dissenting.
I respectfully dissent from the denial of en banc rehearing for all of the reasons Judge Torruella sets forth in his dissent. I write separately to add one additional point.
We recognized in Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83 (1st Cir.2004), that corporate liability for discrimination could attach if a neutral deci-sionmaker relied on information that was *24inaccurate, misleading, or incomplete because of another employee’s discriminatory animus. The Captain testified that he conveyed to the SOC what the flight attendants had reported to him, and the jury had evidence before it supporting an inference that at least one flight attendant’s information may have been race-based. As such, the plaintiff would be entitled to rely on a Cariglia theory that corporate liability could attach because the SOC manager relied on information that was inaccurate, misleading, or incomplete because of a flight attendant’s discriminatory animus.
As the panel decision notes, we have not previously applied this theory of corporate liability to a discrimination claim under 42 U.S.C. § 1981. However, we have noted that the standards of liability under § 1981, Title VII, and the Massachusetts state employment discrimination statute (under which Cariglia arose) are substantially identical. Villanueva v. Wellesley College, 930 F.2d 124, 127 n. 2 (1st Cir.1991); see also T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 722, 724 (1st Cir.1981) (applying the McDonnell Douglas framework, developed under Title VII, in a non-employment § 1981 case); cf. Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13 (1st Cir.1999) (noting that the list of activities protected under § 1981 now includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” tracking the language of Title VII’s prohibition on discrimination with respect to “compensation, terms, conditions, or privileges of employment”). Against this backdrop, the panel’s conclusion that Car-iglia should not extend to the rebooking decision is dubious.
The panel concludes that “[t]he § 1981 claim against the SOC manager’s decision was derivative of the § 1981 claim against the Captain’s decision” because the SOC manager had only the information conveyed to him by the Captain. I respectfully submit that this conclusion is flawed. The SOC manager made a separate decision as to whether the passenger could be rebooked on a flight that was scheduled to depart hours later. In doing so, he may have relied — perhaps unwittingly — on information tainted by a flight attendant’s racial animus. While the law affords the Captain great latitude because his decision must be made quickly, the SOC manager — and American Airlines as a whole — is not entitled to piggyback on that first decision and thereby multiply any discriminatory animus underlying it. This conflation of the Captain’s decision and the SOC manager’s decision should have been considered and corrected by the en banc court. Accordingly, I dissent from the denial of en banc review.