United States Court of Appeals For the First Circuit

No. 23-1667

CHARLES BOYKIN,

Plaintiff, Appellant,

v.

GENZYME THERAPEUTIC PRODUCTS, LP and PAUL BEAUSOLEIL,

Defendants, Appellees.

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

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

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

Mitchell J. Notis and Law Office of Mitchell J. Notis on brief for appellant. Christopher B. Kaczmarek and Littler Mendelson, P.C. on brief for appellees.

February 16, 2024 SELYA, Circuit Judge. Plaintiff-appellant Charles

Boykin brought an employment-discrimination action against his

quondam employer, Genzyme Therapeutic Products, LP (Genzyme), and

one of its executives. Concluding that the plaintiff's allegations

of discrimination lacked an appropriate factual predicate, the

district court granted summary judgment in favor of the defendants.

The plaintiff appeals. After careful consideration, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. We draw our account from the summary judgment record.1 See

Mancini v. City of Providence,

(1st Cir. 2018).

In the process, we construe the facts in the light most flattering

to the party against whom summary judgment entered (here, the

plaintiff). See

Relatedly, we draw all reasonable inferences

to that party's behoof. See

The plaintiff — an African-American male — began working

as a manufacturing supervisor for Genzyme in 2013. After some

time, he was promoted to the position of senior site planning

1 We note that — before the district court — the defendants moved to strike the plaintiff's statement of material facts. See D. Mass. R. 56.1. The district court allowed the motion "to the extent that any fact in [the plaintiff's statement of material facts] is inconsistent with the facts set forth in defendants' statement (which are deemed admitted given [the plaintiff's] failure to dispute the relevant paragraphs in his statement)." Boykin v. Genzyme Therapeutic Prods. LP, No. 21-10115,

, at *1 n.1 (D. Mass. July 12, 2023). This ruling has not been challenged on appeal, and we do not discuss it further.

- 2 - analyst at Genzyme's Allston, Massachusetts facility. In this

role, he managed the cycle-count process at the Allston facility

and was responsible for investigating deviations from the

company's standard manufacturing processes at that site. The

plaintiff's direct manager was Michael Haepers, and Haepers's

superior was defendant-appellee Paul Beausoleil.

In 2017, issues surfaced relating to the plaintiff's job

performance. At different points in that year, Haepers and

Beausoleil separately expressed concerns to the plaintiff about

the pace at which he was resolving deviation investigations. And

on one occasion, Sebastian Bernhard, the head of finance at the

Allston facility, publicly criticized the plaintiff when Genzyme

failed an external cycle-count audit conducted by

PricewaterhouseCoopers. The plaintiff later reported Bernhard to

Genzyme's human resources administrators for alleged racial

discrimination, after which Bernhard apologized to the plaintiff.

In the winter of 2017 — while the plaintiff was mopping

up ice melt in the facility — Beausoleil allegedly told another

employee that "we finally have a job he [the plaintiff] can

handle." The plaintiff and a co-worker, both of whom overheard

this remark, regarded it as expressing a racial stereotype.

As the end of 2017 approached, Haepers and Beausoleil

communicated about the plaintiff's end-of-year review. In a

December 5 email, Haepers recommended that the plaintiff be given

- 3 - a rating of 3 on Genzyme's 9-block performance matrix. Although

the plaintiff had a "positive attitude and is always willing to

take on extra work or projects," Haepers explained, he also had a

tendency to "lose focus at times, especially as the process owner

for cycle counting." Haepers emphasized that the plaintiff "needs

[to] focus on his basic tasks (cycling counting and deviation

management)." Beausoleil responded, instructing Haepers to enter

the proposed rating into Genzyme's system but not to communicate

this rating to the plaintiff before it was finalized.

On March 20, 2018 — after the rating was finalized —

Haepers informed the plaintiff of it. Haepers told the plaintiff

that he initially gave him a rating of 5, but that Beausoleil

instructed him to reduce it to a 3. When the plaintiff asked why

Beausoleil lowered his rating, Haepers allegedly stated that

Beausoleil believed that the plaintiff was "making too much money."

In addition to rendering the plaintiff ineligible for a salary

increase and a bonus, the 3 rating required him to enter into an

Individual Improvement Plan. But before the plaintiff received

any such plan, he requested and received a medical leave of

absence. He never returned to work at Genzyme.

On January 22, 2021, the plaintiff sued Genzyme and

Beausoleil in the United States District Court for the District of

Massachusetts. His complaint alleged that the defendants engaged

in unlawful racial discrimination, racial harassment, and

- 4 - retaliation in violation of the Civil Rights Act of 1866 (counts

1 and 2),

, Title VII of the Civil Rights Act of

1964 (count 3), 42 U.S.C. §§ 2000e-2000e17, and the employment

discrimination provisions of Massachusetts law (counts 4 and 5),

Mass. Gen. Laws ch. 151B, § 4.

Following the completion of discovery, the defendants

moved for summary judgment. See Fed. R. Civ. P. 56(a). Although

the plaintiff opposed the motion, the district court granted it.

See Boykin v. Genzyme Therapeutic Prods. LP, No. 21-10115,

, at *4 (D. Mass. July 12, 2023). Applying the burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green,

(1973), the district court concluded that,

even if the plaintiff had endured a prima facie case of

discrimination, Genzyme had established a legitimate and

nondiscriminatory rationale for the adverse employment action.

See Boykin,

, at *3. Moreover, the plaintiff had

not offered any sufficient proof that this rationale was

pretextual. See

So, too, the district court found the

plaintiff's retaliation claim wanting because the plaintiff had

failed to proffer evidence sufficient to demonstrate "a causal

connection between the alleged protected conduct (filing a

complaint against Bernhard for racial discrimination) and the

adverse action (the poor performance review by Beausoleil)."

This timely appeal ensued.

- 5 - II

In this venue, the plaintiff challenges only the

district court's entry of summary judgment on his discrimination

claims.2 We review the district court's entry of summary judgment

de novo. See Mancini,

.

To prevail on summary judgment, the movant must show

that there is no genuine issue as to any material fact and that it

is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Morelli v. Webster,

(1st Cir. 2009). The

summary judgment ritual is standard fare: once the movant

"adumbrate[s] 'an absence of evidence to support the nonmoving

party's case,'" Brennan v. Hendrigan,

(1st Cir.

1989) (quoting Celotex Corp. v. Catrett,

(1986)),

the burden shifts to the nonmovant to establish the existence of

a genuine issue of material fact, see

To carry this burden,

the nonmovant cannot simply rely on evidence that is "conjectural

or problematic," Mack v. Great Atl. & Pac. Tea Co.,

(1st Cir. 1989), but, rather, "must present definite, competent

evidence," Mesnick v. Gen. Elec. Co.,

(1st Cir.

1991).

2 The plaintiff does not raise objections to the district court's grant of summary judgment on his retaliation claim. Any such objections are thus deemed waived. See United States v. Zannino,

(1st Cir. 1990).

- 6 - In disparate-treatment cases — like this one — in which

the plaintiff proffers no direct evidence of discrimination, "we

allocate the burden of producing evidence according to the now-

familiar three-step framework set forth in McDonnell Douglas Corp.

v. Green." Udo v. Tomes,

(1st Cir. 1995). Under

this tripartite framework, the plaintiff must first make out a

prima facie showing of discrimination. See

Once that showing

is made, the burden of production shifts to the defendant, who

must provide a legitimate, nondiscriminatory justification for the

adverse employment action. See

If the defendant puts forth

such a justification, the burden of production reverts to the

plaintiff, "who is given an opportunity to show that the

defendant's stated reason for [the adverse employment action] was

a pretext for discrimination."

Throughout, "[t]he ultimate

burden of persuasion always remains on the plaintiff." Cham v.

Station Operators, Inc.,

(1st Cir. 2012).

Before us, the plaintiff argues that the district court

incorrectly applied this formulation in two ways.3 To begin, he

claims that the court mistakenly declined to decide whether he had

3 Although the plaintiff advances claims under both Title VII and Massachusetts state law, neither he nor the defendants argue that the two claims should be treated differently. Given that the federal and state standards do not meaningfully differ in the present application, we address these claims together. See Ponte v. Steelcase Inc.,

, 319 n.9 (1st Cir. 2014); Villanueva v. Wellesley Coll.,

, 127 n.2 (1st Cir. 1991).

- 7 - established a prima facie case of discrimination and instead

engaged in "erroneous speculation." Next, he claims that the court

incorrectly determined that the plaintiff failed to establish that

"the supposedly legitimate nondiscriminatory reason for the

performance review[] was simply a pretext." We do not agree with

either of the plaintiff's arguments.

We turn first to the plaintiff's main assignment of

error. There is no rule of practice or procedure that stops courts

from deferring judgment on the intricacies of establishing whether

there was a prima facie case of discrimination when it is apparent

that the plaintiff cannot prevail at the third step of the

McDonnell Douglas inquiry. See, e.g., Espinal v. Nat'l Grid NE

Holdings 2, LLC,

(1st Cir. 2012) (bypassing first

two steps of McDonnell Douglas framework and proceeding directly

to third step). Inasmuch as this case raises at least one

unresolved question concerning whether a negative performance

review constitutes an adverse employment action necessary to the

establishment of a prima facie case of discrimination, we think

that the district court wisely decided to leave this matter for

another day.

With respect to the plaintiff's remaining assignment of

error, we echo the district court's determination that the

plaintiff failed to establish that there was a genuine issue of

material fact as to whether Beausoleil's proffered reason for the

- 8 - performance review was merely pretext. To be sure, the plaintiff

insists that the evidence at hand establishes a genuine issue of

material fact on this question. At the crux of his argument,

though, stands Haepers's statements upon informing the plaintiff

that he received a rating of 3. On the plaintiff's account, we

must take Haepers's statement that he had initially given the

plaintiff a rating of 5 and only lowered it to a 3 at the direction

of Beausoleil as true. After all, it is incumbent that we view

the evidence that Haepers initially suggested to Beausoleil that

the plaintiff be given a rating of 3 on account of the plaintiff's

performance as only offering part of the story. "The only way"

that Haepers's suggested rating of 3 "could possibly be consistent"

with his statements to the plaintiff, he avers, is if Haepers

initially recommended to Beausoleil that the plaintiff be given a

rating of 5 and only sent the suggestion of a rating of 3 after

the two communicated and Beausoleil cajoled Haepers into lowering

the rating. (Emphasis in original). Seen in this light, the

plaintiff continues, "the only reason Mr. Beausoleil would have

rejected Mr. Haepers' suggestion that Mr. Boykin be rated a '5'

(given Beausoleil's lack of direct knowledge of Boykin's

performance) would be if Beausoleil was being guided by his racial

prejudice" — the same prejudice, the plaintiff suggests, that had

been made manifest when Beausoleil uttered his statement upon

seeing the plaintiff mopping up ice melt. (Emphasis in original).

- 9 - This fact, he concludes, ensures that there is a genuine issue of

material fact as to whether Beausoleil's proffered reason was

pretextual.

We think that the plaintiff reads the record through

rose-colored glasses. The plaintiff's argument might be a

possibility, but it is not backed by the "definite, competent

evidence," Mesnick,

, that we regularly require in

order to stave off the swing of the summary judgment ax. There

are at least three reasons why this is so.

First, as the district court astutely noted, "[b]ecause

Boykin's entire theory of liability hinges on Beausoleil — not

Haepers — being the relevant decisionmaker, pretext must be

measured from Beausoleil's perspective." Boykin,

,

at *3. Thus, even if Haepers believed that the plaintiff was

deserving of a higher rating, that fact would not shed light on

Beausoleil's view let alone enable a reasonable juror to find that

his stated rationale was pretextual.

Second, the plaintiff fails adequately to grapple with

the evidence that he himself relies upon. According to him,

Haepers told him that Beausoleil thought that he was deserving of

a rating of 3 because he was "making too much money." The plaintiff

in turn argues that what Beausoleil meant was that he "believed

that Mr. Boykin 'made too much money' for a Black manager." Yet,

in making this claim, the plaintiff not only puts words into

- 10 - Beausoleil's mouth but also ignores the possibility that

Beausoleil was simply proffering a legitimate and

nondiscriminatory view that the plaintiff's performance at work

did not justify such a salary. Even if this view was "unwise or

unreasonable," Woodward v. Emulex Corp.,

(1st

Cir. 2013) (quoting DeMarco v. Holy Cross High Sch.,

(2d Cir. 1993)), it is a far cry from being a pretextual one,

intended to conceal a true discriminatory view.

Third, the plaintiff places too much weight on the

disparaging comment that Beausoleil made when the plaintiff was

mopping up ice melt. Even assuming that this comment was racially

tinged, our case law has firmly established that "[i]solated,

ambiguous remarks are insufficient, by themselves, to prove

discriminatory intent." Paul v. Murphy,

(1st Cir.

2020) (alteration in original) (quoting Lehman v. Prudential Ins.

Co. of Am.,

, 329 (1st Cir. 1996)). Without more, this

stray and facially ambiguous comment cannot serve as the sole

predicate for a determination that Beausoleil's proffered reason

for seeking to give the plaintiff a rating of 3 was pretextual.

And here, there was no "more."

That ends this aspect of the matter. Given that the

summary judgment record contains no evidence from which a rational

jury could infer, without making insupportable inferences, that

Beausoleil's reason for giving the plaintiff a rating of 3 was

- 11 - actually a pretext for racial discrimination, we are unable to

find any error in the district court's grant of summary judgment

for the defendants.

III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 12 -