lincare-KWIC relationship. 1

According to Joseph, Butcher "exploded" at him and told Joseph to

"stop crying" and that he was going to have him fired. Butcher

eventually hung up on Joseph. Still persisting, Joseph attempted

several more times to get Butcher back on the phone, to no avail.

Joseph admits making these repeated attempts to talk with Butcher

after filing a complaint with the police. He explains that he was

trying to repair Lincare's relationship with KWIC, and that no one

told him not to do so.

Later that same day, Butcher contacted Lincare and spoke

with Lizotte about his interactions with Joseph. When asking

Lizotte whether Joseph worked for Lincare, Butcher provided a

physical description of Joseph that made Lizotte feel "taken

[a]back." According to Lizotte, Butcher asked him if Lincare

employed a "rasta looking sales rep[resentative]." 2 Butcher,

1 Butcher, in contrast, claims that Joseph threatened him on the phone. 2 "Rasta" or "rastafarian" refers to an adherent of "Rastafarianism," which is "a religious movement among black Jamaicans that teaches the eventual redemption of blacks and their return to Africa, . . . forbids the cutting of hair, and venerates Haile Selassie[, the former Emperor of Ethiopia,] as a god." Rastafarianism, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/Rastafarianism (last visited Feb. 23, 2021). "Rastafarians usually wear dreadlocks." Merriam-Webster Learner's Dictionary, https://www.learnersdictionary.com/definition/Rastafarian (last visited Feb. 23, 2021). Joseph wore dreadlocks.

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instead, claims that he merely described Joseph as a "6'4["], thin,

African American with what seemed to be a Jamaican accent."

Lizotte responded by telling Butcher Joseph's name. Butcher

complained to Lizotte that Joseph was "bothering his staff and

ignoring the Clinic's patients" and demanded that Joseph be fired.

Lizotte advised Butcher that he would not fire Joseph over the

phone and that Lizotte needed to have a chance to speak with

Joseph. Butcher responded that he would escalate the matter to

Lincare's board of directors and its CEO. As matters thus stood,

based on his conversations with Butcher and Joseph, Lizotte was

not inclined to accede to Butcher's demand that Joseph be fired.

In Lizotte's view, the events were out of character for Joseph,

and not likely to be repeated.

Following through on his promise, that same day Butcher

wrote a letter about the incident and sent it to eight executives

at Lincare's headquarters. In his letter, Butcher identified

Joseph by his full name and described him as "about 6 feet

4 inches, mid 30's African American with what seem[s] to be a

Jamaican accent." Butcher stated in the letter that he would wait

until March 31, 2017, for Lincare to respond, and threatened

Lincare with "tak[ing] legal action, contact[ing] the media, etc."

if Lincare did "not agree to some sort of mutually agreeable

settlement."

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The following Monday, March 27, 2017, Tarrah Filo-Loos

("Filo-Loos"), then a division manager for Lincare, contacted

Butcher by phone to discuss his letter and the incident. Filo-

Loos apologized to Butcher. After her conversation with Butcher,

Filo-Loos contacted Lizotte and asked him why he had not fired

Joseph. Lizotte explained why he did not believe Joseph would

pose a continuing problem for Lincare in the future.

Nevertheless, Filo-Loos secured Lizotte's agreement to terminate

Joseph.

Lizotte later provided his own account of Joseph's

termination. In his statement dated August 25, 2017, Lizotte

stated that he did not terminate Joseph right "after the incident

in the physician's office" because the "scenario was entirely out

of character from what [Joseph] had exhibited since his time of

hire" and Lizotte believed that it might have been "an

overreaction." Lizotte claimed that when Filo-Loos called him to

discuss the situation, and questioned Lizotte as to why he had not

terminated Joseph, she gave him "new information" that caused him

to agree with Filo-Loos about firing Joseph. That new

information, he claimed, was that Joseph had contacted Butcher

again after leaving. According to Lizotte, he "c[ould] deal with

the initial interaction [at KWIC], but the poor judgment of

harassing somebody after you've been asked to leave, that's why he

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was terminated." Butcher, though, had spoken with Lizotte before

Lizotte spoke with Filo-Loos. And Butcher testified that he told

Lizotte about Joseph's callbacks.

Approximately five months after Joseph's firing, Filo-

Loos sent a letter to Paula Adams ("Adams"), Lincare's Head of

Employee Relations, in which she recounted the incident that led

to Joseph's termination. In her letter, Filo-Loos stated that,

on March 27, 2017, she received a copy of Butcher's letter and,

after discussing the situation with Lizotte, they decided that

Joseph's "behavior could not be tolerated." She further stated

that if a sales representative is verbally attacked by "a physician

or a member of the physician's staff," the sales representative

"must remain professional[,] . . . excuse him or herself from the

situation," and seek counsel from his or her supervisor.

According to Filo-Loos' letter, because Joseph "did not do that

[and, instead,] he returned to the office after his supervisor

told him not to," she decided that he should be terminated. Both

Joseph and Lizotte later testified, however, that Lizotte never

told Joseph not to contact Butcher again.

When he was fired, Joseph was still in a ninety-day

probationary period that Lincare imposes on all new employees --

a fact known to Adams. Per the Lincare Handbook, any employee

terminated within the ninety-day period is without recourse to

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Lincare's "Problem Resolution Procedure or progressive steps of

discipline." In an e-mail sent by Adams to Filo-Loos regarding

Joseph's termination, Adams nevertheless stated, "[d]o need to

give Mr. Joseph his proverbial 'day in court' and give him a chance

to explain, defend, deny, etc." Adams further stated that perhaps

Lizotte already gave Joseph a "chance to explain, but [that they

needed to] confirm that with [Lizotte] . . . [to] be sure." Filo-

Loos did not respond to Adams' e-mail, and Joseph did not have an

opportunity to review Butcher's letter before his termination.

B.

On October 24, 2018, Joseph filed a complaint against

Lincare in the United States District Court for the District of

Maine.3 In his amended complaint filed on the following day,

Joseph asserted claims for: (1) intentional racial discrimination

and retaliation under 42 U.S.C. § 1981; (2) racial discrimination

and retaliation under the Maine Human Rights Act ("MHRA"), Me. Rev.

Stat. Ann. tit. 5, §§ 4572, 4633; and (3) retaliation under

Maine's Whistleblower Protection Act, Me. Rev. Stat. Ann. tit. 26,

§ 833.

3 Joseph also brought claims against KWIC and Butcher, but he settled his claims against them.

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Lincare eventually moved for summary judgment. In

response, Joseph voluntarily dismissed his retaliation claims

against Lincare, and opposed summary judgment as to his

discrimination claims under Section 1981 and MHRA. In support of

his opposition, Joseph submitted several documents that Lincare

produced to Joseph during the discovery stage. Lincare requested

that three of those documents be stricken from the summary judgment

record as inadmissible unauthenticated evidence.

On October 22, 2019, the district court entered an

opinion and order granting Lincare's motion for summary judgment.

Joseph v. Lincare, Inc., No. 18-cv-00443-LEW, 2019 WL 5399494 (D. Me. Oct. 22, 2019). The district court ruled that the

documents to which Lincare objected -- Filo-Loos' handwritten

notes of a meeting she had with Lizotte on March 28, 2017, Filo-

Loos' letter to Adams dated August 21, 2017, and the May 27, 2017,

e-mail exchange between Filo-Loos and Adams -- constituted

inadmissible "unauthenticated and hearsay evidence." See id. at

*3 nn.2-3. Hence, it excluded these documents from the summary

judgment record. Id. The court additionally excluded on the same

grounds a fourth document -- Lizotte's statement to Adams dated

August 25, 2017 -- to which Lincare had not objected. Id. at *3 n.3.

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The district court then analyzed Joseph's racial

discrimination claims under Section 1981 and the MHRA. Id. at *3 .

Applying the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 (1973), the

district court found that Joseph had made out a prima facie case

of racial discrimination. Joseph, 2019 WL 5399494 , at *4-6. The

court rejected Lincare's arguments that Joseph was not qualified

for his job and that there was no evidence of a causal connection

between Joseph's race and his termination. Id. at *5-6. Specifically, the court found that whether Joseph violated

Lincare's policies during his interaction with a former client was

in dispute and that "there [was] at least as much evidence

suggesting he met or exceeded Lincare's employment expectations

overall." Id. at *5. Likewise, it found that Joseph had

satisfied the causation prong by presenting "some evidence that

his termination might have been racially motivated." Id. at *6. The district court then examined whether Lincare had

articulated a "legitimate, non-discriminatory reason for

terminating" Joseph. Id. The district court took the view that

after Filo-Loos and Lizotte "review[ed] the incident" they both

agreed to terminate Joseph for "unprofessional and potentially

harassing behavior" arising out of the incident at KWIC. Id. The

district court found that Lincare's proffered reason was non-

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discriminatory and sufficient to satisfy the second prong of

McDonnell Douglas, thus shifting the burden back to Joseph. Id.

Finally, the district court found that Joseph had failed

to provide any admissible evidence showing that Lincare's

articulated reason was pretextual. Id. at *7. Joseph had argued

that Lincare's stated rationale for firing him was pretextual

because (1) Lincare's articulated reasons for firing him changed

over time and were "inconsistent and irreconcilable" and

(2) Joseph did not receive his "proverbial 'day in court'" that

was offered to other Lincare employees before termination. Id.

Considering the record culled of the stricken documents, the

district court rejected those arguments. Id.

First, the district court found that Lincare's proffered

reasons for terminating Joseph were "related and overlapping"

rather than inconsistent or contradictory. Id. In the court's view, "[t]he record suggest[ed] that two aspects of Mr. Joseph's

behavior both contributed to [Lincare]'s decision to fire him: he

out-stayed his welcome at [KWIC] on March 23, and continued to

call [KWIC] later that day after having been unequivocally turned

away by Mr. Butcher." Id. The district court explained that the

fact that Lincare "states these rationales differently in the

record, and at different times, is not evidence of pretext, but

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evidence that there were multiple factors contributing to the

decision to terminate" Joseph. Id.

Second, the district court found no basis to infer bias

because Lincare failed to give Joseph his "proverbial day in

court." Id. The district court observed that Joseph was still

within his ninety-day "trial period" with Lincare during which

Lincare's normal "Problem Resolution Procedure" did not apply.

Id. The district court also noted Joseph's purported failure to

show that any other employees within Lincare's ninety-day trial

window ever received more procedure or process prior to

termination. Id. In the district court's view, the evidence

"point[ed] to this being a typical, routine firing of an employee

during the 90-day trial period, and [did] not imply Lincare's

stated reasons for firing Mr. Joseph were pretextual in any way."

Id. To the contrary, the district court found "that there was

nothing extraordinary about his termination" at all. Id.

Therefore, the court dismissed Joseph's racial discrimination

claims. Id. at *8. Joseph timely appealed.

II.

A.

We consider first whether the summary judgment record

should include the documents stricken as "unauthenticated and

hearsay evidence." Id. at *3 n.3. Each document on its face

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purports to have been authored by and retained by Lincare employees

in the ordinary course of their work for Lincare. The parties

therefore agree on appeal that the documents are not excludable as

hearsay. So we limit our discussion to the authenticity issue.

"[We] review the district court's evidentiary rulings

made as part of its decision on summary judgment for abuse of

discretion." Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d

9 , 13 (1st Cir. 2006). Although this is a deferential standard,

it "does not preclude an appellate court's correction of a district

court's legal or factual error: 'A district court would necessarily

abuse its discretion if it based its ruling on an erroneous view

of the law or on a clearly erroneous assessment of the evidence.'"

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559 ,

563 n.2 (2014) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S.

384 , 405 (1990)).

Both the district court and the parties take the position

that Rule 56 of the Federal Rules of Civil Procedure, which

provides that "[a] party may object that the material cited to

support or dispute a fact cannot be presented in a form that would

be admissible in evidence," Fed. R. Civ. P. 56(c)(2), requires the

parties to cite materials that would be admissible at trial.

Accordingly, they agree that the evidence must be authenticated.

We need not pass judgment on the correctness of their

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interpretation of Rule 56's admissibility requirement, which has

not been briefed by the parties.4 Instead, we focus on their point

of disagreement -- whether the excluded evidence was sufficiently

authenticated.

Rule 901 of the Federal Rules of Evidence provides that

"[t]o satisfy the requirement of authenticating or identifying an

item of evidence, the proponent must produce evidence sufficient

to support a finding that the item is what the proponent claims it

is." Fed. R. Evid. 901(a). In section (b), the rule identifies

examples of ways to authenticate evidence, including through

testimony of a witness with knowledge. Fed. R. Evid. 901(b)(1).

Thus, "[a] document can be authenticated [under Rule 901(b)(1)] by

4Compare G. v. Fay Sch., 931 F.3d 1 , 14 (1st Cir. 2019) (stating that documents that are "unauthenticated" are "inadmissible at the summary judgment stage" (citing Carmona v. Toledo, 215 F.3d 124 , 131 (1st Cir. 2000))); and Hannon v. Beard, 645 F.3d 45 , 49 (1st Cir. 2011) (noting that "'[i]t is black- letter law that hearsay evidence cannot be considered on summary judgment' for the truth of the matter asserted" (quoting Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9 , 17 (1st Cir. 2007))); with Maurer v. Indep. Town, 870 F.3d 380 , 384 (5th Cir. 2017) (noting that, after the 2010 amendment to Rule 56, all that must be shown is that the evidence "be capable" of authentication at trial); Jones v. UPS Ground Freight, 683 F.3d 1283 , 1293–94 (11th Cir. 2012) (holding that district court may consider hearsay on motion for summary judgment "if the statement could be reduced to admissible evidence at trial or reduced to admissible form" (quoting Macuba v. Deboer, 193 F.3d 1316 , 1323 (11th Cir. 1999))). See also Celotex Corp. v. Catrett, 477 U.S. 317 , 324 (1986) ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.").

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a witness who wrote it, signed it, used it, or saw others do so."

United States v. Landrón-Class, 696 F.3d 62 , 69 (1st Cir. 2012)

(alterations in original) (quoting Orr v. Bank of Am., NT & SA,

285 F.3d 764 , 774 n.8 (9th Cir. 2002)).

1.

We consider first Lizotte's written statement to Adams

dated August 25, 2017. Lincare had specifically conceded in the

district court that this evidence was "admissible" and "could be

considered" by the district court in ruling on Lincare's motion

for summary judgment. Reply of Def. in Supp. of Mot. for Summ.

J. at 5, Joseph, No. 2:18-cv-00443-LEW (D. Me. Oct. 7, 2019), ECF

No. 52. Furthermore, the document's authenticity was

independently established during Lizotte's deposition, where he

testified that he had authored the statement at Adams' request,

and discussed its content. See Fed. R. Evid. 901(b)(1) (testimony

by a witness with knowledge that the item is what it purports to

be satisfies the requirement of authentication); see also Landrón-

Class, 696 F.3d at 69 .

2.

Joseph's counsel acquired the remaining three documents

as a result of discovery requests asking Lincare why it fired

Joseph, what role Filo-Loos had in responding to Butcher's letter,

and why she believed Joseph had been insubordinate. In response,

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Lincare referred to documents that its counsel provided, which

included those three documents. One document is on Lincare

letterhead, a second is a printout from the email system with the

Lincare logo, and the third consists of handwritten notes captioned

"Notes of Tarrah Filo Loos from conversation with Dennis Lizotte,

Area Manager." In producing these documents, Lincare offered no

caveat suggesting they might be other than what they appear to be.

To this day, Lincare has never claimed they are not authentic.

Discovery is expensive enough without adding make-work.

When a party in response to discovery requests points to a document

that appears on its face to be a business record of the producing

party, the other parties should be able to treat the document as

authentic unless someone offers some reason to think otherwise,

before it is too late to do something about it. See McConathy v.

Dr. Pepper/Seven Up Corp., 131 F.3d 558 , 562 (5th Cir. 1998)

(finding that district court did not abuse its discretion in

finding a document authenticated on the basis that "(1) [the

plaintiff] produced the document in response to a discovery

request, (2) the document bore her signature, [and] (3) she did

not claim that the document [was] not authentic or that her

signature [was] a forgery"); McQueeney v. Wilmington Tr. Co., 779

F.2d 916 , 929-30 (3d Cir. 1985) (finding "the fact that the copies

were produced by the plaintiff in answer to an explicit discovery

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request . . . while not dispositive on the issue of authentication,

is surely probative" and concluding that challenged documents were

authentic because of the "sum of . . . circumstantial evidence").

Here, when Joseph sought to use the documents as being

what they appeared to be, Lincare never offered any suggestion

that it had produced unauthentic documents. Rather, it simply

played "gotcha," waiting until discovery was over to challenge

authenticity by arguing that Joseph had failed to obtain an express

admission of authentication by Lincare of its employees who created

the documents. In rewarding this gambit, the district court

erred. As we shall explain, this evidentiary error was not

harmless because these documents help push Joseph's case over the

summary judgment hurdle.

B.

1.

Summary judgment is appropriate when the moving party

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). A genuine dispute is "one that must be decided

at trial because the evidence, viewed in the light most flattering

to the nonmovant, would permit a rational factfinder to resolve

the issue in favor of either party." Medina-Muñoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990) (citations omitted).

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"Facts are material when they have the 'potential to affect the

outcome of the suit under the applicable law.'" Cherkaoui v. City

of Quincy, 877 F.3d 14 , 23 (1st Cir. 2017) (quoting Sánchez v.

Alvarado, 101 F.3d 223 , 227 (1st Cir. 1996)). The party opposing

summary judgment bears "the burden of producing specific facts

sufficient to deflect the swing of the summary judgment scythe."

Mulvihill v. Top-Flite Golf Co., 335 F.3d 15 , 19 (1st Cir. 2003).

Joseph brings racial discrimination claims under both

Section 1981 and MHRA. Section 1981 provides that "[a]ll persons

. . . shall have the same right in every State and Territory to

make and enforce contracts . . . as is enjoyed by white citizens."

42 U.S.C. § 1981(a). In turn, MHRA provides that "[i]t is unlawful

employment discrimination . . . [f]or any employer . . . to

discharge an employee or discriminate with respect to . . . any

other matter directly or indirectly related to employment . . .

because of their race or color." Me. Rev. Stat. Ann. tit. 5,

§ 4572(1)(A).

Where, as here, a plaintiff opposing summary judgment

does not have direct evidence of discrimination, we apply the

burden-shifting framework outlined in McDonnell Douglas Corp., 411

U.S. at 802-05 , which has been adopted for both Section 1981 and

MHRA employment discrimination cases. See Bhatti v. Trs. of Bos.

Univ., 659 F.3d 64 , 70 (1st Cir. 2011) (applying the McDonnell

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Douglas framework to Section 1981 cases); Bishop v. Bell Atl.

Corp., 299 F.3d 53 , 58 n.3 (1st Cir. 2002) (noting that "[t]he

Supreme Court of Maine explicitly adopted the McDonnell Douglas

framework as applied to employment discrimination claims brought

under the MHRA" (citing Me. Hum. Rts. Comm'n v. City of Auburn,

408 A.2d 1253 , 1261–63 (Me. 1979))).

Under the McDonnell Douglas framework, a plaintiff has

the initial burden of establishing a prima facie case by showing:

(1) membership in a protected class; (2) he met his employer's

expectations; (3) he suffered an adverse employment action; and

(4) evidence of a causal connection between his membership in a

protected class and the adverse employment action. Bhatti, 659

F.3d at 70 ; Prescott v. Higgins, 538 F.3d 32 , 40 (1st Cir. 2008);

McDonnell Douglas Corp., 411 U.S. at 802 . "This burden is not

onerous." Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53 , 57

(1st Cir. 2018).

If the plaintiff establishes his prima facie case, "the

burden of production -- but not the burden of persuasion -- shifts

to [the employer], who must articulate a legitimate,

nondiscriminatory reason" for its action. Theidon v. Harvard

Univ., 948 F.3d 477 , 495 (1st Cir. 2020) (quoting Johnson v. Univ.

of P.R., 714 F.3d 48 , 53–54 (1st Cir. 2013)); see also McDonnell

Douglas Corp., 411 U.S. at 802 . If the employer articulates such

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a reason, the burden shifts back to the plaintiff, who must then

offer evidence sufficient to support a finding that it is more

likely than not that the employer's proffered reason for the

adverse employment action was pretextual and that the true reason

was unlawful discrimination. McDonnell Douglas Corp., 411 U.S.

at 804-05 .

2.

The district court found that Joseph made out a prima

facie racial discrimination claim, and that Lincare had

articulated a legitimate, non-discriminatory reason for his

termination, namely, Joseph's marked persistence in continuing to

contact Butcher even after it was clear that such contacts were

vigorously unwelcome. The parties do not dispute these findings

on appeal.5 Instead, they dispute whether the district court erred

5 Although Joseph does not challenge the district court's finding that he successfully established a prima facie case of racial discrimination, he argues the district court should have denied summary judgment at the first step of the McDonnell Douglas framework because the parties disputed several facts relevant to the prima facie case. His argument is a non-starter. Joseph cannot defeat summary judgment merely by showing that there were disputed issues of fact as to the elements of the prima facie case. If a plaintiff cannot establish a prima facie case of discrimination, summary judgment is appropriate. Likewise, if there are material issues of fact as to the elements of the prima facie case, but the employer articulates a legitimate, non- discriminatory reason for the adverse employment action and the plaintiff fails to show pretext, summary judgment is also appropriate. For those reasons, courts frequently assume, favorably to plaintiffs, that a prima facie case of discrimination has been established and move on to remaining steps of the

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in concluding that Joseph failed to meet his burden, under the

third step of the McDonnell Douglas framework, to produce evidence

creating a genuine issue of fact as to whether: (1) Lincare's

articulated reason for his termination was pretextual and

(2) racial discrimination was the real reason for his termination.

See Quinones v. Buick, 436 F.3d 284 , 290 (1st Cir. 2006);

Villanueva v. Wellesley Coll., 930 F.2d 124 , 128 (1st Cir. 1991)

(explaining that in addition to showing a genuine dispute of

material fact as to whether the employer's articulated reason is

pretextual, the plaintiff must point to "evidence from which a

reasonable inference of discrimination can be drawn"). A

plaintiff may "use the same evidence to show both pretext and

discriminatory motive, 'provided that the evidence is adequate to

enable a rational factfinder reasonably to infer that unlawful

discrimination was a determinative factor in the adverse

employment action.'" Pina v. Children's Place, 740 F.3d 785 , 797

(1st Cir. 2014) (quoting Santiago–Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46 , 54 (1st Cir. 2000)).

Racial animus first arose, according to Joseph, in the

form of Butcher's antagonism. Joseph points to the vituperative

McDonnell Douglas framework. See, e.g., Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40 , 47 (1st Cir. 2019) (sanctioning the practice of assuming the plaintiff has established a prima facie case and moving on to the remaining steps of the McDonnell Douglas framework).

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nature of Butcher's confrontation and Butcher's express references

to Joseph's race. The second reference, unlike the first, came

after Butcher knew Joseph's name so it might reasonably be regarded

as suggesting that Butcher's reaction to Joseph may have rested in

part on a racist view of blacks as threatening. Additionally,

such an inference could be reasonably viewed as reinforced by the

unusually antagonistic nature of Butcher's behavior (at least as

described by Joseph). So, were the issue in this case whether a

jury could find that racial bias was a factor in Butcher's

complaints regarding Joseph, we would likely say yes.

But Joseph lodges his complaint against his employer,

Lincare, not Butcher. He also disavows any effort to extend any

so-called cat's paw theory to the facts here.6 Nor does he claim

that we should look to the precedent applicable when an indifferent

employer knowingly accedes to racist customer preferences.

See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 , 913

(7th Cir. 2010). And he more broadly disclaims any argument that

Butcher's assumed bias should be imputed to Lincare. Rather, he

argues that Lincare itself acted with bias when it "agree[d] with

6 See, e.g., Staub v. Proctor Hosp., 562 U.S. 411 , 415, 422-23 (2011) (explaining that an employer can be liable for a supervisor's biased review of an employee even if the person taking adverse action based on that review is unaware of the bias).

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Butcher's racially hostile perspective" that "a 6'4" black man

with an accent is someone to fear."

So we turn our attention to Lincare. Joseph admittedly

has no direct evidence of any racial animus by Lincare.

Presumably, aware of his race, the company hired him and all went

without a hitch until the visit to KWIC. The only reference to

race, direct or otherwise, by any Lincare employee is Lizotte's

statement that he was "taken [a]back" by Butcher's reference to

Joseph's race.

The law, though, allows a plaintiff to prove a claim of

race discrimination with circumstantial evidence, including

reasonable inferences that might be drawn from that evidence.

Thomas v. Eastman Kodak Co., 183 F.3d 38 , 58 (1st Cir. 1999)

(noting that the McDonnell Douglas framework was designed to allow

plaintiffs to prove discrimination by circumstantial evidence);

Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 , 171 n.13 (1st Cir.

1998). Toward that end, Joseph points to inconsistencies in the

explanations given by Lincare for firing Joseph.

Lincare officials have offered at divers times the

following explanations: Joseph did not know when to leave KWIC;

Joseph acted unprofessional at KWIC; Joseph exercised poor

judgment in repeatedly calling back Butcher; Joseph went back to

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KWIC; and Joseph disobeyed an order from Lizotte not to contact

Butcher again.

The district court concluded that these various

rationales for the termination were "related and overlapping"

rather than "inconsistent" or "contradictory." But Joseph's point

is that based on his and Lizotte's testimony, jurors could find at

least three of the reasons given for his termination to be false

because: (1) He did not go back to KWIC; (2) he did not act

unprofessionally when first there; and (3) Lizotte never told him

not to contact Butcher again.

An employer's changing explanations for an adverse

employment action can sometimes provide evidence of pretext.

See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424 , 431-32

(1st Cir. 2000) ("[W]hen a company, at different times, gives

different and arguably inconsistent explanations [for an

employee's termination], a jury may infer that the articulated

reasons are pretextual."). Furthermore, depending on their

materiality, "weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons" may also allow "a factfinder [to] infer that

the employer did not act for the asserted non-discriminatory

reasons." Pina, 740 F.3d at 797 (quoting Straughn v. Delta Air

Lines, Inc., 250 F.3d 23 , 42 (1st Cir. 2001)). However, the

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falsity of an employer's proffered reason for a discharge does not

automatically generate a sufficient inference that the real reason

must be discriminatory animus. As we explained, "it is not enough

for a plaintiff merely to impugn the veracity of the employer's

justification; [s]he must elucidate specific facts which would

enable a jury to find that the reason given is not only a sham,

but a sham intended to cover up the employer's real and unlawful

motive of discrimination." Theidon, 948 F.3d at 497 (alteration

in original) (quoting Vélez v. Thermo King de P.R., Inc., 585 F.3d

441 , 452 (1st Cir. 2009)). If, for example, Joseph had punched a

customer once, no one would think his discharge discriminatory

merely because Lincare claimed he punched the customer twice.

Further, a false justification is no sham at all unless the

employer knows it to be false. Vélez, 585 F.3d at 452 .

With these principles in mind, we turn to the three

falsehoods that Joseph claims are contained in Lincare's

explanations for his termination. As we will explain, we find the

first two claimed falsehoods to provide examples of the types of

assertions that in context do not by themselves generate a

reasonable inference of discrimination bias even if false.

The first of the three is too immaterial to generate

sufficient inferential force supporting a finding of

discriminatory motive -- whether Joseph went back to KWIC or

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instead called back repeatedly, the salient and undisputed point

is that he initiated plainly unwelcome and imprudent contact. The

second alleged falsehood also falls short of the mark: It concerns

a fairly debatable characterization that is not so implausible as

to imply knowing falsity.

The last falsehood is a different matter. The claim

that Joseph disobeyed a direct order by contacting Butcher after

the first encounter is a statement of fact rather than a

characterization or an opinion. A jury could find it very

material, given that it could find that Lizotte -- who said it was

false -- did not lean towards firing Joseph. Most importantly,

Lincare cannot claim that this false accusation of insubordination

was a result of a momentary misunderstanding arising from confusion

at the time events occurred. Rather, Lincare included this reason

in its sworn interrogatory answer in this lawsuit dressed up as a

formal charge of insubordination even as it presumably knew that

Lizotte denied giving Joseph any such order. Azimi v. Jordan's

Meats, Inc., 456 F.3d 228 , 246 (1st Cir. 2006) ("[A] court's focus

must be on the perception of the decisionmaker, that is, whether

the employer believed its stated reason to be credible.") (citation

and quotations omitted). Jurors could reasonably suspect that

Lincare would not have gone to such lengths unless it had qualms

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about whether Joseph's actual conduct would normally result in the

termination of an otherwise well-performing new employee.

In assessing whether a suspicion of that type can support

a verdict of discrimination, we need examine the "aggregate package

of proof offered by the plaintiff." Mesnick v. Gen. Elec. Co.,

950 F.2d 816 , 824 (1st Cir. 1991). That proof also includes a

plausible suggestion that Filo-Loos rushed to judgment when she

presumed Joseph should be fired when all she had was unverified

accusations that a tall black employee was intimidating Butcher.

In overbearing Lizotte's view to the contrary, and in rejecting

the suggestion that she give Joseph a chance to respond, Filo-Loos

could be seen as accepting too readily a portrayal of a tall black

employee as threatening. Brennan v. GTE Gov't Sys. Corp.,

150 F.3d 21 , 29 (1st Cir. 1998) (finding that evidence that the

employer had not followed its standard procedure for laying off

employees during reduction in force was "directly relevant to

[laid-off employee's] burden of demonstrating pretext").

None of this is to say that Filo-Loos or Lincare acted

in a discriminatory manner. Much evidence suggests to the

contrary. Our task at this point is not to decide whether Joseph's

firing was on account of his race. Rather, we rule only that he

has just enough evidence, as supplemented by the improperly

excluded documents, to warrant a trial.

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III. Conclusion

We reverse the challenged evidentiary ruling, vacate the

district court's entry of summary judgment in Lincare's favor, and

remand for further proceedings consistent with this opinion.

Costs are awarded to the appellant.

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