United States Court of Appeals For the First Circuit

No. 19-1174

CHRISTOPHER O. BRANDT,

Plaintiff, Appellant,

v.

JOSEPH FITZPATRICK, in his official capacity as the Commissioner of the Maine Department of Corrections; SCOTT LANDRY,

Defendants, Appellees.

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

[Hon. Nancy Torresen, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

Cynthia A. Dill for appellant. Kelly L. Morrell, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Susan P. Herman, Deputy Attorney General, were on brief, for appellees.

April 22, 2020 THOMPSON, Circuit Judge. Corrections Officer

Christopher O. Brandt left his job at the Maine Department of

Corrections ("MDOC") for a spot in the federal prison system. When

the federal job didn't work out, Brandt reapplied for his old job,

but MDOC wouldn't take him back. He sued MDOC for race

discrimination and retaliation, but he lost. He now appeals the

district court's grant of summary judgment against him. In a

nutshell, since he lacked the proof needed to reach trial, we

affirm.

I. BACKGROUND1

Brandt is a navy veteran who's spent most of his career

providing security for the federal government, including seven

years as a corrections officer in New York and seven as a special

agent at the Department of State. Then, he moved to Maine. From

late 2012 through January 2014, he worked for the MDOC as a state

corrections officer at the Maine Correctional Center ("MCC") in

Windham. But Brandt's sights were trained elsewhere; throughout

his two-year stint as a state prison guard, he applied every few

months to positions on MDOC's "probation side" — to be a probation

officer or probation officer assistant. If he'd gotten the job,

Brandt would have been MDOC's only African American probation

1In laying out the facts, we view the evidence from Brandt's perspective, drawing all reasonable inferences in his favor. See Robinson v. Town of Marshfield,

(1st Cir. 2020).

- 2 - officer. But he had no such success. Brandt met the minimum

qualifications and interviewed for each open spot,2 but the

probation-side brass turned him down each time.

Defendant Scott Landry was among the deciders. At the

time, he was the administrator in charge of MDOC region 2. Along

with two other panelists, Landry interviewed Brandt for two

probation officer slots in January 2013. But, concerned that

Brandt described himself as a rigid "black and white" thinker

(since probation officers often face complex human situations

requiring creative thinking) and had no experience as a probation

officer (meaning he'd need "close supervision and support" as he

began the job), they picked two other (non-black) candidates, a

former federal probation officer and an MDOC probation officer

assistant, instead.

That spring (on April 12, 2013), Brandt wrote Joseph

Ponte, then Commissioner of the MDOC (and not a party here), to

express concerns about the MDOC hiring process. The letter began:

Dear Commissioner Ponte:

I am writing to praise you for breaking-up the, "good ole boy network" in the prisons and applaud your efforts in embracing diversity, in the Great State of Maine, by seeking qualified applicants that truly reflect the multi-cultural communities we serve. I am a Black male with over 15 years experience in Federal law enforcement, which includes

2 At the time, MDOC gave interviews to internal applicants like Brandt if they met the minimum qualifications for the open position.

- 3 - investigations and I possess a Masters degree. I currently work at the [MCC] as a Correction Officer. I truly enjoy working at MCC and for the [MDOC]. The administrative staff at MCC . . . truly embrac[es] diversity and foster[s] an environment of inclusion for all Correctional Staff without regards to race, gender, or ethnicity.

Then came the "but." Switching gears, Brandt went on:

"In my opinion, the 'good ole boy network' that you have worked so

hard to eliminate thrives in other divisions within the [MDOC],"

meaning "the Division of Probation and Parole." According to

Brandt, the hirers there had told him he "did not meet the

criteria" for a probation spot, which Brandt found "odd" given his

master's degree, experience in the federal system, and "vast

knowledge, skills[,] and abilities." That brought him to his

point:

Mr. Commissioner, the purpose of this letter is to make you aware that there are individual [sic] within the [MDOC] who has not adhered to the high diversity standards that you have set. Although I am seeking better clarity on what the minimum requirements are for the positions I recently applied [to], I feel it's best to notify you regarding the problems I feel exists. . . .

Respectfully,

Christopher O. Brandt

Commissioner Ponte convened a conference call with the

regional administrators to discuss Brandt's letter. Landry was on

the call. Somehow — either from the call or through the grapevine

— Landry learned around that time that Brandt had made the

- 4 - complaint. But as Landry told it in his deposition, no one on the

call mentioned race or discrimination. And at the time, Landry

hadn't seen the letter or heard that it raised concerns about

diversity. Instead, says Landry, Ponte broached only whether "the

probation side of the house was giving fair consideration" to

applicants from the prison side. In any case, Landry doesn't

recall if the talk prompted any changes to the hiring process.

Nothing changed for Brandt, anyway. After sending the

letter, in August 2013, he applied for two more probation spots

without success. By that time, Landry had moved to his current

role as the Warden of MCC and no longer took part in probation

officer hiring. But just as before, the interview panelists passed

over Brandt to select a candidate who was already working as a

probation officer assistant for MDOC and had past experience as a

child protective caseworker. MDOC didn't fill the other position,

which was "placed on hold" indefinitely.

On November 20, 2013, Brandt filed a formal complaint

with the Maine Human Rights Commission (the "MHRC") alleging that

MDOC had discriminated against him based on his age and race.

A month later — after one more fruitless interview with

MDOC probation — Brandt recognized that (in his words) he "was

having no luck advancing" within MDOC, "felt discriminated against

by the Probation Division," and thought he'd have better prospects

for "advancement" if he went back to the feds. So he applied to

- 5 - work as a federal corrections officer at the Federal Correctional

Institution in Berlin, New Hampshire. Given his tenure as a

federal corrections officer in New York years before, he was

confident he'd get the job; and sure enough, in mid-December, FCI

Berlin called to offer him the slot. According to Brandt, he was

slated to start there in early February 2014. So just before the

new year, he resigned from the MCC, effective January 8.

But that's when things really went south. In mid-

January, Berlin backtracked, telling Brandt that due to a budget

sequestration, the prison couldn't hire any new employees until

further notice. With his federal job up in the air, Brandt turned

back to MDOC; over the next four months, he applied to four open

positions with the department, including his old position at MCC.

But MDOC wouldn't take him back. From the get-go, Landry (now

Warden of MCC) and his deputy, Gary LaPlante, suspected that Brandt

intended to use MCC as temporary safety net. When Brandt applied

for rehire in late February, LaPlante emailed Landry that when he

"recently spoke to [Brandt,] it sounded like he was going back to

the [federal] Bureau of Prisons." (A few weeks prior, right after

LaPlante interviewed Brandt for another MCC position, they

discussed Brandt's application to FCI Berlin and Brandt told

LaPlante there was a "hold up" due to a hiring freeze). Under the

circumstances — Brandt had "just left," after all — Landry feared

- 6 - he "would [] come back, stay for a short time, and then leave

again." Landry Dep. at 82.

So when LaPlante reported he caught Brandt in a lie,

that was all it took.

Here's how it happened. Given his concerns about

Brandt's commitment, Landry asked Brandt's old manager, Valerie

Norman, to conduct an informal interview with him to ask about

"his reason for his interest in coming back to work for the

[MDOC]." During the interview, on March 11, Brandt told Norman

that the job with FCI Berlin "fell through due to a hiring freeze"

and that he wanted to return to MDOC and work toward a promotion,

which she passed on to Landry and LaPlante the next day. LaPlante

doubted Brandt's explanation because (as the parties agree) "based

on his contacts in the correctional field," he was "under the

impression that FCI Berlin was not under a hiring freeze."3 So he

did some sleuthing. When he got Norman's email, LaPlante called

an HR rep at Berlin, who told him that Berlin was not under a

hiring freeze, and that even when the federal hiring freeze was in

effect, Berlin had a waiver due to a staffing shortage at that

facility. LaPlante also asked about Brandt's job application, but

3 When pressed on it in his deposition, LaPlante testified that he does not recall exactly why he believed in early 2014 that Berlin was still hiring corrections officers.

- 7 - the staffer was "evasive" about that (saying that "she could not

get into those matters, or something to that effect"). LaPlante

Dep. at 37. Anyway, based on that phone call, LaPlante (as the

parties also agree) "believed that Brandt had lied" about there

being a Berlin hiring freeze, and sent an email to Landry reporting

what he'd learned from Berlin HR and recommending that Brandt not

be rehired.

Considering LaPlante's report, Landry concluded that

Brandt had been "untruthful" about the Berlin situation and decided

to reject his application for reinstatement. He doesn't recall

whom he hired instead.

As it turns out, there was indeed a federal hiring freeze

(and had been for three years) until February 10, 2014, when

Attorney General Eric Holder lifted it. To be clear, the freeze

was lifted after FCI Berlin notified Brandt he couldn't start work

and before LaPlante called Berlin HR to fact-check Brandt's story.

The record doesn't clear up whether Berlin ever did have a

"waiver," as LaPlante's source reported. But since someone at

Berlin told Brandt the hiring freeze prevented the prison from

taking him on board, we'll assume (drawing all reasonable inference

in Brandt's favor as we must) that Berlin was indeed subject to

- 8 - the freeze. In other words, despite what the LaPlante and Landry

believed, Brandt told Norman the truth.4

That brings us to this case. Brandt sued Landry and

MDOC5 in federal court for age discrimination, race discrimination,

and retaliation. In his complaint, Brandt took issue with both

the probation department's repeated rejections of his job

applications and the correction side's decision not to rehire him.

4A week after Landry decided not to rehire him, Brandt filed an amended charge with the MHRC alleging retaliation. Landry didn't know about that charge, or the original one alleging race discrimination, until April 2014 — after all this happened. And as we'll explain, there's no evidence that LaPlante knew about it either. 5Actually, Brandt sued Landry's boss, Jonathan Fitzpatrick, in his official capacity as the Commissioner of MDOC, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (or the ADEA). But Title VII doesn't license suits against employees like Fitzpatrick and Landry in their individual capacities, see Fantini v. Salem State Coll.,

(1st Cir. 2009), and "[w]e have ruled that a Title VII claim brought against a supervisory employee in his official capacity as an agent of the employer operates as a claim against the employer," Ríos-Colón v. Toledo-Dávila,

(1st Cir. 2011). The district court applied the same principles to Brandt's ADEA claims against Fitzpatrick (which aren't at issue on appeal). See Brandt v. Fitzpatrick, No. 1:15-CV-461-NT,

, at *3 (D. Me. Dec. 5, 2016). So like the parties and the district court, we'll discuss Brandt's claims against Fitzpatrick as claims against MDOC. In contrast, Brandt sued Landry and Lisa Nash in their individual capacities under

. As we'll explain, Brandt dropped his § 1983 claim against Nash after discovery, and the district court granted summary judgment on his § 1983 claims against Landry along with his Title VII claim against MDOC. And on appeal, Brandt presses only the Title VII claims against MDOC.

- 9 - He alleged that his age and his race motivated all those

rejections, and that Landry nixed his reinstatement application to

retaliate against him for complaining to Commissioner Ponte and

the MHRC. He initially tacked on a third defendant, Lisa Nash,

who (along with Landry) interviewed Brandt for one of the 2013

probation slots. After discovery, however, Brandt dropped his age

discrimination claim and his claims against Nash, leaving only his

plaints that Landry and (vicariously) MDOC rejected his

applications for probation-side positions and refused to rehire

him based on his race and his discrimination complaints to Ponte

and the MHRC. He insisted that in doing so, Landry became liable

under

and MDOC violated Title VII of the Civil

Rights Act of 1964. Ultimately, the judge disagreed and granted

Landry and MDOC's ensuing motions for summary judgment on those

remaining claims. Brandt appeals that ruling, but only as to his

Title VII claims against MDOC.

II. LAW

A. Summary Judgment Standard

We review the grant of summary judgment de novo,

affirming only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Pina v. Children's Place,

, 795

- 10 - (1st Cir. 2014) (quoting Celotex Corp. v. Catrett,

(1986)). That means we draw all reasonable inferences in

Brandt's favor; but we won't "draw unreasonable inferences or

credit bald assertions, empty conclusions," or "rank conjecture."

(quoting Cabán Hernández v. Philip Morris USA, Inc.,

(1st Cir. 2007)). "Even in employment discrimination cases

where elusive concepts such as motive or intent are at issue,

summary judgment is appropriate if the non-moving party rests

merely upon conclusory allegations, improbable inferences, and

unsupported speculation." Ray v. Ropes & Gray LLP,

,

116–17 (1st Cir. 2015) (quoting Benoit v. Tech. Mfg. Corp.,

(1st Cir. 2003)).

B. Title VII: Overview

On appeal, Brandt accepts the fate of his probation-side

claims, but he insists that a reasonable jury could find either

that racial stereotypes influenced Landry's decision not to rehire

him or that the rejection was pay-back for Brandt's complaints to

Commissioner Ponte and the MHRC. For that reason, he asks us to

resurrect his claims for race discrimination and retaliation

against MDOC under Title VII of the Civil Rights Act of 1964.6

6 As we noted earlier, Brandt does not appeal the dismissal of his § 1983 claims against Landry in his individual capacity. And remember, only employers like MDOC (or supervisors in their official capacity as agents of the employer) may be sued under Title VII. See Ríos-Colón,

; Fantini,

.

- 11 - Thanks to that statute, employers like MDOC may not "fail

or refuse to hire" someone "or otherwise . . . discriminate against

[him] with respect to his compensation, terms, conditions, or

privileges of employment, because of [his] race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As we've

repeatedly recognized, those words prohibit all discriminatory

"practices in whatever form which create inequality in employment

opportunity," Thomas v. Eastman Kodak Co.,

(1st

Cir. 1999) (quoting County of Washington v. Gunther,

(1981)), reaching beyond conscious racism to root out

"stereotyped thinking" and "other forms of less conscious bias" in

employment decisions, id. at 42, 58–61 (citing Price Waterhouse

v. Hopkins,

, 239–58 (1989)); see also Ahmed v.

Johnson,

(1st Cir. 2014) ("Title VII should 'not

be applied in a manner that ignores the sad reality that

[discriminatory] animus can all too easily warp an individual's

perspective to the point that he or she never considers the member

of a protected class the 'best' candidate regardless of that

person's credentials'" (quoting Bray v. Marriott Hotels,

(3d Cir. 1997)).

Title VII also forbids an employer to retaliate against

an employee for "oppos[ing] any [discriminatory] practice" by (for

example) filing legal complaints (like Brandt's MHRC charge) or

complaining to a supervisor about discrimination (like Brandt did

- 12 - in his letter to Ponte). Franchina v. City of Providence,

(1st Cir. 2018) (quoting 42 U.S.C. § 2000e-3(a)). But

since the parties start with Brandt's status-based (§ 2000e-

2(a)(1)) claim, we will too.

C. How to Prove Race Discrimination

Plaintiffs rarely have eyewitness or "smoking gun"

evidence that reveals an employer's discriminatory motives.

Theidon v. Harvard Univ.,

(1st Cir. 2020)

(quoting Rivera-Rivera v. Medina & Medina, Inc.,

(1st Cir. 2018)). But there are several ways to do so without it.

One path is the familiar McDonnell Douglas burden-

shifting framework, named for the case that christened it. See

McDonnell Douglas Corp. v. Green,

, 802–05 (1973).

Under that theory, evidence that the plaintiff belongs to a

protected class and qualified for the position, but that the

employer chose an equally or less qualified applicant instead,

creates a "presumption that the employer unlawfully discriminated

against [him]." St. Mary's Honor Ctr. v. Hicks,

(1993) (quoting Texas Dept. of Cmty. Affairs v. Burdine,

(1981)). Once the applicant makes out this "prima facie

case," the employer, to avoid liability, has to give "some

legitimate, nondiscriminatory reason for the employee's

rejection." McDonnell Douglas,

. If the employer

provides such an explanation, "the sole remaining issue is

- 13 - discrimination vel non"; and the plaintiff must "show by a

preponderance of the evidence that [the employer's] proffered

reason is pretextual and that the actual reason for the adverse

employment action is discriminatory." Theidon, 948 F.3d at 495–

96 (internal quotation marks omitted).

But McDonnell Douglas didn't pave the only road to relief

for a plaintiff alleging status-based discrimination under Title

VII. That's because a hirer's decision-making can violate the

statute even if the plaintiff's race wasn't the single, "true

reason" for the final decision. Price Waterhouse,

. Rather, in passing Title VII, Congress "meant to condemn

even those decisions based on a mixture of legitimate and

illegitimate considerations," even if, in hindsight, a court might

determine "that the [hiring] decision would have been the same if

[the protected trait] had not been taken into account."

. In such a "mixed-motive" case, the plaintiff can prove a

violation if he shows that race was one "motivating factor" in the

rejection, even if other reasons also played a role. Desert

Palace, Inc. v. Costa,

, 101–02 (2003) (holding

that circumstantial evidence alone can sustain a mixed-motive

verdict) (quoting 42 U.S.C. § 2000e–2(m)). If the plaintiff

succeeds, the employer still has a "limited affirmative defense"

if it can show it would have made the same decision even if race

hadn't factored in (meaning race wasn't the "but-for" cause of the

- 14 - failure to hire). Id. at 94 (citing 42 U.S.C. § 2000e-5(g)(2)(B)).

But that defense is "limited" because it only staves off damages

and compelled reinstatement — not liability, other injunctive

remedies, declaratory relief, or attorneys' fees and costs. Id.

III. OUR TAKE

A. Brandt's Race-based Claim

On appeal, Brandt takes the mixed-motive route. But

under both frameworks, he had to show that Landry relied "at least

in part" on racial bias or animus when he rejected Brandt's

application for reinstatement. Burns v. Johnson,

(1st Cir. 2016) (quoting Chadwick v. WellPoint, Inc.,

(1st Cir. 2009)). So "[o]ur decision here . . . is not dependent

on analyzing [his] claim under each of these theories."

Whichever way you slice it, he comes up short.

Brandt's argument boils down to four points. Since the

first two are related, we'll address both of them before tackling

points three and four in turn.

First, Brandt urges that the way Landry treated Brandt

during the January 2013 probation interview, and the way he

described Brandt later, suggest that Landry relied on stereotypes

about African Americans to assess Brandt's temperament, intellect,

and "critical thinking" skills. Appellant's Br. at 22—23. He

says that unlike in any of his other law enforcement interviews,

Landry and his fellow panelists were all armed. And after thirty

- 15 - to forty minutes, Landry cut the interview short and another

interviewer "escorted" Brandt out. Brandt Dep. at 110. What's

more, Landry jumped to the conclusions that Brandt was a "black

and white" thinker who'd need "close supervision" on the job

without support in Brandt's file or interview responses.

Second, Brandt says the same stereotypes caused Landry

to believe LaPlante over Brandt in the "hiring freeze" kerfuffle

a year later. After all, Brandt was a Navy veteran entrusted to

perform other high-level security positions, performed his job at

MCC satisfactorily, and others in MDOC who'd interviewed Brandt

rated his "ethics and integrity" as "excellent" and "relatively

advanced." On the other hand, LaPlante's report to Landry accusing

Brandt of lying about a Berlin hiring freeze was inconsistent with

this evidence of Brandt's upstanding character. Plus, LaPlante

got his information "outside the normal hiring channels" without

Landry's express authorization, and it turned out to be false

(because despite what LaPlante reported, Brandt's federal job did

fall through due to a hiring freeze). Appellant's Br. at 25. So

(Brandt urges) an unbiased manager would've believed Brandt.

In Brandt's mind, these first two points together show

that Landry had a cognitive bias against Brandt because he is

African American. To be clear, as we see it, Brandt doesn't argue

that Landry intended to discriminate: e.g., that he conspired

with LaPlante to conjure up a race-neutral pretext or that he knew

- 16 - LaPlante's investigation was bogus but relied on it anyway. See

Robinson v. Town of Marshfield,

(1st Cir. 2020)

(acknowledging that "an employer may be deemed to have acted

pretextually if it relies for its actions toward an employee on

the conclusions of an investigation that the employer knows to

have been a sham"). Instead, Brandt makes a more nuanced claim:

that under the circumstances, the fact that Landry "accepted

LaPlante's accusation at face value without giving Brandt an

opportunity to explain" is evidence of a harmful stereotype of

"black dishonesty" which skewed his judgment. Appellant's Br. at

25. In other words, his theory more closely tracks the

stereotyping claim we accepted in Thomas,

(holding

that when an employer "evaluates employees of one race less

favorably than employees of another race who have performed

equivalently," and does so based on race, it violates Title VII

"regardless of whether the employer consciously intended to base

the evaluations on race, or simply did so because of unthinking

stereotypes or bias"). Essentially, Brandt contends that a jury

could find that even if Landry wasn't conscious of it, he believed

LaPlante's representation was more trustworthy than Brandt's

because LaPlante is white and Brandt is black.

As previously noted, before we get to Brandt's last two

points, we'll address these first two — both of which go to

Landry's mindset — and explain why they fail to persuade. In

- 17 - short, neither the 2013 probation interview nor the 2014 "hiring

freeze" debacle reasonably show that racial bias motivated Landry

not to take Brandt back.

1. The 2013 Probation Interview

Starting with Brandt's first point, neither Landry's

sidearm nor his considerations during the 2013 probation-side

hiring process reasonably suggest that race-based bias shaded his

thinking either back then or a year later, when Brandt applied for

rehire. Brandt admitted in his deposition that MDOC probation

officers typically carry guns, and there's no evidence that Landry

or the other panelists disarmed when they interviewed other

applicants, that any interviews lasted longer than Brandt's (in

fact, Brandt admits they were all asked the same questions), or

that other interviewees were not similarly escorted out of the

room. What's more, Brandt described himself in the interview as

having a "black and white" view on drugs and didn't dispute that,

given his lack of experience on the probation side, he would indeed

need "close supervision and support at the beginning of the job."

To round things off, he also doesn't dispute that the two

candidates who got the jobs were the "most qualified candidate[s]"

for each opening, and (unlike Brandt) both had past experience as

caseworkers: again, one was a probation officer assistant at MDOC

- 18 - and a former child protective caseworker, and the other was a

federal probation officer.7

2. Hiring Freeze Debacle: Believing LaPlante Over Brandt

So we turn to 2014, when (according to Brandt) Landry

rejected his rehire request based on "bad information that branded

[Brandt] a liar." Brandt v. Fitzpatrick et al., C.A. No. 15-461-

NT, slip op. at *17 (Jan. 16, 2019). As Brandt's second line of

attack, he insists that Landry's choice to trust LaPlante (who is

white) over Brandt about the hiring freeze also shows Landry's

race-based bias. We don't doubt that, as Brandt maintains,

centuries-old stereotypes portraying African Americans as less

trustworthy than whites can creep into employer decision-making,

just as they've been documented to do in other contexts. See Sheri

Lynn Johnson, Racial Imagery in Criminal Cases,

In the parties' consolidated statement of material facts below, Brandt "admitted" that the probation officer assistant was the most qualified candidate for one of the positions. As for the defendants' statement (supported with citations to the record) that "the panel recommended [the federal probation officer] for the second position because he was the most qualified candidate," Brandt responded: "Qualified. [That candidate] lacked 'actual experience working w/case management.'" The District of Maine's Local Rules provide that "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Rule 56(f), Local Rules of the U.S. District Court for the District of Maine. Since Brandt didn't deny in his response that the candidate was nevertheless the "most qualified" for the position, we deem that statement admitted (as we do with other statements to which the parties responded "qualified" but did not specifically deny).

- 19 - 1739, 1756 (1993) (cataloguing examples of such stereotypes being

invoked in prosecutorial summations). But on this record, we see

no evidence that stereotyped thinking influenced Landry to believe

LaPlante's report that FCI Berlin was always hiring over Brandt's

statement that they weren't.

That Landry was wrong or just unreasonable to trust

LaPlante over Brandt doesn't cut it. After all, "the anti-

discrimination laws do not insure against" an employer's

"inaccuracy or flawed business judgment"; rather, "they are

designed to protect against, and to prevent, actions spurred by

some discriminatory animus." Kouvchinov v. Parametric Tech.

Corp.,

(1st Cir. 2008). So, "to survive summary

judgment, '[i]t is not enough for [a plaintiff] merely to impugn

the veracity of the employer's justification' or to point to flaws

in [the employer's] investigation." Rodríguez-Cardi v. MMM

Holdings, Inc.,

, 48–49 (1st Cir. 2019) (explaining

that, "when faced with employment decisions that lack a clear

discriminatory motive, '[c]ourts may not sit as super personnel

departments, assessing the merits — or even the rationality — of

employers' nondiscriminatory business decisions") (quoting Mesnick

v. Gen. Elec. Co.,

, 824–25 (1st Cir. 1991)). "Even

the most blatant unfairness cannot, on its own, support a Title

VII claim . . . unless facts and circumstances indicate that

- 20 - discriminatory animus," or bias, "was the reason for the decision."

Thomas,

(internal quotation marks omitted).

To illustrate, if Landry had doubted Brandt's candor

without "any factual basis" despite Brandt's clean record and high

ethics ratings, in circumstances (e.g., where an equally or less-

qualified white man got the job) that suggested bias was the

reason, Brandt's claim might have had legs. Burns, 829 F.3d at

14–15 (holding that a female employee had a triable case that her

supervisor's sex-based bias motivated him to reassign her

responsibilities to male employees in part because he questioned

her work ethic, but not that of her male peers, and demeaned her

otherwise well-regarded work product for no apparent reason);

Thomas,

(same where new supervisor scored the

plaintiff, the only black employee, lower than her similarly-

performing co-workers on evaluations, had an unexplained "general

disregard for her professional abilities and status," and often

became "inappropriately upset or angry with [her], to the point of

behaving unprofessionally").

But here, Landry had a report from his deputy (who had

no apparent axe to grind against Brandt) taken straight from FCI

Berlin's HR department (whom he rightfully expected to know if and

when that facility was hiring). That Landry believed it doesn't

reasonably show a biased motive. Nor does the fact that he didn't

give Brandt a chance to explain the perceived inconsistency. See

- 21 - Adamson v. Walgreens Co.,

(1st Cir. 2014)

(rejecting employee's argument that employer's failure to let him

explain his side of the story showed pretext because "[w]hether a

termination decision was wise or done in haste is irrelevant, so

long as the decision was not made with discriminatory animus"

(quoting Rivera-Aponte v. Rest. Metropol #3, Inc.,

(1st Cir. 2003)).

3. Cat's Paw

This bring us to Brandt's third angle. Unable to show

that bias warped Landry's thinking, he falls back on a so-called

"cat's paw" theory, under which an employer can be held liable

when a decision-making official (like Landry) relies on false

"information that is manipulated by another employee who harbors

illegitimate animus" to take an adverse employment action. Ameen

v. Amphenol Printed Circuits, Inc.,

(1st Cir. 2015)

(quoting Cariglia v. Hertz Equip. Rental Corp.,

, 86–

87 (1st Cir. 2004)); see also Staub v. Proctor Hosp.,

(2011) (holding that if an employee's "supervisor performs

an act motivated by [illegitimate] animus that is intended by the

supervisor to cause an adverse employment action, and if that act

is a proximate cause of the ultimate employment action, then the

employer is liable under [the Uniformed Services Employment and

Reemployment Rights Act]"). Brandt argues that even if Landry

himself wasn't biased, he "acted as a conduit" for LaPlante's

- 22 - racial prejudice when he relied on LaPlante's report about the

hiring freeze at Berlin (or lack thereof). Appellant's Br. at 28.

This claim trips over the same stumbling block: Brandt

still had to show that LaPlante, himself, acted out of race-based

animus. Ameen,

. He tries to clear that hurdle by

arguing that LaPlante was "looking for an excuse" not to rehire

him, knew the Berlin staffer gave him bad information, and relayed

it to Landry anyway to make him think that Brant lied. Appellant's

Br. at 29. In other words, says Brandt, LaPlante's fact-check was

a "sham" or pretext to mask his real reason for urging Landry to

shut the door on Brandt. Robinson,

. The problem

is that Brandt admitted below that LaPlante genuinely believed

"FCI Berlin was not under a hiring freeze" and "believed that

Brandt had lied" to Valerie Norman about it. Those admissions

doom Brandt's contrary argument that LaPlante lied to cover up the

real (race-based) reason he wanted Brandt rejected. See

Kouvchinov,

(explaining that to show pretext, i.e.,

that the employer engaged in "a deceit . . . to cover [its] tracks,"

"it is not enough for a plaintiff to show that the decisionmaker

acted on an incorrect perception" or "information that . . . later

prove[d] to be inaccurate"; instead, he "must show that the

decisionmaker did not believe in the accuracy of the reason given

for the adverse employment action").

- 23 - Nor is there proof that racial stereotypes or bias

spurred LaPlante to reach out to Berlin HR or accept what the

staffer there told him. Brandt points to LaPlante's testimony

that this was the first time LaPlante made a call to fact-check an

applicant's story, that LaPlante didn't have friends at FCI Berlin,

and that he can't remember why he knew they were hiring

correctional officers. From that evidence, Brandt says, the jury

could conclude LaPlante assumed Brandt was lying because he is

black. However, Brandt accepts that LaPlante, whom Brandt

describes as "a broker of information in corrections circles," got

the scoop that Berlin was hiring from his "contacts in the

correctional field." And at the time — when Brandt told Norman

about the hiring freeze on March 11 — those contacts were right:

the hiring freeze had ended a month earlier (on February 10).

LaPlante didn't just rely on the rumors, though; he confirmed them

with a reliable source. True, Berlin HR (we must assume) was wrong

to say they'd had a waiver when the freeze was in force. But it

wasn't unreasonable, let alone evidence of bias, for LaPlante to

rely on facts he got straight from the horse's mouth — even if the

horse turned out to be mistaken.8

8Brandt seizes on LaPlante's testimony that the HR staffer was "evasive" when he asked her about Brandt's job application. When asked to elaborate, LaPlante explained that she "didn't want to offer any information related to [Brandt]." A reasonable jury could not infer that an HR rep's refusal to disclose information

- 24 - 4. John Doe Comparator

Fourth and last, but not least, Brandt protests that

there was at least one other MCC corrections officer who left for

a short time before reapplying for his old spot, and he was treated

differently. In his deposition, Landry testified that this "John

Doe" went through a similar re-interview process: a staff member

like Valerie Norman asked him why he left and now wanted to return.

In John Doe's case, he'd left for "a warehouse job of some type,"

found the work "not challenging" and "uninteresting," and

regretted his decision to leave. Brandt complains that unlike

Brandt's, Doe's "reason for wanting to return . . . wasn't

questioned or checked." Appellant's Br. at 25. But there's a

simple reason for that: unlike with Brandt, Landry had no reason

to suspect that John Doe's explanation wasn't true.9 In contrast,

as Landry testified, Brandt left "to seek out better career

opportunities," but it wasn't clear what happened that made him

want to come back: Brandt said there'd been a hiring freeze, but

according to LaPlante (parroting a reliable source), that wasn't

true. Unlike with Doe, the hiring team had "asked [Brandt] a

pretty straight question" and, according to Landry's unrebutted

about an individual job applicant over the phone so undermined her reliability that LaPlante should not have trusted her information about the prison's hiring practices in general. 9 So far as we can tell, there's no evidence that LaPlante was involved in John Doe's rehiring process.

- 25 - testimony, they "didn't feel like [they] were getting a straight

answer." Since the undisputed facts show that Doe's situation was

distinct in that key way from Brandt's, a reasonable jury could

not infer from Brandt's and Doe's disparate treatment that Landry

or LaPlante were biased against Brandt because of his race. See

Adamson,

(explaining that disparate treatment

between the plaintiff and other employees is not "probative of

discriminatory animus" when, as here, the comparators are not

"similarly situated" to the plaintiff in all "material respects").

To cinch matters, Brandt offers no evidence based on which the

jury could conclude that Doe wasn't also African American.

B. Brandt's Retaliation Claim

As we previewed earlier, Brandt also faults the district

court for granting summary judgment on his claim that Landry (at

LaPlante's urging) rejected his application for reinstatement in

retaliation for Brandt's letter to Commissioner Ponte and his

complaint to the MHRC. But this claim fails as well.

To show retaliation, a plaintiff has to prove that he

complained about discrimination (or otherwise "undertook protected

conduct") and his "employer took a material adverse action" against

him because of it. Planadeball v. Wyndham Vacation Resorts, Inc.,

(1st Cir. 2015) (quoting Medina–Rivera v. MVM,

Inc.,

(1st Cir. 2013)). "Once the plaintiff

makes out this prima facie case, the burden shifts to the defendant

- 26 - to articulate a legitimate, non-retaliatory explanation for its

actions," and if it does, "the burden shifts back to the plaintiff

to show that the defendant's explanation is a pretext for unlawful

retaliation."

In other words, a retaliation claim follows

the McDonnell Douglas dance. See

Unlike with a status-based

discrimination claim, a plaintiff alleging retaliation can't rely

on a mixed-motives theory; he "must show 'but-for' causation —

that is, that [he] 'would [] have [been rehired] in the absence of

the' protected complaints." Roy v. Correct Care Sols., LLC,

, 70–71 (1st Cir. 2019) (quoting Univ. of Texas Sw. Med.

Ctr. v. Nassar,

(2013)).

For reasons we've already outlined, Brandt can't do so.

To wit: neither Landry nor LaPlante knew about the MHRC complaint

before they put the kibosh on Brandt's rehire bid10 — and even if

10 Brandt argues in passing that, based on LaPlante's testimony that his "contacts in the field" clued him in to FCI Berlin's hiring status, and Landry's comment that LaPlante was "in touch with [what's going on in] the world of corrections," a reasonable jury could infer that LaPlante must have known about Brandt's November 2013 MHRC charge. But under the circumstances, that is not a reasonable inference. Maine statute provides that "[p]rior to the conclusion of [a MHRC] investigation, all information possessed by the commission relating to the investigation is confidential and may not be disclosed," except by "the commission and its employees . . . as is reasonably necessary to further the investigation." Me. Rev. Stat. tit. 5, § 4612. Below, Brandt did not contend the MHRC's investigation concluded before MDOC refused to rehire him. And he did not deny MDOC's statements that "LaPlante was not aware of the [MHRC charge]" and "was [not] consulted or involved with responding to [it]." His

- 27 - Landry and LaPlante somehow learned that Brandt's complaint to

Ponte concerned race discrimination,11 Brandt hasn't produced any

evidence their stated reasons for rejecting his 2014 application

(that given Brandt's history, they were concerned he'd jump ship

after a few months, and they thought he didn't give a "straight

answer" about the hiring freeze) were pretextual. To do so, Brandt

would have to show that these stated reasons added up to "not only

a sham, but a sham intended to cover up [a retaliatory] motive."

Robinson,

; see also Kouvchinov,

.

And as we've already explained, on this record, he can't do so.12

failure to contest those statements isn't surprising; there's no evidence LaPlante was involved in the probation-side hiring process, so there's no reason to think LaPlante would have learned about the charge until Brandt added his failure-to-rehire claim (which, of course, was after Landry failed to rehire him). 11 The district court concluded that "[g]iven the letter's plain discussion of racially biased hiring" and Landry's spotty memory of the ensuing conference call, "a reasonable jury could conclude, despite Landry's . . . protestations, that Landry learned through the conference call with Commissioner Ponte that the letter discussed racial discrimination." Brandt, C.A. No. 15-461-NT, slip op. at *23. We don't quibble with this finding, since we agree with the district court's ultimate conclusion that Brandt failed to produce evidence showing that pretext or retaliatory animus motivated his rejection many months later. 12Of course, the nine-month lapse between Brandt's complaint to Ponte and when Landry rejected his reemployment application can't show but-for causation on its own. See Ahern v. Shinseki,

(1st Cir. 2010) ("Without some corroborating evidence suggestive of causation . . . a gap of several months cannot alone ground an inference of a causal connection between a complaint and an allegedly retaliatory action.").

- 28 - IV. END

In sum, a reasonable jury could not find that the MDOC's

refusal to rehire Brandt was a product of unlawful discrimination.

As such, the district court's judgment is affirmed.

- 29 -