Thompson v. Coca-Cola Co.

United States Court of Appeals
For the First Circuit

No. 07-2107

DUDLEY THOMPSON,

Plaintiff, Appellant,

v.

THE COCA-COLA COMPANY,

Defendant, Appellee.

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

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Michael O. Shea, with whom Law Office of Michael O. Shea,
P.C., was on brief for appellant.
Damon P. Hart, with whom Holland & Knight LLP, was on brief
for appellee.

April 15, 2008
 TORRUELLA, Circuit Judge. Upon returning from vacation

in Jamaica, Dudley Thompson was terminated by The Coca-Cola Company

("Coca-Cola") for failure to follow office procedure including not

finding someone to cover his shifts while he was away. Thompson

alleges that he suffered discrimination based on his race and

national origin in addition to retaliation for engaging in

protected conduct. The district court granted summary judgment for

Coca-Cola. Thompson appeals. After careful consideration, we

affirm.

I. Background

We recite the facts from the record in the light most

favorable to the nonmovant, Thompson. See Franceschi v. U.S. Dep't

of Veteran Affairs, 514 F.3d 81, 83 (1st Cir. 2008).

Thompson, an African-American of Jamaican origin, started

working for Coca-Cola in 2000 as one of four production supervisors

in the quality assurance department at Coca-Cola's Northampton

plant.1 Gerald Goodsell, who Thompson alleges made discriminatory

comments, oversaw the production supervisors and served as an

interim production manager from August 2003 until December 2003,

when Dennis Williams transferred from another plant to take over

duties as production manager at the Northampton plant.

1
Marin Duval, Diego García, and Sean Rutherford, who are white,
Latino, and African-American, respectively, were the other three
production supervisors at the time Thompson was terminated.

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 Throughout most of Thompson's tenure at Coca-Cola, he

performed well. On a few occasions, however, he was reprimanded

for being late to work. Production managers also gave Thompson

frequent informal "coaching sessions" aimed at helping him improve

his performance.

According to Thompson, in late 2002 or early 2003,

Goodsell expressed irritation at an African-American disc jockey's

selection of reggae music at the annual Christmas party. Thompson

alleges that Goodsell said, "I hate Jamaican music and Jamaicans."

Thompson asserts he did not report the comment because he feared

retaliation and termination. Thompson also alleges that on another

occasion, in or about August or September 2003, Goodsell said to

him, "I'll deal with you, you fucking Jamaican." Thompson claims

that Goodsell told him more than once that he was going to "deal

with him" and that Goodsell made other threatening and harassing

comments. Thompson does not provide any specifics, nor does he

allege that any of these other comments were racial or

discriminatory in nature.

In April 2002, Donna Harris, a white female quality

assurance supervisor who was not in Thompson's chain of command,

said to Ronald McKeithen (Thompson's co-worker who is also of

Jamaican origin), "I'm not one of [Thompson's] Jamaican bimbos."

Thompson and McKeithen reported the incident to John Newton, the

quality assurance manager. Newton informed Celine Lasonde, the

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human resources manager, and Lasonde instructed Newton to sit down

with Harris and discuss her inappropriate comments. Harris was

instructed to apologize to McKeithen (which she did), and she was

also required to undergo sensitivity training. Thompson claims

that after this incident and Harris's reprimand, she retaliated

against him by using her position to negatively impact his work.2

On August 29, 2003, in response to coverage problems

caused by shift-swapping, the plant manager, James Lane, sent an

e-mail to all of the production supervisors outlining procedures

for vacation time. Supervisors were instructed that they should

"(1) obtain coverage from another production supervisor; (2)

request personal vacation time from the direct manager in writing;

(3) notify the other production supervisors; and (4) enter the

requested vacation time into a computerized spreadsheet." Though

it was protocol to give advance notice, Coca-Cola acknowledges that

there was no advance-notice requirement and no formal policy

implemented with respect to vacation time.

In the fall of 2003, Thompson realized that he needed

dental surgery, and he decided to have the surgery performed in

Jamaica because the procedure would cost less. By December, he

needed urgent dental attention, and he claims that he informed the

2
Thompson and Harris seem to have had a contentious relationship
for some time. In 2002, Thompson complained to management that
Harris had taken unapproved leave. In fact, she had requested and
received approved leave under the Family and Medical Leave Act, 29
U.S.C. §§ 2601 et seq.

-4-
management that he needed to travel to Jamaica to have dental work

done immediately. Thompson asserts that he spoke to Héctor Lepage,

his "leader",3 about the dental surgery in early December 2003 and

then told one of the other supervisors, Duval, about his proposed

time off. Thompson claims that Duval agreed to cover his shifts.

Thompson also claims that he told Duval that he might need extra

time off, but he could not be sure until he was in Jamaica and had

an opportunity to see his dentist. Thompson says that Duval

approved and asked him to send him an e-mail confirming the

details. Thompson sent Duval the confirmatory e-mail at 10:27 p.m.

on December 18, 2003. Duval did not read the e-mail from Thompson

until the next time he reported to work, which was on December 21,

2003. Duval claims he did not know the exact dates Thompson would

be away, including the possibility of the extra week off, until he

read the e-mail.

Thompson asserts that after he arranged coverage with

Duval, he spoke to Dennis Williams, who gave him approval, so long

as Goodsell was informed as well. Thompson called Goodsell at his

home on December 19, 2003, at around 7 p.m., the evening before his

early-morning flight to Jamaica. Goodsell did not tell Thompson

that he could not take time off; Goodsell's only concern was

coverage for Thompson's shifts. Thompson entered his time off on

3
Though Thompson refers to Lepage as his "leader," the record
reflects that Lepage was actually Thompson's subordinate.

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the spreadsheet through the end of December. He did not request

time off in writing. As a result of Thompson's leave, Goodsell had

to fill in as production supervisor at some point, and Duval had to

work over forty consecutive days.

Once he was in Jamaica, Thompson realized that he would

not be back until January 9, 2004, because his surgery would take

longer than he initially expected. Thompson called Coca-Cola to

inform management that he would need extra time; he left a message

on Goodsell's voice-mail. Goodsell did not respond to Thompson's

message. Thompson assumed that his extension had been approved by

Goodsell. Goodsell, however, reported to Lasonde and Lane that

Thompson failed to comply with vacation protocol. Lasonde

interviewed Rutherford, García, Duval, and Goodsell to discuss

Thompson's leave. After Thompson returned from Jamaica, he was

given an opportunity to discuss the situation in a meeting with

Goodsell, Lane, Lasonde, and Williams.

At the meeting, Thompson contested Coca-Cola's version of

the events surrounding his vacation. He did not make any claims at

the time that Goodsell had been racially biased against him.

Shortly after that meeting, Lasonde, Williams, and Lane sent a

"Separation Proposal" to the Coca-Cola Separation Review Committee

in Atlanta, Georgia. The Separation Review Committee agreed with

the Separation Proposal and terminated Thompson. Thompson claims

that it is clear that Goodsell was an integral part of his

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termination and that he was retaliated against because of his race

and national origin. According to Coca-Cola, Thompson was

terminated solely for taking unauthorized vacation time without

giving prior proper notice.

Thompson filed a claim with the Massachusetts Commission

Against Discrimination on April 30, 2004, arguing that he had been

discriminated against, harassed, and retaliated against based upon

his race, ethnicity, color, national origin, and ancestry under

chapter 151B of the General Laws of Massachusetts. Thompson

withdrew his complaint with the Commission on August 20, 2004, and

filed suit in Hampshire County Superior Court on May 23, 2005.

Coca-Cola removed the case to federal court on July 19, 2005.

Coca-Cola then filed a motion for summary judgment on August 31,

2006. The district court granted the motion on July 16, 2007.

Thompson appealed.

II. Discussion

A. Standard of Review

Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law based on the pleadings, depositions,

answers to interrogatories, admissions on file, and any affidavits.

See Fed. R. Civ. P. 56(c); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.

2004). When considering arguments for summary judgment, "we must

disregard improbable or overly attenuated inferences, unsupported

-7-
conclusions, and rank speculation." Abbott v. Bragdon, 107 F.3d

934, 938 (1st Cir. 1997), vacated on other grounds, 524 U.S. 624

(1998). To defeat a motion for summary judgment, the evidence

offered by the adverse party cannot be "merely colorable" or

speculative. Pegano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986))

(internal quotation marks omitted). The evidence "must be

significantly probative of specific facts." Pérez v. Volvo Car

Corp., 247 F.3d 303, 317 (1st Cir. 2001) (citing Anderson, 477 U.S.

at 249). "A dispute is genuine if the evidence about the fact is

such that a reasonable jury could resolve the point in the favor of

the non-moving party." Sánchez v. Alvarado, 101 F.3d 223, 227 (1st

Cir. 1996) (citation and internal quotation marks omitted). "A

fact is material if it has the potential of determining the outcome

of the litigation." Maymí v. P.R. Ports Auth., 515 F.3d 20, 25

(1st Cir. 2008). We review a district court's grant of summary

judgment de novo. See Hegarty v. Somerset County, 53 F.3d 1367,

1372 (1st Cir. 1995). We will reverse only if, "after reviewing

the facts and making all inferences in favor of the non-moving

party [here, Thompson], the evidence on record is sufficiently

open-ended to permit a rational factfinder to resolve the issue in

favor of either side." Maymí, 515 F.3d at 25 (internal quotation

marks and citations omitted).

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 B. Analysis

First, Thompson argues that he has provided sufficient

evidence that he was terminated based on his race and national

origin. Even if Goodsell was not officially responsible for the

decision to terminate, Thompson argues that Goodsell had enormous

influence in the process. Thompson argues that the causal

connection between the decision to terminate him and Goodsell's

discriminatory comments is not broken since the Separation Review

Committee acted on biased information without conducting its own

independent investigation. See Cariglia v. Hertz Equipment Rental

Corp., 363 F.3d 77, 84-85 (1st Cir. 2004).

Second, Thompson asserts that he was exposed to a hostile

work environment through Goodsell's comments, Harris's comments,

and Goodsell's failure to follow Coca-Cola's policies and

procedures. He contends that the district court erred when it

characterized Goodsell's alleged comments as stray, and, therefore,

insufficient to prove claims of a hostile work environment or

discriminatory termination. Thompson maintains that he suffered

retaliation because he engaged in protected conduct and was given

poor performance evaluations upon which his termination was

ostensibly based.

We do not find support for Thompson's arguments and

reject them in turn.

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 1. Race and National Origin Discrimination

To make out a prima facie case of discrimination under

Mass. Gen. Laws ch. 151B, § 4(1),4 Thompson must prove that he "is

a member of a protected class, [that he] suffered harm as a result

of [Coca-Cola's] adverse employment action, and [that Coca-Cola]

harbored discriminatory animus, which was the determinative cause

of the adverse action." Weber v. Cmty. Teamwork, Inc., 752 N.E.2d

700, 711 (Mass. 2001); Lewis v. City of Boston, 321 F.3d 207, 213-

14 (1st Cir. 2003) (construing Massachusetts law). Thompson bears

the burden of proving discrimination. See Blare v. Husky Injection

Molding Sys. Boston, Inc., 646 N.E.2d 111, 117 (Mass. 1995).

Under the McDonnell Douglas burden-shifting analysis, we

employ a familiar three-stage framework in evaluating claims for

discrimination. See Wheelock Coll. v. Mass. Comm'n Against

Discrimination, 355 N.E.2d 309, 314 (Mass. 1976). Thompson bears

the initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

4
The statute reads in relevant part:

It shall be an unlawful practice: 1. For an employer, by
himself or his agent, because of the race, color,
religious creed, national origin, sex, sexual
orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object,
genetic information, or ancestry of any individual to
refuse to hire or employ or to bar or to discharge from
employment such individual or to discriminate against
such individual in compensation or in terms, conditions
or privileges of employment, unless based upon a bona
fide occupational qualification.

-10-
802 (1973). The burden then shifts to Coca-Cola "to present a

legitimate, non-discriminatory reason, sufficient to raise a

genuine issue of material fact as to whether it discriminated

against [Thompson], for the employment decision." Quiñones v.

Buick, 436 F.3d 284, 289 (1st Cir. 2006). "[Coca-Cola's]

obligation is one of production as opposed to persuasion, as the

burden of persuasion remains with [Thompson]." Lewis, 321 F.3d at

214. If Coca-Cola meets its burden and provides a non-

discriminatory justification for Thompson's termination, the

"presumption of discrimination disappears," and the burden shifts

back to Thompson, who must demonstrate that Coca-Cola's decision

was merely a pretext "to hide such discrimination." Id.

We must first determine whether Thompson makes out a

prima facie claim for race discrimination. It is undisputed that

Thompson is a member of a protected class because he is an African-

American. His termination was an adverse employment action.

Taking the facts in the light most favorable to Thompson, he makes

a claim that he was terminated for discriminatory reasons because

he is of Jamaican origin and Goodsell made numerous discriminatory

comments about Jamaicans and threatened to "deal with him." He has

met his burden for the first prong of the test. The burden now

shifts to Coca-Cola to present a non-discriminatory reason for

terminating him.

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 The record reflects that Coca-Cola's decision to

terminate Thompson was based on Thompson's failure to follow office

procedure with regard to vacation leave. Thompson did not put his

vacation request in writing, and he did not secure the appropriate

coverage for the days that he would be away. The record reflects

that Duval told Lasonde that Thompson had not secured coverage for

his shifts in advance. Duval maintains that he did not have

confirmation of the dates Thompson was going to be away until

December 23, 2003; he received an e-mail the night before Thompson

departed for Jamaica. Thompson acknowledges that his first contact

with his direct supervisor, Goodsell, about his leave was only

hours before he departed for Jamaica. He admits that he failed to

follow any of the required steps of the protocol for his one-week

extension of the vacation because he merely relied on a unilateral

voice-mail to Goodsell. He also did not enter the vacation period

into the company's computerized vacation spreadsheet. These facts

are supported by evidence, including Thompson's own admissions.

Furthermore, Thompson acknowledged that violation of procedures

would constitute a legitimate, non-discriminatory reason for his

termination. Coca-Cola thus met its burden of producing a

legitimate, non-discriminatory reason for terminating Thompson.

Since Coca-Cola has shown a legitimate, non-

discriminatory reason for terminating Thompson, the burden shifts

back to Thompson. Thompson "can no longer rest on the initial

-12-
inference of discrimination but, rather, must show that [Coca-

Cola's] articulated reason is pretextual." Bennett v. Saint-Gobian

Corp., 507 F.3d 23, 31 (1st Cir. 2007). "To meet this burden,

[Thompson] must prove not only that the reason articulated by the

employer was a sham, but also that its true reason was plaintiff's

race or national origin." Rodríguez-Cuervos v. Wal-Mart Stores,

Inc., 181 F.3d 15, 19 (1st Cir. 1999).

Under settled discrimination law, to demonstrate that

its stated reasons for terminating Thompson were not pretextual,

Coca-Cola's explanation need not be perfect. See Mesnick v. Gen.

Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit

as super personnel departments, assessing the merits -- or even

rationality -- of employers' nondiscriminatory business

decisions."). Coca-Cola's reasons for terminating Thompson must

simply be legitimate and not a cover-up for discrimination. See

Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)

("While an employer's judgment or course of action may seem poor or

erroneous to outsiders, the relevant question is simply whether the

given reason was a pretext for illegal discrimination. . . . [The]

focus is to be on the employer's motivation, . . . not on its

business judgment."); T&S Serv. Assoc., Inc. v. Crenson, 666 F.2d

722, 727 (1st Cir. 1981). If there is no proof of discriminatory

animus on the part of a decisionmaker, a plaintiff must show more

than that the decisionmaker's perception was incorrect; he must

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show that the "decisionmaker did not believe in the accuracy" of

the information that he was given. Bennett, 507 F.3d at 31. Put

another way, "[t]he question is not whether [Thompson's] or his

fellow employees' version is the true one, but whether [the

decisionmakers] believed what [they] had been told by those [who

were] interviewed" by management. Ronda-Pérez v. Banco Bilbao

Vizcaya Argentaria, 404 F.3d 42, 45 (1st Cir. 2005).

Coca-Cola posits that the only real issue for the court

to decide is whether the Separation Review Committee acted with

discriminatory animus. We agree.

Thompson makes no allegation that the Separation Review

Committee had any bias of its own against Thompson. "Actionable

discrimination cannot exist in a vacuum. Rather the discriminatory

intent of which a plaintiff complains must be traceable to the

person or persons who made the decision to fire him." Bennett, 507

F.3d at 31. Thompson cannot meet this burden. His allegations of

stray remarks made by Harris and Goodsell are insufficient to prove

that the Separation Review Committee was somehow biased against

him.

Harris was a non-decisionmaker, and a comment such as

hers "cannot support an inference of pretext because it was one

stray remark, and was made by a non-decision maker." Velázquez-

Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007)

(citing González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002)).

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Harris had no role in Thompson's termination, and her comment is

immaterial. First, the comment was not made to Thompson. Second,

management at the plant responded immediately, reprimanded her, and

required her to apologize. Third, Harris did not supervise

Thompson and was not in a position to affect his work. See Douglas

v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir. 2007) ("[plaintiff]

identifies at most one possibly racially-tinged comment by a

co-worker who was not [plaintiff's] supervisor and as such is

irrelevant"). Remarks by non-decisionmakers are not probative of

context. See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d

5, 10 (1st Cir. 1990) ("the biases of one who neither makes nor

influences the challenged personnel decision are not probative in

an employment discrimination case").

Goodsell's alleged comments, two of three of which

preceded Thompson's termination by over a year and none of which

involved the termination process, can be characterized as nothing

other than stray. This circuit has held that "'stray workplace

remarks' . . . normally are insufficient, standing alone, to

establish either pretext or the requisite discriminatory animus."

El Día, Inc., 304 F.3d at 69; see also Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 36 (1st Cir. 2001). Goodsell's input was

minimal and consistent with Thompson's own account of the events.

"Despite a retaliatory or discriminatory motive on the part of a

supervisor who recommends that some adverse action be taken against

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an employee, a third person's independent decision to take adverse

action breaks the causal connection between the supervisor's

retaliatory or discriminatory animus and the adverse action." Mole

v. Univ. of Mass., 814 N.E.2d 329, 343 (Mass. 2004). The record

reflects that Goodsell's input was limited and that the Separation

Review Committee made its own independent decision to terminate

Thompson based on the facts of the situation. In Mole, the

Massachusetts Supreme Judicial Court said that "[w]hen assessing

the independence of the ultimate decision maker, courts place

considerable emphasis on the decision makers giving the employee

the opportunity to address the allegations in question." Id. at

344. Coca-Cola gave Thompson such an opportunity, and he failed to

adequately explain his actions or even give a substantially

different account of events. Instead, he acknowledged that he did

not follow proper procedures.

Contrary to arguments made by Thompson, Cariglia is

inapposite. Among other reasons, in Cariglia, the defendant's

decision to terminate the plaintiff was based upon a report drafted

by a discriminatory supervisor, and the defendant did not conduct

any further investigation or ask the employee for his version of

events. Cariglia, 363 F.3d at 81-82. In examining those facts we

noted that "the critical legal issue [is] whether corporate

liability can attach when neutral decisionmakers rely on

information that is manipulated by another employee who harbors

-16-
illegitimate animus." Id. at 86. We remanded the case to the

district court to address whether information was withheld from the

neutral decisionmakers, but we noted that our decision may have

been different if Cariglia had been given a meaningful opportunity

to address the reasons for his termination. See id. at 87 n.4.

Thompson argues that there was no meaningful

investigation into what happened, and that the Separation Review

Committee based its decision on a biased account by Goodsell. The

record demonstrates that this is patently false. Lasonde convened

a meeting with everyone involved while Thompson was still in

Jamaica to gather information about what transpired. She also met

with Thompson, Goodsell, Lane, and Williams immediately after

Thompson returned from his trip and gave him an opportunity to

explain himself. He did not contradict Goodsell's version of

events, except to say that he had coverage, that he was not really

required to submit his request in writing (even though he admitted

to receiving a previous e-mail from management outlining that leave

requests must be submitted in writing), and that he asked Duval to

cover his shifts. But "the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact." Anderson, 477 U.S. at

247-48. Thompson did not make any allegations against Goodsell at

the time. Thompson presents no evidence that Goodsell made the

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decision to terminate him, nor can he point to any information in

Lasonde's Separation Proposal Memorandum provided by Goodsell

without corroboration by Thompson himself or other employees. This

is not a situation where Goodsell "conceal[ed] relevant information

from the decisionmak[ers] . . . or [fed] false information to

[them], [and was] able to influence the decision." Cariglia, 363

F.3d at 87 (quoting Wallace v. SMC Pneumatics, 103 F.3d 1394, 1400

(7th Cir. 1997)) (internal quotation marks omitted).

Lasonde's recommendation to the Separation Review

Committee was based on record evidence, an investigation of the

situation, and reflected her belief that Thompson should be

terminated for taking unauthorized vacation. Thompson has not

shown that his termination was in any way a result of racial or

national origin discrimination. His claims fail.

2. Harassment and Retaliation

In looking at a claim for hostile work environment, we

assess whether a plaintiff "was subjected to severe or pervasive

harassment that materially altered the conditions of [his]

employment." Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.

2005) (citing Faragher v. City of Boca Ratón, 524 U.S. 775, 786

(1998)). To sustain a claim of hostile work environment, Thompson

must demonstrate that "the harassment was sufficiently severe or

pervasive so as to alter the conditions of [his] employment and

create an abusive work environment" and that the "[racially]

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objectionable conduct was both objectively and subjectively

offensive, such that a reasonable person would find it hostile or

abusive and [that Thompson] in fact did perceive it to be so."

Douglas, 474 F.3d at 15 (citation omitted).

Thompson argues that he was exposed to a hostile work

environment through Goodsell's comments, Harris's comments, and

Goodsell's failure to follow Coca-Cola's policies and procedures.

Thompson contends that Coca-Cola failed to "exercise[] reasonable

care to prevent and correct [the harassment] promptly," and failed

to show that Thompson "unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or

to avoid harm otherwise." Noviello, 398 F.3d at 94-95 (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). We

do not agree.

Under Massachusetts law, a hostile work environment is

one that is "'pervaded by harassment or abuse, with the resulting

intimidation, humiliation, and stigmatization, [and that] poses a

formidable barrier to the full participation of an individual in

the workplace.'" Cuddyer v. Stop & Shop Supermarket Co., 750

N.E.2d 928, 937 (Mass. 2001) (quoting College-Town, Div. of

Interco, Inc. v. Mass. Comm'n Against Discrimination, 508 N.E.2d

587, 591 (Mass. 1987)). The environment must be sufficiently

hostile or abusive in light of all of the circumstances, including

the "frequency of the discriminatory conduct; its severity; whether

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it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Faragher, 524 U.S. at 787-88

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Thompson points to only three instances that could

possibly constitute harassment that could create a hostile work

environment in the span of four years, and they were spread out

over that time. Harris's comment cannot be considered pervasive on

its face because she made the comment only on one occasion.

Moreover, Coca-Cola disciplined her and required her to take part

in sensitivity training. The comment was not directed at Thompson,

and by his own admission, he did not find it severely derogatory

towards him. Harris was not in Thompson's department and she had

no management responsibility towards him. See Fontánez-Núñez v.

Janssen Ortho LLC, 447 F.3d 50, 57 (1st Cir. 2006).

Taking as true that Goodsell made derogatory comments to

Thompson, the first alleged comment was made once during a social

event, not in connection with any work situation or any other

objectionable statements or conduct. More is needed to constitute

a hostile work environment. See Kosereis v. Rhode Island, 331 F.3d

207, 216 (1st Cir. 2003) ("A hostile work environment generally is

not created by a 'mere offensive utterance,' nor does it arise from

'simple teasing, offhand comments, and isolated incidents.'"

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(internal citations omitted)). Goodsell's alleged comments did not

rise to the level of severely hostile or abusive actions.

The second alleged comment by Goodsell occurred months

after the first alleged comment and months before Thompson's

vacation and subsequent termination in 2004. Even so, under Speen

v. Crown Clothing Corp., 102 F.3d 625 (1st Cir. 1996), "ambiguous

remarks, tending to suggest animus . . . are insufficient, standing

alone, to prove an employer's discriminatory intent." Id. at 636

(quoting Blare, 646 N.E.2d at 118 n.9). Thompson never reported

any of the alleged comments that Goodsell made to anybody. As

noted by the district court, Coca-Cola has "a comprehensive anti-

discrimination and workplace dispute resolution system, which

provides employees with several avenues for reporting incidents.

These avenues include a toll-free phone number to report issues of

concern, as well as the opportunity for a confidential consultation

with an ombudsman." Thompson v. Coca-Cola Co., 497 F. Supp. 2d.

80, 84 (D. Mass. 2007). Thompson concedes that he never made or

attempted to report any alleged incidents until after he was

terminated. See Fontánez-Núñez, 447 F.3d at 57 ("[T]he undisputed

facts establish that [defendant] had well established

antiharassment and antidiscrimination policies that included

procedures for employees to follow in airing grievances and that

[plaintiff] failed to take advantage of these procedures.").

Thompson's co-workers, who are of various races, acknowledge that

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Goodsell yelled at them at times, but they categorically deny that

he ever made racially charged or racially insensitive statements.

There is no evidence that Coca-Cola engaged in any type of

harassment of Thompson.

Thompson asserts that he suffered retaliation because he

engaged in protected conduct, and he was given poor performance

evaluations upon which his termination was ostensibly based. To

establish a prima facie case of retaliation, an employee must show

that (1) he engaged in protected activity; (2) he suffered an

adverse employment action; and (3) a causal link existed between

the protected activity and the adverse job action. See Noviello,

398 F.3d at 88. For a retaliation claim to "'survive a motion for

summary judgment, the plaintiff must point to evidence in the

record that would permit a rational factfinder to conclude that the

employment action was retaliatory.'" Santiago-Ramos v. Centennial

P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (quoting King

v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997)).

In Mole, the Massachusetts Supreme Judicial Court held

that in a retaliation claim the inference of causation arises only

"where adverse employment actions follow close on the heels of

protected activity." Mole, 814 N.E.2d at 341. If there is an

inference of causation, it has a limited lifespan, and "as the

elapsed time between these two event becomes greater, the inference

weakens and eventually collapses." Id. The only protected

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activity that Thompson could be considered to have engaged in was

complaining about Harris's comments, which occurred in the Spring

of 2002. Thompson did not make any other complaints, confidential

or otherwise, until after he was terminated. On the other hand,

once Harris's comment was brought to Coca-Cola's attention, Lasonde

took immediate, corrective action. As stated above, Harris had no

connection to, and no role in, Thompson's termination two years

later. Any allegation that Harris's comments affected his

performance evaluations is unsupported by the record.

Additionally, four of the six written corrective memoranda

addressing Thompson's poor performance were written before Harris's

comment. The two memos that were written after Harris's comment

were written by a supervisor against whom Thompson makes no claim,

and the memos were written to assist Thompson in improving his

performance. The memos in no way support his claim of retaliation.

Assuming the evaluations could be considered adverse employment

actions, Thompson has failed to demonstrate any causal link between

those evaluations and his complaint against Harris.

III. Conclusion

For these reasons, we affirm the district court's grant

of summary judgment.

Affirmed.

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