Ameen v. Amphenol Printed Circuits, Inc.

United States Court of Appeals
For the First Circuit

No. 14-1086

MURAD Y. AMEEN,

Plaintiff, Appellant,

v.

AMPHENOL PRINTED CIRCUITS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

Lauren S. Irwin, with whom Heather M. Burns and Upton &
Hatfield, LLP were on brief, for appellant.
Jonathan D. Rosenfeld, with whom Jennifer C. Brown and Wilmer
Cutler Pickering Hale and Dorr LLP were on brief, for appellee.

January 26, 2015
 THOMPSON, Circuit Judge. Einstein instructs that time is

relative to the observer.1 The observer in this case, defendant

Amphenol Printed Circuits, Inc. (Amphenol) learned that one of its

employees, plaintiff Murad Ameen, was shifting time by clocking out

for lunch while still at work, and then, once back on the clock,

leaving for a more leisurely lunch. A brief history of Ameen's

time revealed that he had been stealing time consistently for

years. Unfortunately for Ameen, in Amphenol's view, time is money.

Amphenol fired Ameen, and he filed suit alleging that the basis for

his termination was not theft of time, but retaliation for his

having taken FMLA leave. The district court awarded summary

judgment to Amphenol, a decision Ameen now appeals. Although he

succeeded in saving time in a bottle for some three years, his

words won't make wishes come true -- we reject his argument and

affirm the district court's grant of summary judgment to Amphenol.

I.

BACKGROUND

A. Time Off

Although it is tempting to begin with "once upon a time,"

we must first note that the underlying facts are largely

undisputed. Because the district court granted summary judgment

before any fact-finder could evaluate the competing evidence and

1
Einstein, Albert (1905), "Zur Elektrodynamik bewegter
Körper", Annalen der Physik 322 (10): 891-921.

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inferences, where accounts differ, we recount the facts in a light

as favorable to Ameen as the record will reasonably allow. See

McArdle v. Town of Dracut, 732 F.3d 29, 30 (1st Cir. 2013).

By the spring of 2012, Murad Ameen had worked for

Amphenol (a manufacturer of printed circuit boards) and its

predecessor, Teradyne, for nearly a dozen years. During that time,

he received positive performance evaluations, several raises, and

was promoted to the position of Group Leader. As Group Leader, in

addition to operating the company's drill machines, Ameen was

responsible for leading the other operators on the second shift,

and assisting in planning overtime staffing to meet customer

demand.

That spring, Ameen was anticipating the birth of his

second child. He requested and received a two-week leave under the

Family and Medical Leave Act ["FMLA"], from March 12 to March 26,

as well as a one-week extension. During most of that time, Ameen

worked a reduced schedule. Ameen then returned to full-time work,

but declined requests to work overtime, citing his wife's poor

postpartum health. Although both Ameen and Amphenol agree that

overtime was not "mandatory," whether it was expected is a matter

of some dispute.

On April 4, 2012, Ameen requested a personal leave of

three and a half weeks, from April 26 to May 21. This was not FMLA

leave, but rather, time off to accommodate a trip to his native

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Iraq.2 The next day, Ameen met with his supervisor, Joseph Silva,

Operations Manager Raymond Pratt, and Director of Human Resources

Valerie Hartlan to discuss his request, as Amphenol's policy

requires management approval of personal leaves greater than two

weeks. At the meeting, Pratt expressed concern that the timing

"wasn't ideal" because it was a busy time for the company. Ameen

responded that he intended to go to Iraq whether or not the company

granted his request. Pratt warned Ameen that even if the company

approved his leave, they could not guarantee that he would be able

to retain his Group Leader position because "we may have to put

somebody . . . in that position to be able to . . . lead the

department." According to Silva, on a prior occasion when a Group

Leader took a leave of absence, the company placed another employee

in that position and moved the demoted Group Leader to another

shift. At some point during the meeting, Ameen agreed that he

would "help out" with overtime after his return from leave. Pratt

and Silva approved Ameen's leave, and upon his return, he retained

his position, salary, and benefits. Amphenol also spread out

Ameen's accrued vacation time over the weeks of his leave, to

ensure he could pay for his benefits.

2
The purpose of the trip was to get a birth certificate for
his son, and to "get his wife's maternity leave from her government
job in Iraq."

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 B. Time Away

In the meantime, on April 12, 2012, while working prior

to the Iraq trip, Ameen failed to follow the proper procedure in

setting up a job on a drill machine. Thereafter, during his lunch

break, the machine stopped. When Ameen returned, he attempted to

rework the job, but he failed to communicate the mechanical issues

to his supervisor or anyone from the next shift, as was required by

company policy. The problem continued during the next shift,

resulting in lost production time.

The event was investigated and, according to Pratt, when

Ameen was confronted with the results of the investigation, he

"didn't hide that he made the mistake." The engineer who

investigated the event brought the issue to Operations Director

Christine Harrington, who concluded that Ameen had tried to "cover

up" his mistake by reworking the job without reporting it. On

April 16, 2012, Ameen was issued a written warning for not

following proper procedure. The warning stated, "this behavior is

unacceptable [and] cannot be tolerated. If this type [of] behavior

continues[,] further action may be taken up to and including

termination." Ameen signed the "Employee Statement" section of the

warning, agreeing that he "concur[red] with the Company's

statement." This was the second warning Ameen had received.3

3
In 2009, Ameen had received a written warning for failing to
follow proper procedure, resulting in "4 panels being scrapped."

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 C. Time Out

Ameen returned from his personal leave in late May.

Despite his earlier promise, Ameen continued to decline overtime.

Pratt admits expressing disappointment over Ameen's failure to sign

up for overtime as previously discussed. Ameen characterizes

Pratt's response as more than disappointment. He alleges that

Pratt "got mad" when he declined the overtime even though Pratt

knew Ameen needed time to be with his family.

On June 22, 2012, first shift Group Leader Paul Conners

reported to Pratt that two of Ameen's co-workers, Donny Moses and

Mike Sullivan, accused Ameen of "cheating on his timecard."

Specifically, Conners told Pratt that Ameen was "outside the

department for extended periods of time." Amphenol's policy allows

for a thirty-minute unpaid lunch break and a fifteen-minute paid

break, for a total of forty-five minutes of break time.

Following his conversation with Conners, Pratt contacted

Hartlan in Human Resources and asked her to gather Ameen's ADI

timecard records, as well as the data from the company's CCure door

security system that would show when Ameen had entered and exited

the building. These records revealed that Ameen would punch out of

the ADI system at some point every day for approximately thirty

minutes, but would continue working; then, at another time, he

would leave the property for approximately an hour. In this

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manner, he was compensated for an additional fifteen minutes of

time he did not work.

After reviewing the records, Pratt met with his

supervisor, Harrington, and she directed him to investigate

further. After personally observing Ameen during his shift while

he clocked in and out and remained at his post, Pratt reported back

to Harrington. She then reviewed Ameen's ADI and CCure records for

the previous two years. The records showed that Ameen had been

maintaining this practice for the entire two-year period.

Harrington decided Ameen should be fired, and she

directed Pratt to draft a termination notice. Pratt wrote a first

draft of the document, which referenced the ADI and CCure records

and stated that Ameen's practice of leaving for an hour a day

amounted to "stealing 2.5hrs a week from the company at a rate of

$17.19/hr or $2,234.70/year." That Ameen was "on his cell phone

throughout the shift" -- another violation of company policy -- was

also noted.

Pratt then met with Ameen's supervisor, Silva, and showed

him the draft. Silva told Pratt that a few years earlier, Ameen

had asked if he could combine his paid fifteen-minute break and his

unpaid thirty-minute lunch, so he could go home and eat with his

wife. Silva gave him permission, fully knowing that Ameen would

have to punch in and out for thirty minutes while still working.

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However, a total of forty-five minutes was all he says he

authorized.

Pratt reported to Harrington that Silva admitted giving

Ameen permission to combine his two breaks; nevertheless,

Harrington still determined Ameen's termination appropriate for his

effectively stealing from the company by consistently taking

additional paid break time. Harrington's decision to terminate

also took into consideration the warning Ameen received two months

prior for "covering up" his production mistake. It is undisputed

that, at the time Harrington decided to fire Ameen, she did not

know he had taken FMLA leave. Further, she did not know he had

been declining to work overtime.

After his meeting with Harrington, Pratt revised the

termination document to note that Ameen's practice of taking a "1/2

hour paid break and 1/2 hour unpaid lunch" was "not policy, [and]

not approved by any [Amphenol] management." The final draft did

expressly acknowledge that, while the policy deviation was not

approved by senior management, Ameen had approval at the supervisor

level to take a forty-five minute break by combining his fifteen

minute paid and thirty minute unpaid breaks. Further, the draft

stated that the extra fifteen minutes of unauthorized break time

cost the company "1.25 hours of labor per week." The final version

also noted Ameen's falsified timecard routine, and the April 16,

2012 written warning he had received.

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 D. Time's Up

On June 27, 2012, Pratt met with Ameen to notify him of

his termination, and to review the termination document with him.

Pratt went over the ADI and CCure data with Ameen and explained he

was being fired for stealing time from the company. Ameen refused

to read or sign the termination document. Instead, he retorted, "I

know this is not about ten, [fifteen] minutes. This is about you

picking on me because I haven't been able to give you much overtime

because of my wife's situation. I [have] been taking FMLA leave."

According to Ameen, Pratt replied, "do you have proof of that?"

Ameen filed suit against Amphenol, alleging that Amphenol

violated the FMLA, 29 U.S.C. §§ 2601-2619, by retaliating against

him for taking family leave. Ameen claimed that his FMLA-protected

activity was a motivating factor in Amphenol's decision to

terminate his employment. Ameen characterized this activity as

including both his formal FMLA leave, and his decision not to work

overtime upon his return, which he terms "informal FMLA leave."

Amphenol moved for summary judgment. After entertaining oral

argument, the court granted judgment to Amphenol. In its ruling on

Ameen's retaliation claim, the district court employed a four-step

approach. First it "assume[d] that Ameen had carried the light

burden" of proving a prima facie case of retaliation. The court

then found that Amphenol had articulated a legitimate,

nondiscriminatory reason for its decision to terminate Ameen. The

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court next determined that, because Harrington did not know about

Ameen's FMLA-protected activity, Ameen would need to invoke the

cat's paw theory to impute Conners's or Pratt's animus to her as

the decision-maker. The "cat's paw theory" is employed when one

"seeks to hold his employer liable for the animus of a supervisor

who was not charged with making the ultimate employment decision."4

Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190 (2011). However,

the court concluded that Ameen "ha[d] produced no facts from which

a reasonable jury could conclude that either Conners or Pratt acted

in a way that would justify invocation of the cat's paw theory,"

and thus Ameen could not establish that Amphenol's reason was a

pretext for retaliation under the FMLA. The district court entered

judgment in favor of Amphenol, and this timely appeal followed.

II.

Standard of Review

We review the district court's grant of summary judgment

to Amphenol de novo, "assessing the record in the light most

favorable to the nonmovant and resolving all reasonable inferences

in that party's favor." Barclays Bank PLC v. Poynter, 710 F.3d 16,

19 (1st Cir. 2013) (internal quotations omitted). Summary judgment

4
With apologies to our fellow ailurophiles, we can report that
the name derives from a fable in which a cunning (and hungry)
monkey induces a cat by flattery to reach its paw into a fire to
extract roasting chestnuts; the monkey feasts alone on the
chestnuts after the cat scorches its paw. Id. at n.1.

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is properly granted "where 'there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law.'" Id. (quoting Fed. R. Civ. P. 56(a)). "A dispute is

'genuine' if a reasonable jury, drawing favorable inferences, could

resolve it in favor of the nonmoving party." Velázquez-Pérez v.

Developers Diversified Realty Corp., 753 F.3d 265, 270 (1st Cir.

2014) (internal quotations omitted). "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." Benoit v. Technical Mfg.

Corp., 331 F.3d 166, 173 (1st Cir. 2003) (internal quotations

omitted).

III.

Discussion

Ameen makes several arguments on appeal, the major thrust

of which is that genuine issues of disputed facts exist, and

summary judgment was inappropriate because the district court

improperly weighed evidence and failed to draw all reasonable

inferences in his favor. Ameen further challenges the standard the

court employed for cat's paw liability, but argues that even

assuming the standard used was correct, the district court should

have denied summary judgment. We will discuss the finer points of

his arguments in context.

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 Under the FMLA, employers are "prohibited from

discriminating against employees . . . who have used FMLA leave."

Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir.

1998) (citing 29 C.F.R. § 825.220(c)). Nor may an employer "use

the taking of FMLA leave as a negative factor in employment

actions, such as hiring, promotions or disciplinary actions." Id.

(quoting 29 C.F.R. § 825.220(c)). Ameen claims his FMLA-protected

activity was "a motivating factor" in his termination, and although

he argues that the protected activity included both his formal

leave and his refusing to work overtime, nowhere does he focus on

the formal FMLA leave. Instead, he contends that attitudes toward

him changed as a result of his refusing to work overtime for "FMLA-

protected reasons," and that his termination was motivated by

retaliation for that conduct. Because the question of whether the

employer took the adverse action for a legitimate or retaliatory

reason is analogous to the question of intent raised in Title VII

employment-discrimination actions, we employ the framework set

forth in McDonnell Douglas Corp. v. Green to analyze "the tricky

issue of motivation." Id. (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 800-06 (1973)).

The McDonnell Douglas framework is a three-step

procedure. First, a plaintiff employee must carry the initial

burden of coming forward with sufficient evidence to establish a

prima facie case of discrimination or retaliation. McDonnell

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Douglas, 411 U.S. at 802. To meet this burden, Ameen must show

that "(1) he availed himself of a protected right under the FMLA;

(2) he was adversely affected by an employment decision; (3) there

is a causal connection" between his protected activity and

Amphenol's decision to terminate him. Hodgens, 144 F.3d at 161.

If the plaintiff establishes a prima facie case, the burden shifts

to the employer "to articulate some legitimate, nondiscriminatory

reason" for the termination. Id. at 160. If the employer can

proffer evidence "sufficient to raise a genuine issue of fact as to

whether it discriminated against the employee . . . the presumption

of discrimination drops from the case, and the plaintiff retains

the ultimate burden of showing that the employer's stated reason

for terminating him was in fact a pretext for retaliating against

him for having taken protected FMLA leave." Hodgens, 144 F.3d at

160-61 (citing McDonnell Douglas, 411 U.S. at 802, 804).

A. Prima Facie Case

The district court assumed that Ameen established a prima

facie case of retaliation, and further assumed without deciding

that his protected conduct included both his FMLA leave and his

decision not to work overtime after returning from his (non-FMLA)

personal leave. As Ameen's claim fails for the reasons we explain

below, we will take a similar tack. See Collazo-Rosado v.

University of Puerto Rico, 765 F.3d 86, 92-93 (1st Cir. 2014)

(noting "[t]he simplest way to decide a case is often the best,"

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and assuming without deciding that the plaintiff had established a

prima facie case of retaliation, before holding that she failed to

present a triable issue of fact as to pretext).

B. Legitimate Reason

Having given Ameen the benefit of a prima facie

assumption, the burden shifts to Amphenol to provide a legitimate,

nondiscriminatory reason for its decision to terminate Ameen.

Amphenol asserts that Ameen was fired for stealing from the company

by consistently taking unauthorized paid break time. The company

also says it rightly considered Ameen's previous warning for

failing to follow procedure.5

Ameen challenges Amphenol's proffered reason for the

termination, but does not dispute the evidence which demonstrates

that he took an additional fifteen minutes or so of paid break time

consistently over a two-year period. In fact, in his brief, Ameen

admits to maintaining this practice for three years, but insists he

had permission to do so. Nonetheless, Ameen concedes that it was

conditioned upon his making up for the extra time.6 It is

5
Ameen does not challenge the warning he received in April,
although he now characterizes it as "exaggerated" and "unusually
detailed." However, he acknowledges he signed the warning and
checked off the box indicating he concurred with it.
6
On appeal, Ameen puts a spin on the notion of making up the
time. He claims that he was entitled to the extra time as long as
he "got his work done," irrespective of how long he remained at
work. It was sufficient, he argues, if he made up "fifteen minutes
of work (not time) during the day." Yet the record does not
support his factual assertion. During his deposition, Ameen

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undisputed that Ameen did not put in additional time to make up for

the extra fifteen minutes a day.

There is no question then, that as the district court

found, Amphenol had a legitimate basis to terminate Ameen; the

paramount question, however, is whether the district court erred

when it found Ameen had failed to raise a genuine issue of material

fact as to pretext, and that Amphenol was entitled to judgment as

a matter of law.

C. Pretext

Under the McDonnell Douglas framework, the burden thus

shifts back to Ameen to prove that Amphenol's stated reason was a

pretext intended to disguise its retaliation for his engaging in

FMLA-protected activity.7 To demonstrate that he was fired in

retaliation for engaging in FMLA-protected conduct, Ameen "must

show that the retaliator knew about [his] protected activity --

after all, one cannot have been motivated to retaliate by something

he was unaware of." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139

(1st Cir. 2013). This is where Ameen's case fails to land on its

admitted Silva conditioned the extra fifteen minutes upon Ameen's
coming in early or staying late to make up the time. It is
undisputed that Ameen never made up the time by either coming in
early or staying late off the clock. We note that the ADI system
tracked time to the minute, rather than the quarter hour.
Amphenol's employees were paid for the time they worked, not for
the amount of work they produced. Nothing in the record permits us
to conclude that Ameen was the one exception.
7
Again, like the district court, we assume without deciding
that Ameen's refusal to work overtime was FMLA-protected conduct.

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feet. It is undisputed that Harrington, who made the ultimate

decision to terminate Ameen, did not know that he had taken FMLA

leave, and did not know that he was declining overtime. Ameen's

only hope, then, lies in the cat's paw theory.

1. Cat's Paws

In invoking the cat's paw theory, Ameen attempts to prove

that either Conners or Pratt were motivated by animus when they

reported his timecard activities to Harrington. In Cariglia v.

Hertz Equip. Rental Corp., we held that corporate liability can

attach when a neutral decisionmaker "rel[ies] on information that

is manipulated by another employee who harbors illegitimate

animus." 363 F.3d 77, 86-87 (1st Cir. 2004) (holding that an

employee's supervisor's animus could be imputed to the

decisionmaker). Subsequently, the Supreme Court, in Staub v.

Proctor Hospital, determined that cat's paw liability can attach if

an employee performs an act motivated by animus that is intended to

cause an adverse employment action, and if that act is a proximate

cause of an adverse employment action. 131 S. Ct. 1186, 1190, 1194

(2011) (applying the Uniformed Services Employment and Reemployment

Rights Act to a case involving antimilitary animus). Both cases

involved supervisors who provided false or misleading information

to a decisionmaker.

Ameen argues that the district court incorrectly applied

a "heightened standard" by reading Cariglia to require that the

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information provided to a decisionmaker must be "inaccurate,

misleading or incomplete." Rather, Ameen contends that the Staub

standard should apply, which he suggests is more liberal than

Cariglia's. According to Ameen, Staub does not require the

reporting of inaccurate or misleading information; instead, all

that is needed is an act by an employee (i.e. the reporting of even

accurate information) motivated by animus that is intended to

cause, and indeed does cause, an adverse employment action.

However, we have no need to parse these two interpretations as

Ameen misses the critical point in both cases; both standards

absolutely require a finding that the person who provided the

information was motivated by retaliatory animus. Accordingly, on

that front, they are but two paths to the same end, taking as their

first step a finding of retaliatory animus. It is upon that step

that Ameen's claim trips.

2. Animus Claims Against Conners

To prevail in his claim, Ameen must establish that

Amphenol's reason for terminating him was a pretext for retaliatory

animus. Ameen contends that the district court overlooked evidence

that would establish that the employees who reported the

information about his break time to the ultimate decisionmaker were

motivated by animus. Beginning with first shift Group Leader

Conners, Ameen argues that Conners's very reporting to Pratt

(Operations Manager) the information he received from Moses and

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Sullivan (Ameen's co-workers and subordinates) about Ameen's

extended breaks is proof of retaliatory animus because of how

differently Conners dealt with his own subordinates on this issue.

Ameen argues that when Conners's subordinates took additional break

time, he only chastised them for doing so, but never otherwise

disciplined them, nor reported them to higher-ups. On this point,

Conners's unrebutted deposition testimony established that when a

member of his crew was "five minutes late" returning from break, he

spoke to them about it and received the assurance that "it won't

happen again." Had the behavior been repeated, Conners stated that

he would have "elevate[d] that to the supervisor." Ameen points to

no other similarly-situated employee who consistently took an extra

fifteen minutes off every day as he did who received more favorable

treatment from Conners. Given these facts, Conners's mere

reporting of Ameen up the corporate food chain is insufficient to

demonstrate animus.8

Ameen also posits, in support of his animus claim, that

Conners was "hostile" towards him because Conners was "frustrated"

about having to work overtime due to Ameen's no-overtime schedule.

8
After this lawsuit was filed, Amphenol took note of Ameen's
allegation that "[o]ther employees in [his] department followed the
same practice," and conducted an investigation. The ADI and CCure
records showed that from January 2012 to June 2012, the co-tipster
Donny Moses had been clocking out while remaining at work, then
leaving for an hour. Like Ameen, Moses was then terminated.
There is no evidence that Amphenol knew of this practice before
Sullivan -- and ironically, Moses -- brought Ameen's conduct to
Conners's attention.

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Other than pointing to Conners having reported Ameen's extended

breaks to superiors, Ameen gives us no other explanation or

evidence of this hostility. Conners denied any display of

frustration, and stated that he reported the information to Pratt

because, as a twenty-five year employee, "I wouldn't cheat on my

time, and I don't expect other people to do that. That's

stealing." Regardless of Ameen's opinion on what may have

motivated Conners to report his extended break times, his

"subjective belief in retaliation is not enough" to show animus on

Conners's part, and no objective evidence in the record supports

his animus theory. Roman v. Potter, 604 F.3d 34, 41 (1st Cir.

2010).

3. Animus Claims Against Pratt

Alternatively, Ameen describes a number of ways in which

Pratt's behavior demonstrates animus. First, and identical to his

Conners argument, he says that because Pratt had never before

escalated the issue of extended breaks to Harrington when dealing

with allegedly similarly-situated employees, the fact that he

elevated the issue of Ameen's break time to Harrington is proof

sufficient to infer animus. In rebuttal, Amphenol repeats it had

never before encountered a case in which an employee had

consistently combined two breaks and then took an additional

unauthorized quarter hour on top of that. Nothing in the record

contradicts this assertion.

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 Moreover, Pratt did not just pass along the tip after

receiving it; he conducted his own investigation by requesting and

reviewing Ameen's ADI and CCure records for the previous month; and

only when he had satisfied himself that the alleged practice was

actually occurring did he bring the matter to Harrington. The mere

fact of an investigation -- particularly one spurred by a violation

of company policy -- is not proof of animus and nothing else in the

record suggests that the investigation was motivated by animus. It

bears repeating that "[e]ven 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." Benoit, 331 F.3d at 173 (internal

quotations omitted). The record before us does not support Ameen's

allegations.

Second, and grasping for straws, Ameen contends in

support of his animus claim that Pratt misled Harrington about the

warning Ameen had received in April, leading her to believe that a

"cover up" occurred. Specifically, Ameen states that he "was not

asked about the error on the night in question, and clearly

admitted the mistake to Pratt when asked, and therefore Pratt

acknowledged that there was no effort to cover up the mistake."

The record, however, makes plain that Ameen is playing cat and

mouse with the facts. That he was not asked about the error on the

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night in question is irrelevant if clear company protocol required

that he relay that information when "tying off" with the next

shift. Harrington stated that she reached her own independent

conclusion that Ameen "tried to cover up a scrap event" when the

investigating engineer "was able to show that the panel had been

drilled twice, the first time with an incorrect setup, the second

time to fix the problem that had been created by the first issue."

It was that action, of covering up a work mistake and not following

reporting procedure, to which Harrington referred. That Ameen

admitted to the mistake once confronted with it by Pratt is beside

the point. There is no evidence that Pratt misled Harrington about

the nature of the event, and no evidence that his reporting the

information was motivated by animus.

Third, Ameen next cites as proof of animus that Pratt

both "withheld" from Harrington the fact that he "had permission to

misuse the timeclock system," and failed to apprise Harrington of

Ameen's earlier FMLA leave. Harrington made clear, however,

without contradiction, that it was Ameen's taking of an additional

fifteen minutes of time each day -- not the use of the time clock

system per se -- that she viewed as terminable misconduct. As for

not sharing with Harrington Ameen's FMLA schedule, he does not

explain why Pratt should have done so, nor does he tell us why not

doing so demonstrates animus.

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 Lastly, in support of his Pratt animus argument, Ameen

claims that Pratt was angry that he wouldn't work overtime.

However, Ameen does not tell us the basis for this impression, and

does not recount specific words or any particular behavior that

would indicate anger. He offers us only a conclusory allegation.

Further, he says that both Pratt and Conners "had shown hostility

toward [his] FMLA-protected activity," and that Pratt's attitude

toward him changed after he returned from FMLA leave. Ameen

directs us to only one specific example of so-called hostile

conduct -- his inclusion, according to Silva, on Pratt's purported

"I don't like" list.9 However, even assuming the existence of such

a list, there is no evidence to tie it to Ameen's FMLA-protected

conduct. Similarly, there is nothing to connect Ameen's general

and vague allegations of hostility by Pratt to Ameen's FMLA-

protected activity, if any, rather than to his unauthorized breaks.

"[A]lthough an employee who properly takes FMLA leave cannot be

discharged for exercising a right provided by the statute, [he]

nevertheless can be discharged for independent reasons." Henry v.

United Bank, 686 F.3d 50, 55 (1st Cir. 2012).

Moreover, we note that evidence in the record completely

contradicts Ameen's assertion of animus on Pratt's part. During

9
Although Ameen claims that Silva told him about Pratt's
supposed list, there is no deposition testimony in the record from
either Silva or Pratt about any list. How Ameen's account could be
admissible evidence is beyond us.

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this period of claimed anger and hostility, Pratt agreed to allow

Ameen to take over three weeks of personal leave shortly after his

FMLA leave, when he had the discretion to refuse; and Pratt allowed

it despite Ameen's statement that he would go whether or not the

personal leave was approved. If Pratt were looking for a reason to

get rid of Ameen for exercising his FMLA rights, he could have

simply denied the personal leave and fired Ameen if he went anyway.

Instead, Amphenol "spread out" Ameen's vacation days over the

course of the leave, so that his benefits would be covered.

CONCLUSION

As stated earlier, Ameen has the burden of proving that

Amphenol's stated reason for his termination was a pretext, and

because Amphenol proffered a legitimate basis for terminating

Ameen, he must do so "without the benefit of the animus

presumption."10 Id. at 56. To prove pretext, he had to establish

the existence of retaliatory animus on the part of either the

decisionmaker, or the employee who purportedly manipulated the

decisionmaker into acting as his "cat's paw." Once the presumption

of animus creeps out, Ameen cannot clear this initial step. Ameen

has not offered evidence of retaliatory animus on anyone's part

10
Nevertheless, Ameen claims that because he "satisfied the
causation requirement for [his] prima facie case," his proffered
evidence of pretext should be sufficient to defeat summary
judgment. It is not. Although we assumed Ameen established a
prima facie case, once Amphenol articulated a legitimate,
nondiscriminatory reason for the termination, there was no basis to
carry that assumption forward into the pretext analysis.

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sufficient to raise a disputed question of fact, or to defeat

Amphenol's right to judgment as a matter of law. Absent

retaliatory animus, there can be no pretext. Our de novo review

reveals that Ameen's cat's paw theory is effectively declawed.

Accordingly, we affirm the district court's entry of summary

judgment. Each side shall bear its own costs in this appeal.

- Concurring Opinion Follows -

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 KAYATTA, Circuit Judge, concurring.

I concur in affirming the judgment of the district court

dismissing the complaint, albeit for a reason the majority does not

reach. No party disputes that Operations Director Christine

Harrington was the person who in both form and substance decided to

fire the plaintiff. Ameen does not point to any evidence

suggesting that, having independently confirmed that Ameen did

commit the serious misconduct with which he was charged, Harrington

either herself had any improper motive, or that she knew or

reasonably should have known that Pratt had an improper motive.

Therefore, even if we accept that Ameen has enough evidence to

support a finding that Pratt was motivated to seek his discharge

for reasons other than the conduct reviewed by Harrington, there

would still be no basis for holding his employer vicariously

liable. Cf. Vélazquez-Pérez v. Developers Diversified Realty

Corp., 753 F.3d 265, 274 (1st Cir. 2014) (holding that an employer

can be held liable for a co-worker's discrimination under Title VII

if, among other things, the employer "knows or reasonably should

know" of the discrimination) (parentheses omitted).

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