Randlett v. Shalala ( 1997 )


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  • USCA1 Opinion








    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-1950

    JEAN M. RANDLETT,

    Plaintiff, Appellant,

    v.

    DONNA E. SHALALA, SECRETARY,
    DEPARTMENT OF HEALTH AND HUMAN SERVICES,

    Defendant, Appellee.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Douglas P. Woodlock, U.S. District Judge]

    ____________________

    Before

    Boudin, Circuit Judge,

    Aldrich, Senior Circuit Judge,

    and Lynch, Circuit Judge.

    ____________________

    Robert Le Roux Hernandez for appellant.
    Lori J. Holik, Assistant United States Attorney, with whom Donald K.
    Stern, United States Attorney, was on brief for the United States.


    ____________________

    July 10, 1997
    ____________________






    BOUDIN, Circuit Judge. This appeal brings to the court

    the most recent chapter in a 20-year quarrel between a federal

    department and its former employee, Jean Randlett. It presents

    an important legal issue concerning the reach of the protection

    afforded by Title VII of the Civil Rights Act of 1964, 42

    U.S.C. S 2000e et seq. We hold that Title VII can offer

    protection against a retaliatory refusal to transfer an

    employee, but that no evidence existed here to show

    retaliation.

    I.

    Because Randlett's claims were resolved against her on

    summary judgment, we state the facts in the light most

    favorable to her. Sargen t v. Tenaska, Inc., 108 F.3d 5, 6 (1st

    Cir. 1997). In 1975, Randlett worked in Denver in the Office

    of Civil Rights of the Department of Health, Education and

    Welfare as an equal opportunity specialist with a civil service

    grade of GS-12. She applied for a promotion to a GS-13

    position in Denver but was denied promotion in favor of another

    candidate. A few months later, in August 1975, she was

    terminated.

    Randlett filed a complaint with the Equal Employment

    Opportunity Commission, alleging discrimination based on gender

    and national origin (she is white and of European descent).

    Six years later, the EEOC ruled in her favor, finding that the

    record showed "[n]o other credible reason for [her]



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    nonselection . . . other than the fact that the selecting

    official wanted to insure that the Hispanic male was awarded

    the GS-13 position." It found that Randlett's discharge was

    similarly motivated by discriminatory animus. In particular,

    the EEOC found that the official who considered Randlett's

    promotion had applied pressure on the selecting panel to alter

    its rankings, which favored Randlett, so that the job could go

    instead to a friend of the selecting official.

    The EEOC's 1981 order directed the Department, now

    metamorphosed into Health and Human Services ("HHS"), to cancel

    Randlett's 1975 discharge and to "immediately reinstate"

    Randlett in the Denver office as an equal opportunity

    specialist, grade GS-13. The order also awarded Randlett back

    pay and other entitlements for the period since her

    termination, and it required HHS to report within 30 days as to

    the steps it planned to take to implement the required action.

    In late June 1981, Randlett began what would be an

    extensive exchange of telephone calls and correspondence,

    primarily with Thomas Jefferson, an HHS official based in

    Washington, D.C., who was apparently charged with coordinating

    Randlett's reinstatement. She also talked with Patricia

    Taphorn, a personnel official in the Denver office. The

    upshot, according to Randlett, was an agreement that she would

    return to the payroll of the HHS Denver office as of August 9,





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    1981, but by using four weeks of accumulated leave, would not

    actually report for work until early September 1981.

    According to both Randlett and Taphorn, Jefferson was very

    difficult to reach over the course of the summer and did not

    act quickly enough to confirm this understanding, nor would

    anyone else in the Washington office take responsibility for

    doing so. We pass over the details, but there is no indication

    that anything other than bureaucratic sloth was the cause. In

    any event, in August 1981, Randlett signed a contract with her

    then-current employer, the Barnstable, Massachusetts, school

    system, extending her employment there for an additional year.

    Not long afterwards, Randlett received a letter from

    Jefferson, confirming that she was reinstated in the Denver

    office as of September 1981; he also referred to the

    possibility of a transfer to another regional office, but said

    that this was not certain. Further telephone calls were

    exchanged, and the matter was still unresolved in October 1981,

    when Randlett's father became seriously ill. Randlett then

    told Jefferson that she would need to stay in Massachusetts to

    care for her father.

    After further confusion, Randlett in February 1982 secured

    from another HHS official in Washington a temporary "detail" to

    a Boston HHS office, effective March 1, 1982, for a period of

    not more than 120 days. The official--Betty Lou Dotson,

    director of the Office for Civil Rights--wrote Randlett that



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    the detail was "granted to accommodate your personal situation"

    and concluded by saying that "I trust this detail will give you

    the opportunity to attend to your personal responsibilities."

    Randlett resigned from her schoolteaching position and

    began working in the Boston HHS office in March 1982. By then,

    her father had died, but her aging mother's health was failing.

    Randlett also claims that, almost immediately, she began to

    experience problems in the Boston HHS office because of

    inadequate training on work assignments, that she received a

    "low satisfactory" ranking in an evaluation, and that she was

    listed at a GS-12 level in Boston (even though she continued to

    receive a GS-13 salary).

    According to Randlett, Jefferson called her in May 1982

    and asked her when she planned to return to Denver. Randlett

    replied that she thought her position in Boston was permanent,

    but in June 1982, she sent a letter to HHS in Washington,

    requesting a permanent assignment to the Boston office, saying

    "this is an unusual request, but probably no more unusual than

    the six and a half years of injustices" that she had endured.

    It appears that Randlett also had a telephone conversation on

    the subject with Bart Crivella, Jefferson's supervisor.

    In early July 1982, the request was answered in writing by

    Nathan Dick, the deputy director of the Office for Civil

    Rights. Dick's letter denied the transfer request but said

    that HHS was willing to extend the temporary detail in Boston



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    until September 30, 1982, with Randlett returning on October 1,

    1982, to her "permanent duty station in Denver." The letter

    explained:

    [I]t is not possible for the Office for Civil Rights
    to offer you a permanent assignment in Boston. Your
    requested assignment and subsequent detail to Boston
    was a temporary action taken only to accommodate you
    during the adjustment period after the death of your
    father. . . . However, the recent RIF actions in
    the regions and the continuing ceiling and budgetary
    constraints have eliminated practically any
    potential options for this office [in Washington] to
    assign you to the Boston office on a permanent
    basis.

    In September, Randlett received another letter from Dick

    requesting her to report for work in Denver on October 1, 1982.

    Randlett then filed a complaint with the EEO officer in Boston,

    alleging that Washington officials were retaliating against her

    "for having filed a previous complaint in Denver . . . which

    was resolved in my favor." Randlett's new complaint named as

    the persons who had retaliated against her Jefferson, Dick and

    Crivella.

    Instead of reporting to work in Denver on October 1, 1982,

    Randlett arranged to use accrued leave credits to stay in

    Boston for the remainder of the year. In November 1982,

    Randlett's prospective supervisor in Denver, Alex Aguilar,

    confirmed the request for leave from October 1 to December 31,

    1982; but the letter also said that Aguilar expected Randlett

    to report for work on January 3, 1983, and that he would





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    consider any request for further leave to be "unreasonable and

    not in the best interests of our organization."

    Randlett then asked Aguilar for leave-without-pay status

    after December 1982. Aguilar refused, saying that Randlett's

    "prolonged" absence was detrimental to his office. Randlett

    then asked for sick leave. Aguilar wrote that the agency might

    be able to make health-related accommodations for her in Denver

    so long as she documented her ailments; but some two weeks

    later Aguilar told Randlett that the documents she submitted

    were not adequate. In March 1983, Randlett resigned, saying

    that it was done involuntarily to prevent any "additional

    harassment" from Aguilar or "any other further retaliatory

    acts."

    Randlett's September 1982 complaint--directed against the

    three named Washington officials--was originally rejected by

    HHS on the ground that it was untimely, but this ruling was

    reversed by the EEOC in 1985. Incredibly, the ensuing HHS

    internal investigation lasted over seven years. In August

    1992, an HHS administrative law judge denied Randlett's claim

    of retaliation. His denial was sustained by the EEOC in

    November 1993.

    In December 1993, Randlett filed her present complaint in

    the federal district court under Title VII. The core of the

    complaint was that "[a]lthough HHS had full power and authority

    to assign plaintiff a permanent position in the Boston office,



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    it unreasonably refused to do so in order ultimately to force

    plaintiff to resign." The complaint attributed this refusal to

    retaliation for Randlett's successful 1975 complaint against

    the department, saying that hardship transfers were routinely

    granted to individuals with hardship requests similar to or

    less serious than Randlett's.

    Randlett also charged that she had been given an improper

    "low satisfactory" performance rating and inadequate training

    in Boston. She asked for "[r]einstatement to her position in

    Boston" with back pay and benefits and reimbursement for some

    health insurance premiums and out-of-pocket medical expenses.

    She also sought compensatory and punitive damages of $1 million

    each.

    After a period of discovery, HHS moved for summary

    judgment. It argued that the denial of permanent transfer was

    not an adverse employment action under Title VII, and that the

    agency had made an effort to accommodate Randlett's requests by

    granting a temporary detail to Boston but that it was not

    required to go further. HHS also supplied the court with

    correspondenc e and a transcript of Randlett's testimony in the

    EEOC's recent investigation.

    Randlett responded with her own version of events and also

    submitted affidavits from HHS employees attesting that HHS did

    approve hardship transfers with some regularity, and suggesting

    that she could have been accommodated in the Boston office.



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    The most dramatic affidavit was submitted by an EEOC employee

    who had previously worked in the Denver HHS office. According

    to the affiant, in the spring of 1982 he had been talking with

    Aguilar about a GS-13 position in the Denver office and asked

    if it was going to be filled permanently and if so, by whom.

    The affidavit continued:

    Alex Aguilar told me "That position [cannot] be
    filled permanently until the matter of Jean Randlett
    is resolved, but I am going to make sure that she
    does not come to Denver. We are going to put a lot
    of pressure on her so she will not return to
    Denver."

    On June 5, 1996, the district judge issued a 29-page

    memorandum and order granting HHS' motion for summary judgment.

    The decision dealt in different ways with Randlett's various

    claims, as will appear from our own discussion. The decision

    went some distance in the direction that HHS had urged in its

    original motion, holding that "rejection of Randlett's request

    to continue to stay in Boston for personal reasons is not a[n]

    adverse action cognizable by federal law."

    II.

    A grant of summary judgment is subject to de novo review

    on appeal, and this includes any claim that the evidence made

    out a material issue of fact that precludes summary judgment.

    Sargent , 108 F.3d at 6. Before addressing the central issue--

    the denial of Randlett's request for a transfer to Boston--we

    consider briefly, and then put to one side, certain rulings by

    the district court that require no extended treatment.


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    In the district court, Randlett urged that she had been

    "promised" a permanent transfer to Boston by Jefferson.

    Assuming arguendo that such a "promise" might receive some

    special protection, the district court carefully reviewed the

    pertinent proffers of evidence, especially the documents

    exchanged between Randlett and the Washington office, and

    concluded that no reasonable jury could find that such a

    promise had been made. Without repeating the details, which

    are set forth in the district court's decision, we agree with

    this ruling.

    The district court also made short work of Randlett's

    claim that she had received inadequate training in Boston,

    saying that even if this were true, there was no evidence that

    it was based upon a motive to retaliate against her for her

    earlier complaint. "At most," the district judge ruled, "the

    evidence shows that the Boston assignment was an awkwardly-

    designed and temporary expedient to accommodate Randlett

    pending her return to the duty station [Denver] directed by the

    1981 EEOC decision." This ruling also is well supported.

    The district court also rejected Randlett's claim that she

    was improperly listed as a GS-12 employee in Boston, saying

    that this was not an adverse employment action since Randlett

    continued to be paid at the GS-13 level. We affirm this ruling

    on a narrower ground: no evidence exists that this alleged

    Boston-office "error" was motivated by a desire to retaliate



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    against Randlett for filing a complaint seven years before

    against a different HHS office. Whether in some other case an

    inaccurate listing could be an adverse action under Title VII

    need not be pursued here.

    The central issue is HHS' refusal to transfer Randlett to

    the Boston office. The district court said that this was "not

    a[n] adverse action cognizable by federal law," but it also

    said that not even a "scintilla of evidence" supported the

    claim "that the agency retaliated against Randlett by refusing

    to provide a permanent transfer to Boston for hardship reasons

    or to extend her temporary detail." These are two different

    reasons, one relating to law and the other to fact.

    The more difficult of the two is the legal question: what

    types of employer actions adverse to the employee can, where

    improperly motivated, give rise to a Title VII complaint. The

    district judge, arguably supported by references in the

    decisions of a few other courts, accepted HHS' argument that

    the refusal of a lateral transfer to another office of the

    agency does not rise to the level of an adverse employment

    action compensable under Title VII--even if done for an

    improper motive.

    The statute itself says that an employer may not

    "discriminate" against an employee or applicant "because [the

    employee or applicant] has made a charge . . . or participated

    in any manner" in a Title VII investigation or proceeding. 42



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    U.S.C. S 2000e-3(a). Elsewhere, the statute lists actions that

    can constitute discrimination, specifying a refusal to hire, a

    discharge, or any discriminatory treatment with respect to

    "compensation, terms, conditions, or privileges of employment."

    Id. S 2000e-2(a). Arguably, the two sections should be read

    together.

    Even so, "terms, conditions, or privileges" is pretty

    open-ended language. It obviously includes opportunities that

    are not strictly entitlements, Hishon v. King & Spalding, 467

    U.S. 69, 75-76 (1984) (promotion to partner); and a number of

    cases have extended coverage to slights or indignities that

    might seem evanescent, e.g., McKenzie v. Illinois Dep't of

    Transp., 92 F.3d 473, 484 (7th Cir. 1996) (employee given

    tedious minor duties); Aviles-Martinez v. Monroig, 963 F.2d 2,

    6 (1st Cir. 1992) (daily ridicule in clients' presence).

    On occasion, disadvantageous transfers have been treated

    as potentially within the scope of Title VII. E.g., Collins v.

    Illinois , 830 F.2d 692, 702-04 (7th Cir. 1987) (citing cases).

    The main authority cited by the district court, Haimovitz v.

    United States Dep't of Justice, 720 F. Supp. 516 (W.D. Pa.

    1989), aff'd , 902 F.2d 1560 (3d Cir. 1990), did reject a claim

    where the employee had been transferred to another location;

    but while the opinion is not crystal clear, the main reason was

    apparently a failure to show an illegal motive. Id. at 525-27.





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    Here, the claim concerns a refusal to transfer, arguably

    less intrusive than involuntary relocation. But Randlett's

    affidavits make clear that at HHS a permanent transfer for

    hardship reasons is a common enough practice and so arguably a

    "privilege" of employment. For Randlett, the transfer here was

    doubtless as important as a promotion. Assuming an improper

    motive, it is hard to see why denial of a hardship transfer in

    this case could not be discrimination under Title VII. See

    Bauman v. Blo ck, 940 F.2d 1211, 1229 (9th Cir.), cert. denied,

    502 U.S. 1005 (1991).

    No doubt construing the statute in this manner opens the

    way to whimsical claims by employees who earlier filed

    complaints and are now aggrieved by slights. Possibly, there

    is room for a de minimis threshold, Williams v. Bristol-Myers

    Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996), and certainly

    good reason to insist on firm evidence of improper motive by

    the employer. But given the impact on Randlett, and her

    affidavits about customary practice, we cannot accept the HHS

    view that a refusal to transfer is automatically outside Title

    VII.

    We turn, therefore, to the district court's alternative

    ground, namely, the lack of a "scintilla of evidence" to show

    retaliation. To make out a retaliation claim requires not only

    an adverse employment action and previously protected conduct,

    but also a colorable showing that "a causal connection existed



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    between the protected conduct and the adverse action." Fennell

    v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).

    In other words, the adverse action must have been taken for the

    purpose of retaliating. And to defeat summary judgment, a

    plaintiff must point to some evidence of retaliation by a

    pertinent decisionmaker. Id.

    The denial of a permanent transfer to the Boston office is

    the principal decision challenged by Randlett, and every

    indication is that this decision was made by the HHS Office for

    Civil Rights in Washington. Randlett's request was made to the

    Washington office and denied by the Washington office.

    Randlett herself wrote to the Boston EEO officer a few days

    after filing her complaint to say that the concern was "with

    the actions of OCR [Office of Civil Rights] in Washington, not

    Denver." See generally Long v. Eastfield College, 88 F.3d 300

    (5th Cir. 1996).

    It was thus incumbent on Randlett, to justify trial on

    this issue, to point to some evidence to show that officials in

    the Washington establishment had refused a permanent transfer

    to retaliate against Randlett for her 1975 complaint. See

    Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.

    1991), cert. denied, 504 U.S. 985 (1992). This need to show a

    connection exists whether Randlett was seeking to make out a

    prima facie case or by independent evidence challenging the HHS

    explanation as pretext and urging independent evidence of



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    discrimination. Fennell, 83 F.3d at 535. The latter is the

    better perspective since (even before the lawsuit began) Dick's

    letter did explain HHS' reasons for denying a permanent

    transfer.

    The difficulty for Randlett is that there is virtually no

    evidence that HHS officials in Washington acted out of a

    retaliatory motive in denying the permanent transfer to Boston.

    Randlett's main argument for inferring an improper motive--that

    is, a connection to her previous complaint--is based on her

    affidavits about HHS practice in granting hardship transfers.

    If HHS handed out transfers as a matter of course whenever an

    employee showed a hardship need, it might well be suspicious

    were Randlett alone singled out for a denial.

    But in fact there is no showing that in denying Randlett's

    request, HHS was departing from its usual practice. Carefully

    read, all that the affidavits say is that HHS often granted

    hardship transfers in similar cases; there is no indication

    that HHS granted them invariably and without regard to the

    convenience of the agency. And in this instance HHS, in

    denying Randlett's request, explained that reductions in force

    ("RIFs") and budget cuts had reduced its flexibility and it was

    not convenient to the agency to transfer Randlett permanently

    to Boston.

    Randlett's only other evidence is several affidavits

    describing reassignments and hires within the Boston office in



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    or around 1982. This confirms that there were some

    reassignments (due, at least in part, to the RIFs mentioned in

    Dick's letter) and at least one new hire for a GS-12 position

    after Randlett's resignation. But nothing in the affidavits

    shows retaliation against Randlett. At most, one might

    conclude that some other mix of reassignments might have

    produced a GS-13 position for Randlett, doubtless to the

    disadvantage of some other employee.

    Whatever inference might be drawn from any of the

    affidavits has to be set against other facts. However careless

    Jefferson may have been in arranging Randlett's timely

    reassignment to Denver, higher officials in Washington--who

    were responsible for refusing the permanent transfer--had

    helped Randlett from the start, both by securing a temporary

    position in Boston and by deferring her start date in Denver.

    Taking everything together, no basis exists for a jury to

    conclude that the permanent transfer was denied in order to

    retaliate.

    Our causation analysis would be quite different if

    Randlett's claim related to Aguilar's action in refusing to

    grant an additional temporary delay to Randlett to permit her

    to delay reporting to duty in Denver in early 1983. The tone

    of Aguilar's alleged remarks, quoted above, might create a jury

    issue as to Aguilar's own motive in refusing Randlett's

    requests to him. This is so even though, absent the remarks,



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    the Denver office had good reason for wanting Randlett to

    report to duty (apparently, it was paying for Randlett's detail

    to Boston and had to leave her permanent position unfilled).

    We need not decide this issue because Randlett has not

    complained of the Denver office's denial of further temporary

    deferrals in her reporting date. Rather, her 1982

    administrativ e complaint, which was the condition precedent to

    this lawsuit, see 42 U.S.C. S 2000e-5(f), is directed at the

    Washington officials' denial of a permanent transfer. That is

    the relief she seeks in the district court. No claim was made

    concerning Aguilar's denial of a further temporary deferral of

    her return to Denver.

    The statutory regime requiring exhaustion of

    administrative remedies itself precludes any effort by Randlett

    at this late date to develop and pursue a new charge directed

    against Aguilar's own conduct in refusing further deferrals.

    Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

    Nor is this some slip of the pen: everything in Randlett's

    situation makes clear that the central grievance relates to

    Washington's denial of a permanent transfer to Boston.

    Accordingly, Aguilar's actions in Denver, whatever their

    motive, would not support a trial of the only claims that

    Randlett has made and preserved.

    No one can view with pride HHS' record of delay in

    investigating this case or fail to sympathize with Randlett's



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    predicament-- a job in one city and an aging parent in another.

    At oral argument, we forcefully urged the parties to seek a

    settlement and asked them to use our court's settlement

    program, delaying this decision until we were advised that

    efforts at settlement had failed. It will now be obvious that

    both sides would have gained through a settlement.

    In sum, we affirm the decision of the district judge on

    the grant of summary judgment, although our reasoning differs

    in certain respects, and we decline to order costs for either

    side. It appears from the briefs and oral argument that a

    ministerial issue relating to the calculation of certain health

    insurance benefits due to Randlett remains to be resolved. We

    therefore remand the case to the district court for this

    limited purpose.

    It is so ordered.























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