Poland v. Chertoff ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES R. POLAND, 
Plaintiff-Appellee,
v. No. 05-35508
MICHAEL CHERTOFF, Secretary of  D.C. No.
the Department of Homeland CV-02-01660-AJB
Security,
Defendant-Appellant.

JAMES R. POLAND, 
Plaintiff-Appellee,
v.
MICHAEL CHERTOFF, Secretary of No. 05-35779
the Department of Homeland
Security,  D.C. No.
CV-02-01660-AJB
Defendant-Appellant,
OPINION
and
PAUL O’NEILL, Secretary of
Treasury,
Defendant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 8, 2007
Submission Vacated March 13, 2007
Resubmitted April 20, 2007
Portland, Oregon
8817
8818 POLAND v. CHERTOFF
Filed July 20, 2007
Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Paez
POLAND v. CHERTOFF 8821
COUNSEL
Peter D. Keisler, Assistant Attorney General, Karin J. Immer-
gut, United States Attorney, Marleigh D. Dover and Mark R.
Freeman, Attorneys, Appellate Staff Civil Division, United
States Department of Justice, Washington, D.C., for
defendant-appellant Michael Chertoff.
Kevin Keaney, Kevin Keaney PC, Portland, Oregon, for
plaintiff-appellee James R. Poland.
8822 POLAND v. CHERTOFF
OPINION
GOULD, Circuit Judge:
After a bench trial, the district court entered a judgment in
favor of James R. Poland, a former employee of the United
States Customs Service, on his employment discrimination
claim against the Customs Service, represented by the Secre-
tary of the Department of Homeland Security (“Secretary”).
Specifically, the district court held the Customs Service liable
for violating the Age Discrimination in Employment Act
(“ADEA”) by retaliating against Poland after he filed Equal
Employment Opportunity (“EEO”) complaints and by con-
structively discharging Poland by transferring him to a new
job in a new location. The district court based its damage
award solely on the theory that Poland had been construc-
tively discharged from the Customs Service. On the Secre-
tary’s appeal, we affirm the district court’s determination that
the Customs Service unlawfully retaliated against Poland for
filing EEO complaints. We reverse the district court’s conclu-
sion that the Customs Service’s transfer of Poland amounted
to a constructive discharge, and we vacate the district court’s
order awarding damages to Poland on a constructive dis-
charge theory. We also vacate the district court’s award of
attorneys’ fees to Poland. We remand the case to the district
court so that Poland can amend his complaint to seek the rem-
edies available under his retaliation theory.
I
A
Poland, who was born in 1946, joined the United States
Customs Service in 1974. Poland began his career as a cus-
toms inspector in Nogales, Arizona. In 1978, the Customs
Service transferred Poland to Washington, D.C., where he
served as an operations officer. The Customs Service then
transferred Poland to Blaine, Washington, where Poland
POLAND v. CHERTOFF 8823
worked as a special agent investigating customs crimes. In
1985, the Customs Service assigned Poland to be a supervisor
in charge of six or seven special agents in Seattle, Washing-
ton. Two years later, in 1987, the Customs Service transferred
Poland back to Washington, D.C., where he worked in the
customs fraud investigation division. Later that year, the Cus-
toms Service reassigned Poland to be a special assistant to the
Assistant Commissioner for Investigations. Poland served the
Customs Service in that capacity until 1989, when the Cus-
toms Service assigned him to work with the Central Intelli-
gence Agency as a customs advisor.
In March 1991, Poland accepted the position of Resident
Agent in Charge (“RAIC”) of the Customs Service’s Portland,
Oregon office. In Portland, Poland supervised twelve agents,
a security officer, and an administrative officer. Poland also
oversaw the Customs Service’s branch offices in Coos Bay
and Astoria.
During his first four years as RAIC of the Portland office,
Poland reported to the Special Agent in Charge (“SAIC”) of
the Seattle Customs Service office. However, in 1995, pursu-
ant to a reorganization of the Customs Service, Poland began
reporting to Gary Hillberry, SAIC of the Denver, Colorado
office. The district court found that, during the time he super-
vised Poland, “SAIC Hillberry was preoccupied with and fre-
quently commented on Poland’s age and the age of the
majority of the special agents assigned to the Portland office.”
Representative conduct by Hillberry and the Denver SAIC
office included:
• Telling Poland he was “too old” for career
advancement with the Customs Service.
• Telling Poland on multiple occasions that the
officers in the Portland office were too old.
• Refusing the request of a forty-nine-year-old spe-
cial agent assigned to the Las Vegas office to
8824 POLAND v. CHERTOFF
transfer to the Portland office because there were
no openings in Portland and, even if there were,
Hillberry wanted to put “younger agents” there.
• Telling a special agent assigned to the Denver
office that Poland had a bunch of “old farts” in
Portland who needed to “get with the times.”
• Stating repeatedly that the personnel policies of
the Customs Office of Investigations and budget-
ary constraints mandated that “younger agents”
be brought into management positions.
• Circulating two “retirement surveys” directing
Poland to provide “retirement related informa-
tion” on special agents and investigators
approaching retirement age.
On December 7, 1997, Poland filed an age discrimination
complaint against Hillberry with the Customs Service’s EEO
Counselor. The next month, on January 6, 1998, Poland filed
a reprisal complaint with the EEO Counselor, alleging that in
retaliation for Poland’s age discrimination complaint, Hill-
berry changed his mind regarding Poland’s request to reassign
an agent under Poland’s supervision.
While Poland was serving as RAIC of the Portland office,
Pamela Ewing was the Management Program Officer in the
Denver SAIC office. Over the twenty-eight months from Sep-
tember 1995 (when Poland began reporting to Hillberry) to
December 1997, Ewing wrote four notes to Hillberry or for
Poland’s file regarding Poland’s conduct as RAIC of the Port-
land office. Between the time Poland filed his initial EEO age
discrimination complaint in December 1997 and January
1999, a time period of fourteen months, Ewing wrote an addi-
tional twenty-three notes criticizing Poland’s conduct. Also,
over the course of his tenure as RAIC, Poland sought, but was
not granted, promotions in other geographic locations.
POLAND v. CHERTOFF 8825
In the spring of 1999, Hillberry requested that the Customs
Service undertake an administrative inquiry into Poland’s per-
formance as RAIC of the Portland office. Hillberry alleged
that Poland was confrontational, argumentative, and disre-
spectful toward members of the Denver SAIC office. The
Customs Service initiated a formal inquiry in the summer of
1999. Witnesses selected by the Customs Service, without
input from Poland, to testify before the administrative inquiry
panel, testified that, as a manager, Poland was intransigent,
inflexible, and unwilling to accept the views of others.
At the conclusion of the administrative inquiry, the panel
found that Poland engaged in unprofessional and inappropri-
ate conduct, and was confrontational, argumentative, retalia-
tory, and ineffective as a manager. The Customs Service
Disciplinary Review Board reviewed the panel’s conclusions
and found that they lacked sufficient specificity to support an
adverse employment action against Poland, but concluded that
it was in the best interest of the Customs Service to reassign
Poland to a nonsupervisory position somewhere other than
Portland because of the Portland staff’s concerns about retali-
ation for their participation in the administrative inquiry.
The Assistant Commissioner of Customs for the Office of
Investigations, Bonni Tischler, agreed with the Review
Board’s recommendation and decided to reassign Poland. On
February 25, 2000, Tischler notified Poland that he was being
transferred to Vienna, Virginia and reassigned to the nons-
upervisory position of Criminal Investigator. Poland accepted
the reassignment and began working in Vienna in April 2000.
After the transfer, Poland’s pay and benefits remained
unchanged from what they were when he was RAIC of the
Portland office. In September 2000, Poland decided to take
early retirement effective December 1, 2000, three years short
of his December 2003 mandatory retirement date from the
Customs Service.
8826 POLAND v. CHERTOFF
B
On December 10, 2002, Poland filed his complaint in the
district court alleging that the Customs Service violated the
ADEA. Poland asserted three claims under the ADEA: First,
he alleged disparate treatment based on the Customs Service’s
failure to promote him because of his age. Second, he asserted
that the Customs Service initiated the administrative inquiry
against him in retaliation for his engaging in the protected
activity of filing EEO age discrimination complaints. Finally,
he alleged that the Customs Service constructively discharged
him as a result of that retaliatory inquiry.
The district court conducted a bench trial. On Poland’s
claim of disparate treatment based on the Customs Service’s
failure to promote him, the district court found in favor of the
Customs Service, reasoning that Poland did not establish that
his age was a motivating factor in the Customs Service’s deci-
sion not to promote him because he did not present evidence
that he was denied a promotion or that younger employees
were promoted ahead of him.
On Poland’s claim of retaliation, however, the district court
ruled in Poland’s favor. The district court found that Poland’s
performance reviews prior to Hillberry’s initiation of the
administrative inquiry never addressed any of the issues
raised by the inquiry. Also, the district court found that the
Customs Service had never disciplined Poland for any of the
alleged behavior that came to light during the inquiry. Addi-
tionally, the district court found that the Customs Service’s
first formal discipline of Poland occurred only after he filed
his first EEO age discrimination claim. The district court con-
cluded that “the Customs Service violated the ADEA when it
initiated an Administrative Inquiry in retaliation against
Poland for engaging in the protected activity of filing his ini-
tial EEO complaint regarding age discrimination and filing
subsequent retaliation complaints.”
POLAND v. CHERTOFF 8827
The district court also ruled in Poland’s favor on his claim
that the Customs Service violated the ADEA by construc-
tively discharging him. Specifically, the district court con-
cluded that “Poland was constructively discharged because
the reassignment to Virginia resulted in separation from his
family and demotion to a nonsupervisory position,” and that
“a person in Poland’s circumstances would have reasonably
believed the reassignment was a ‘career-ending’ event that
compelled him to retire earlier than he planned.”
In calculating the damages due Poland, the district court
relied only on the constructive discharge theory, awarding
Poland the compensation he lost by retiring in December
2000 instead of on his mandatory retirement date of Decem-
ber 2003. Specifically, the court awarded Poland: (1) the lost
wages and other compensation Poland would have received
from September 2000, the date of Poland’s constructive dis-
charge, to December 2003 (less taxes and mandatory retire-
ment contributions, plus prejudgment interest); (2) the dollar
value of annual leave that would have been available to
Poland on his retirement date of December 2003; and (3) lost
retirement benefits. The district court awarded Poland total
damages of $339,130.75. The Customs Service, through the
Secretary, appeals.
II
[1] The Secretary first argues that Poland did not establish
his claim of retaliation. We review the district court’s findings
of fact for clear error and review its conclusions of law de
novo. Star v. West, 237 F.3d 1036, 1038 (9th Cir. 2001). To
establish a claim of retaliation, a plaintiff must prove that (1)
the plaintiff engaged in a protected activity, (2) the plaintiff
suffered an adverse employment action, and (3) there was a
causal link between the plaintiff’s protected activity and the
8828 POLAND v. CHERTOFF
adverse employment action. Villiarimo v. Aloha Is. Air, Inc.,
281 F.3d 1054, 1064 (9th Cir. 2002).1
[2] In this case, Poland’s filing of EEO complaints was a
protected activity. See 42 U.S.C. § 2000e-3(a); Ray v. Hen-
derson, 217 F.3d 1234, 1240 (9th Cir. 2000). Also, Poland
suffered two adverse employment actions. An adverse
employment action is “any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity.”
Ray, 217 F.3d at 1242-43 (internal quotation marks omitted).
The adverse employment actions Poland suffered in this case
were: (1) Hillberry’s initiation of the administrative inquiry
against him, see Ulrich v. City and County of San Francisco,
308 F.3d 968, 977 (9th Cir. 2002) (holding that a hospital’s
investigation of a doctor that threatened to take away the doc-
tor’s clinical privileges was an adverse employment action),
and (2) the Customs Service’s transfer of him to Virginia, see
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)
(holding that transfers of job duties can constitute adverse
employment actions under Title VII); see also Ray, 217 F.3d
at 1240 (“We have found that a wide array of disadvantageous
changes in the workplace constitute adverse employment
actions.”). The parties vigorously dispute, however, whether
Poland established the third element of his claim of retaliation
—a causal link between his filing of EEO complaints and the
adverse employment actions the Customs Service took against
him.
[3] The district court correctly concluded that Hillberry’s
initiation of the administrative inquiry was directly caused by
1
Although Villiarimo and other cases discussed in this opinion are Title
VII cases, not ADEA cases, they are relevant to our ADEA analysis
because “the ADEA anti-retaliation provision is ‘parallel to the anti-
retaliation provision contained in Title VII,’ and . . . ‘cases interpreting the
latter provision are frequently relied upon in interpreting the former.’ ”
Hashimoto v. Dalton, 118 F.3d 671, 675 n.1 (9th Cir. 1997) (quoting
Passer v. Am. Chem. Soc’y, 935 F.2d 322, 330 (D.C. Cir. 1991)).
POLAND v. CHERTOFF 8829
Poland’s filing of EEO complaints. The court also correctly
concluded that Hillberry made the ultimate decision to initiate
the inquiry, and therefore that his animus underlying that
decision should be imputed to the Customs Service. The more
difficult question is whether Poland established the required
causal link2 between his EEO complaints, Hillberry’s animus,
and the Customs Service’s adverse employment action of
transferring Poland to Virginia. The Secretary does not dis-
pute that Hillberry harbored animus toward older workers.
Hillberry, however, was not the Customs Service employee
who made the ultimate decision to take the adverse employ-
ment action of transferring Poland.3 Instead, it was Assistant
Commissioner Tischler who, at the recommendation of the
Review Board and the inquiry panel, decided to transfer
Poland. The Secretary argues that this independent inquiry
and decisionmaking process severed the causal link between
2
We emphasize that this case comes to us on an appeal of a judgment
entered following a bench trial and a statement of findings of fact and con-
clusions of law pursuant to Federal Rule of Civil Procedure 52(a). Thus,
the questions before us are whether the district court clearly erred in con-
cluding that the plaintiff satisfied his ultimate burden of persuasion on the
element of the causal link between his protected activity and the adverse
employment actions, and whether the district court correctly applied the
law in reaching the conclusion that the plaintiff satisfied that burden. Our
discussion of causation here does not apply to the prima facie showing of
retaliation that is required at the first step of the McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), burden-shifting framework that applies to
the claims of plaintiffs seeking to establish employment discrimination
through circumstantial evidence. See Enlow v. Salem-Keizer Yellow Cab
Co., 389 F.3d 802, 812 (9th Cir. 2004); Hernandez v. Spacelabs Med. Inc.,
343 F.3d 1107, 1112 (9th Cir. 2003). At the prima facie stage of a retalia-
tion case, “[t]he causal link element is construed broadly so that a plaintiff
merely has to prove that the protected activity and the negative employ-
ment action are not completely unrelated.” Pennington v. City of Hunts-
ville, 261 F.3d 1262, 1266 (11th Cir. 2001) (internal quotation marks
omitted).
3
The district court correctly concluded that Hillberry did make the ulti-
mate decision to initiate the administrative inquiry against Poland and that
Hillberry’s animus underlying that decision should be imputed to the Cus-
toms Service.
8830 POLAND v. CHERTOFF
Hillberry’s animus-based initiation of the inquiry and the
adverse employment action of transferring Poland, and there-
fore that Hillberry’s animus should not be imputed to the Cus-
toms Service.
[4] This situation—one where a subordinate employee with
bias (like Hillberry) precipitates an investigation that leads to
an adverse employment action but an employee without bias
makes the final decision to take the adverse action—raises
difficult issues not yet addressed by our circuit concerning
how involved in the investigation the biased subordinate must
be for the subordinate’s animus to be imputed to the employer
who took the adverse employment action. As the Tenth Cir-
cuit recently explained, the agency principles underlying our
employment discrimination laws, see 42 U.S.C. § 2000e(b)
(defining “employer” to include any “person engaged in an
industry affecting commerce” as well as “any agent of such
a person”), along with the deterrent purpose of those laws,
support the existence of some theory of subordinate bias lia-
bility. EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d
476, 485-86 (10th Cir. 2006), cert. dismissed, 127 S. Ct. 1931(2007). We consider three potential rules to govern when a
subordinate’s bias will be imputed to an employer.
First, we could adopt a simple “but for” causation test. In
cases where an employee with bias precipitates some form of
inquiry, investigation, or disciplinary proceeding, the ultimate
decisionmaker has no bias, and the plaintiff makes a claim of
retaliation, we could ask only whether, but for engaging in his
protected activity, the plaintiff would have suffered the
adverse employment action.4 The liability that can flow from
4
We have applied a “but for” causation standard in certain Title VII
retaliation cases. See Villiarimo, 281 F.3d at 1065; Ruggles v. Cal. Poly-
technic State Univ., 797 F.2d 782, 785 (9th Cir. 1986); Kauffman v. Side-
real Corp., 695 F.2d 343, 345 (9th Cir. 1982) (per curiam). However, in
none of those cases did the employer undertake an allegedly independent
investigation upon the suggestion of a biased employee. Instead, in those
cases, the ultimate decisionmakers were themselves allegedly biased, see
Ruggles, 797 F.2d at 784; Kauffman, 695 F.2d at 345-46, or the allegedly
biased subordinate had no connection to the employer’s final decision to
take the adverse employment action, see Villiarimo, 281 F.3d at 1065.
POLAND v. CHERTOFF 8831
a “but for” standard of causation in subordinate bias cases is
expansive. Under a “but for” standard, any time a biased
employee, in response to a plaintiff’s protected activity, sets
in motion the process that leads to an adverse employment
action, the employer would be liable, even if the employer
then conducted an entirely independent inquiry and decision-
making process insulated from the animus of the biased
employee, and no matter how compelling the non-
discriminatory grounds for taking the adverse employment
action. As the Tenth Circuit has observed, such a lenient stan-
dard can “weaken[ ] the deterrent effect of subordinate bias
claims by imposing liability even where an employer has dili-
gently conducted an independent investigation.” BCI, 450
F.3d at 487. Also, such a broad conception of liability is
inconsistent with tort law principles of causation that apply to
civil rights claims. Restatement (Second) of Torts § 431 cmt.
a (1965) (“In order to be a legal cause of another’s harm, it
is not enough that the harm would not have occurred had the
actor not been negligent.”). Thus, “but for” causation in this
context is not of itself sufficient to impute the subordinate’s
bias to his employer.
The second rule we consider is the one suggested in this
case by the Secretary. The Secretary urges that we should
impute a subordinate’s animus to his or her employer only in
cases in which the subordinate dominates the investigatory
process and the final decision is a perfunctory approval of the
biased subordinate’s inclination. Courts have termed this nar-
row standard the “rubber stamp” or “cat’s paw” approach.5
The Fourth Circuit has adopted this view and imputes subor-
dinate bias to an employer only when the final decisionmaker
rubber stamps the biased decision of a subordinate. See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291
(4th Cir. 2004) (en banc) (“[A]n aggrieved employee who
rests a discrimination claim under Title VII or the ADEA
5
For a discussion of the etymology and acceptation of these two terms,
see BCI, 450 F.3d at 484-85.
8832 POLAND v. CHERTOFF
upon the discriminatory motivations of a subordinate
employee must come forward with sufficient evidence that the
subordinate employee possessed such authority as to be
viewed as the one principally responsible for the decision or
the actual decisionmaker for the employer.”). No doubt an
employer is liable for the discriminatory acts of a subordinate
in cases where the biased subordinate is, as a practical matter,
the actual decisionmaker. See Shager v. Upjohn Co., 913 F.2d
398, 405 (7th Cir. 1990). But liability should not be limited
to those cases only. As the Tenth Circuit has observed, the
Fourth Circuit seems to take the cat’s paw metaphor too liter-
ally. See BCI, 450 F.3d at 488. The purpose of the metaphor
is to draw attention to the fact “that many companies separate
the decisionmaking function from the investigation and
reporting functions, and that . . . bias can taint any of those
functions.” Id. The metaphor is not a causation rule. Lust v.
Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (criticizing the
Fourth Circuit’s approach as “inconsistent with the normal
analysis of causal issues in tort litigation”). A more expansive
approach to subordinate bias liability is called for in subordi-
nate bias cases.
[5] We hold that if a subordinate, in response to a plaintiff’s
protected activity, sets in motion a proceeding by an indepen-
dent decisionmaker that leads to an adverse employment
action, the subordinate’s bias is imputed to the employer if the
plaintiff can prove that the allegedly independent adverse
employment decision was not actually independent because
the biased subordinate influenced or was involved in the deci-
sion or decisionmaking process. This standard is consistent
with what we have suggested in previous Title VII retaliation
cases, see Bergene v. Salt River Project Agric. Improvement
& Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (“Even
if a manager was not the ultimate decisionmaker, that manag-
er’s retaliatory motive may be imputed to the company if the
manager was involved in the [adverse employment] deci-
sion.”); Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir.
2005) (“Title VII may still be violated where the ultimate
POLAND v. CHERTOFF 8833
decision-maker, lacking individual discriminatory intent,
takes an adverse employment action in reliance on factors
affected by another decision-maker’s discriminatory ani-
mus.”), and with the law in a majority of the circuits, see, e.g.,
Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (hold-
ing that “the discriminatory animus of a manager can be
imputed to the ultimate decisionmaker if the [manager] . . . .
‘had influence or leverage over’ ” the ultimate decisionmaker
(quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219,
226 (5th Cir. 2000))); Abramson v. William Paterson Coll. of
N.J., 260 F.3d 265, 286 (3d Cir. 2001) (holding that an
employer is liable for the discriminatory actions of employees
exhibiting discriminatory animus if they “influenced or partic-
ipated in the [adverse employment] decision”); Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55
(1st Cir. 2000) (“One method [of proving pretext] is to show
that discriminatory comments were made by . . . those in a
position to influence the decisionmaker.”); Griffin v. Wash.
Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998)
(“[E]vidence of a subordinate’s bias is relevant where the ulti-
mate decision maker is not insulated from the subordinate’s
influence.”); Willis v. Marion County Auditor’s Office, 118
F.3d 542, 547 (7th Cir. 1997) (holding that an employer is lia-
ble for a subordinate’s discriminatory acts when the subordi-
nate is “able to manipulate the decisionmaking process and to
influence the decision”); see also Hill, 354 F.3d at 303(Michael, J., dissenting) (“Most other circuits, in either
mixed-motive or pretext cases, have held that when the dis-
criminatory bias of a subordinate influences an employment
decision, the employer will be charged with the subordinate’s
bias.”).
[6] Thus, if an adverse employment action is the conse-
quence of an entirely independent investigation by an
employer, the animus of the retaliating employee is not
imputed to the employer. See Willis, 118 F.3d at 547 (stating
that if “the ultimate decision is clearly made on an indepen-
dent and a legally permissive basis, the bias of the subordinate
8834 POLAND v. CHERTOFF
is not relevant”). Conversely, even if the biased subordinate
was not the principal decisionmaker, the biased subordinate’s
retaliatory motive will be imputed to the employer if the sub-
ordinate influenced, affected, or was involved in the adverse
employment decision. Bergene, 272 F.3d at 1141.
[7] In this case, Hillberry, in retaliation for Poland’s EEO
complaints, asked the Customs Service to undertake an
administrative inquiry of Poland’s performance as RAIC of
the Portland office. Hillberry’s initiation of the administrative
inquiry, on its own, would not be sufficient to impute Hillber-
ry’s animus to the Customs Service’s decision to transfer
Poland if the Customs Service had shielded the inquiry it sub-
sequently undertook from Hillberry’s influence. However, the
inquiry panel in this case was not shielded from Hillberry’s
animus. Instead, the panel had access to Hillberry’s lengthy
memo requesting the inquiry in which he outlined numerous
incidents of malfeasance by Poland. Also, Hillberry, without
consulting Poland, provided a list of twenty-one witnesses for
the inquiry panel to contact. Accordingly, the district court
found that the inquiry panel conducted “interviews with 21
witnesses who were preselected by the Customs Service with-
out input from Poland.” Additionally, Hillberry provided and
the panel considered Ewing’s notes on Poland’s performance.
Ewing had greatly increased the frequency of these notes after
Poland filed his initial EEO complaint. We cannot on this
record conclude other than that Hillberry’s animus had a per-
vasive influence on the administrative inquiry that led to the
adverse employment action. Because Hillberry influenced or
was involved in the inquiry, it was not sufficiently indepen-
dent to break the causal chain between Poland’s protected
activity and the Customs Service’s decision to transfer him to
Virginia.
[8] In summary, we hold that to establish the essential ele-
ment of causation in a subordinate bias case—where the
investigation that led to the adverse employment decision was
initiated by, and would not have happened but for, the biased
POLAND v. CHERTOFF 8835
subordinate—the plaintiff must show that the allegedly inde-
pendent adverse employment decision was not actually inde-
pendent because the biased subordinate influenced or was
involved in the decision or the investigation leading thereto.6
We agree with the district court that Hillberry’s animus and
his role in defining the scope of the inquiry and in leading the
inquiry panel to evidence unfavorable to Poland unlawfully
tainted the decision to transfer Poland. Because Hillberry
framed and influenced the inquiry panel’s investigation, the
decision to transfer Poland was not independent. We affirm
the district court’s judgment in favor of Poland on his ADEA
retaliation claim.
III
The Secretary next contends that the district court erred in
determining that Poland had been constructively discharged.
Though a determination of constructive discharge is normally
a factual question left to the trier of fact, see Watson v.
Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987), we
review de novo questions of law underlying the district
court’s determination. Star, 237 F.3d at 1038.
[9] “Under the constructive discharge doctrine, an employ-
ee’s reasonable decision to resign because of unendurable
working conditions is assimilated to a formal discharge for
remedial purposes. The inquiry is objective: Did working con-
ditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign?”
Penn. State Police v. Suders, 542 U.S. 129, 141 (2004) (cita-
tion omitted). The district court concluded that a reasonable
person in Poland’s position would have felt compelled to
retire “because the reassignment to Virginia resulted in sepa-
6
As we discussed above, however, the plaintiff need not make such an
extensive showing to establish the minimal causal link required at the
prima facie stage of a retaliation claim under the McDonnell Douglas
burden-shifting regime.
8836 POLAND v. CHERTOFF
ration from his family and demotion to a nonsupervisory posi-
tion.”
[10] However, this evidence of transfer and demotion is
insufficient, as a matter of law, to establish a constructive dis-
charge. Instead, we have held that a
constructive discharge occurs when the working con-
ditions deteriorate, as a result of discrimination, to
the point that they become sufficiently extraordinary
and egregious to overcome the normal motivation of
a competent, diligent, and reasonable employee to
remain on the job to earn a livelihood and to serve
his or her employer.
Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.
2000) (internal quotation marks omitted). We set the bar high
for a claim of constructive discharge because federal
antidiscrimination policies are better served when the
employee and employer attack discrimination within their
existing employment relationship, rather than when the
employee walks away and then later litigates whether his
employment situation was intolerable.7 Thorne v. City of El
7
Unlike some of our sister circuits, we do not require that, in addition
to proving that working conditions were intolerable, a plaintiff must estab-
lish that his employer created the intolerable conditions with the intent to
cause the employee to resign. Compare Watson, 823 F.2d at 361 (holding
that, to establish a claim of constructive discharge, “the plaintiff need not
show that the employer subjectively intended to force the employee to
resign”), Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732-33 (1st Cir.
1999) (same), Derr v. Gulf Oil Corp., 796 F.2d 340, 343-44 (10th Cir.
1986) (same), Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.
1984) (same), and Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th
Cir. 1980) (same), with Elnashar v. Speedway SuperAmerica, LLC, 484
F.3d 1046, 1058 (8th Cir. 2007) (requiring plaintiff to prove employer’s
intent), Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 (6th Cir. 2003)
(same), and Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993) (“[T]he
standard for constructive discharge requires a plaintiff to show both intol-
erable working conditions and a deliberate effort by the employer to force
the employee to quit.”).
POLAND v. CHERTOFF 8837
Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986); see also
Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.
1996) (“An employee who quits without giving his employer
a reasonable chance to work out a problem has not been con-
structively discharged.”).
[11] Under the facts found by the district court, Poland was
not, as a matter of law, constructively discharged. Neither the
district court’s factual findings nor any other evidence in the
record indicates that Poland’s working conditions in Virginia
were so poor that they trumped his motivation to earn a living.
See Brooks, 229 F.3d at 930. In fact, Poland worked in Vir-
ginia for five months before deciding to retire. Even after he
decided to retire, Poland worked the same job for three more
months. As a matter of law, these are not the actions of some-
one who finds his working conditions so intolerable that he
felt compelled to resign. See Manatt v. Bank of America, 339
F.3d 792, 804 (9th Cir. 2003); Montero v. AGCO Corp., 192
F.3d 856, 861 (9th Cir. 1999); Smith v. Bath Iron Works
Corp., 943 F.2d 164, 167 (1st Cir. 1991). Poland may have
preferred to have remained RAIC of the Customs Service
office in Portland, but “constructive discharge cannot be
based upon the employee’s subjective preference for one posi-
tion over another.” Jett v. Dallas Indep. Sch. Dist., 798 F.2d
748, 755 (5th Cir. 1986), aff’d in part and remanded in part,
491 U.S. 701 (1989); see Spears v. Mo. Dep’t of Corr. &
Human Res., 210 F.3d 850, 854-55 (8th Cir. 2000).
[12] Because we require job conditions to be worse than
those which a reasonable person could tolerate, “[a]n
employee may not . . . be unreasonably sensitive to a change
in job responsibilities.” Serrano-Cruz v. DFI P.R., Inc., 109
F.3d 23, 26 (1st Cir. 1997). For a special agent in the Customs
Service, like Poland, a cross-country transfer to a new posi-
tion is nothing extraordinary and would not cause a reason-
able agent in Poland’s shoes to feel compelled to quit. At trial,
the government introduced testimony that all Customs Service
special agents sign waivers acknowledging that they may be
8838 POLAND v. CHERTOFF
transferred anywhere in the country for the good of the
agency. Poland himself had been transferred several times,
serving in Arizona, Washington, D.C., Washington State,
Oregon, and, finally, Virginia. Also, although it is not a dispo-
sitive factor, the fact that Poland’s transfer resulted in no
decrease of salary or benefits weighs against a finding of con-
structive discharge. See id. Though the transfer was to a nons-
upervisory position, this fact alone does not cause Poland’s
transfer to amount to a constructive discharge. See Petrosino
v. Bell Atl., 385 F.3d 210, 231 (2d Cir. 2004); Suarez v.
Pueblo Int’l, Inc., 229 F.3d 49, 55 (1st Cir. 2000); McCann
v. Litton Sys., Inc., 986 F.2d 946, 952 (5th Cir. 1993) (refus-
ing to find a constructive discharge when the plaintiff “faced
a slight decrease in pay coupled with a loss of some supervi-
sory responsibilities”).
Poland never testified that he felt compelled or forced to
resign, even though the United States Supreme Court has
required plaintiffs to present evidence that working conditions
were so intolerable that a reasonable person would have felt
compelled to resign to prove that they have been construc-
tively discharged. See Penn. State Police, 542 U.S. at 141.
Instead, Poland testified that he decided to take early retire-
ment because the extended separation from his family was
difficult and because his new position in Virginia was “a
career ender.” That testimony is not enough to establish a
constructive discharge under case law requiring that an
employer create working conditions that are “sufficiently
extraordinary and egregious to overcome the normal motiva-
tion of a competent, diligent, and reasonable employee to
remain on the job to earn a livelihood.” Brooks, 229 F.3d at
930.8
8
The facts pertinent to assessment of constructive termination are
indeed not in dispute: Poland was transferred to a different office across
the country, in his new post he was no longer a supervisor and realistically
he had no opportunity for further promotion, his pay was not altered on
the transfer, and he continued to work in the new position for about five
POLAND v. CHERTOFF 8839
[13] We reverse the district court’s verdict in favor of
Poland on his constructive discharge claim, and we vacate the
damage award based on the constructive discharge theory.
Because Poland’s damage award was predicated entirely on
his constructive discharge theory, we remand this case and
instruct the district court to give Poland the opportunity to
amend his complaint to seek any remedies available under his
retaliation theory.9
IV
The government also argues that we must vacate the district
court’s award of attorneys’ fees and costs to Poland. 28
U.S.C. § 2412(b), enacted as part of § 204(a) of the Equal
Access to Justice Act (“EAJA”), Pub. L. No. 96-481, 94 Stat.
2321 (1980), entitles the “prevailing party” in any civil action
against the United States, its agencies, or its officials to attor-
neys’ fees and expenses. The Supreme Court has held that, for
the purpose of federal fee-shifting statutes, a party is a “pre-
vailing party” if (1) it secures a material alteration in the legal
relationship of the parties and (2) that alteration is judicially
months. Although we conclude that the evidence Poland presented was
insufficient as a matter of law to establish that he was constructively dis-
charged, our conclusion would not change if we were reviewing the dis-
trict court’s factual finding under our clearly erroneous standard of review.
Based on the evidence presented at trial, it was clear error for the district
court to conclude that a reasonable person in Poland’s situation would
have felt compelled to resign because his work conditions, although a dis-
appointment to him, were not intolerable.
9
Under Federal Rule of Civil Procedure 15(a), leave to amend “shall be
freely given when justice so requires.” Though we conclude that the con-
structive discharge theory of damages was not warranted, because we
affirm the district court’s holding that Poland’s transfer was unlawfully
retaliatory, justice requires that Poland be permitted to amend his com-
plaint and any applicable pre-trial order to allege any damages proxi-
mately caused by the retaliatory transfer, and to seek any appropriate
remedy for the retaliation. The district court should hold such further pro-
ceedings as are appropriate to resolve the remedial issues.
8840 POLAND v. CHERTOFF
sanctioned. Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001); see
also Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.
2002) (applying Buckhannon’s definition of “prevailing
party” to the EAJA). The Supreme Court has held that a party
secures a material alteration of the parties’ legal relationship
when it “has been awarded some relief by the court.” Buck-
hannon, 532 U.S. at 603 (emphasis added); see also Sole v.
Wyner, 127 S. Ct. 2188, 2194 (2007); Hewitt v. Helms, 482
U.S. 755, 760 (1987) (holding that a plaintiff must “receive
at least some relief on the merits of his claim before he can
be said to prevail”); P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d
1165, 1170 (9th Cir. 2007).
[14] In this case, we have vacated the district court’s order
awarding damages to Poland on his constructive discharge
theory. Because the court did not award Poland any other
damages or form of relief, Poland has, for the moment, not
obtained any relief on the merits of his claims and is therefore
not a prevailing party. We thus vacate the district court’s
order awarding attorneys’ fees and costs to Poland. However,
we have also held that Poland established his claim of retalia-
tion under the ADEA and that on remand he can seek redress
for injuries suffered because of that retaliation. In the event
Poland obtains any form of relief on remand, he will have
secured a material change in the legal relationship between
himself and the Customs Service, and once again he will be
a prevailing party entitled to attorneys’ fees and costs under
EAJA. See Buckhannon, 532 U.S. at 604 (noting that the
recovery of even nominal damages renders a party “prevail-
ing”). If the district court determines that Poland is entitled to
any relief on remand, we instruct the district court to reinstate
its award of attorneys’ fees and costs to Poland.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED WITH
INSTRUCTIONS.
POLAND v. CHERTOFF 8841
PAEZ, Circuit Judge, concurring in part and dissenting in
part:
I concur in all but Part III of the majority’s opinion. I dis-
agree with the majority that, in light of the factual record, the
constructive discharge question can be answered as a matter
of law. I also disagree with the majority’s alternate holding
that the district court’s constructive discharge finding was
clearly erroneous. Accordingly, I would affirm the district
court’s factual finding that Poland was constructively dis-
charged, and I respectfully dissent as to Part III.
A constructive discharge finding requires the application of
an objective standard. See Penn. State Police v. Suders, 542
U.S. 129, 141 (2004) (“The inquiry is objective: Did working
conditions become so intolerable that a reasonable person in
the employee’s position would have felt compelled to
resign?”). As the majority recognizes, however, whether a
plaintiff meets this objective standard “is normally a factual
question left to the trier of fact.” Watson v. Nationwide Ins.
Co., 823 F.2d 360, 361 (9th Cir. 1987); see also Wallace v.
City of San Diego, 479 F.3d 616, 626 (9th Cir. 2007)
(“Whether working conditions were so intolerable and dis-
criminatory as to justify a reasonable employee’s decision to
resign is normally a factual question for the jury.”). Therefore,
when we review a judgment after trial that is based on a con-
structive discharge finding, we ordinarily review that finding
for clear error. See Lojek v. Thomas, 716 F.2d 675, 683 (9th
Cir. 1983) (“The district court’s finding that Lojek was nei-
ther subjected to intolerable employment conditions nor was
he coerced to resign is not clearly erroneous.”); see also Goss
v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984)
(“Exxon contends that the trial court’s finding of fact that
Goss was constructively discharged is clearly erroneous. We
conclude that it is not.”).
In Wallace v. City of San Diego, we recently emphasized
the deference due the trier of fact, affirming the jury’s con-
8842 POLAND v. CHERTOFF
structive discharge finding and reversing the district court’s
judgment as a matter of law to the contrary:
Although the evidence could be viewed to support a
finding that Wallace’s working conditions were “fa-
vorable” to the point of barring a constructive dis-
charge claim . . . the jury saw it differently, and
substantial evidence supports its finding. We cannot
disregard the jury’s verdict simply because we
would have weighed the evidence differently. Put
another way, we do not disagree that a jury could
have concluded that Wallace failed to establish con-
structive discharge. But . . . we cannot say that the
evidence permits only a conclusion that is contrary
to the jury’s verdict.
479 F.3d at 629.
The majority nonetheless concludes that, as a matter of law,
Poland did not suffer a constructive discharge. When we have
previously reversed a constructive discharge finding as a mat-
ter of law, however, we have done so in cases only involving
a “single isolated instance” of employment discrimination.
See Watson, 823 F.2d at 361 (“[W]e have noted that, in gen-
eral, a single isolated instance of employment discrimination
is insufficient as a matter of law to support a finding of con-
structive discharge. . . . Hence, a plaintiff alleging a construc-
tive discharge must show some aggravating factors, such as
a continuous pattern of discriminatory treatment.” (internal
quotation marks and emphasis omitted)); see also Wallace,
479 F.3d at 626 (“Although a single isolated incident is insuf-
ficient as a matter of law to support a finding of constructive
discharge, we have upheld factual findings of constructive
discharge when the plaintiff was subjected to incidents of dif-
ferential treatment over a period of months or years.” (internal
quotation marks and citation omitted)).
POLAND v. CHERTOFF 8843
The majority does not contend that the Customs Service
subjected Poland to only a single isolated instance of discrim-
ination or retaliation. To the contrary, the district court’s fac-
tual findings establish that the Customs Service subjected
Poland to differential treatment for almost a decade. See id.(“Wallace offered evidence of a pattern of discrimination and
retaliation . . . beginning as early 1991 and continuing through
August 2000.”). Starting in 1992 or 1993, Poland’s immediate
supervisor, Gary Hillberry, frequently subjected him to dis-
criminatory remarks and treatment. Further, in retaliation for
Poland filing his first EEO complaint in 1997, Hillberry
changed his mind and declined Poland’s request to reassign a
special agent under Poland’s supervision. Hillberry also retali-
ated against Poland for filing his two subsequent EEO com-
plaints in 1998 and 1999, by issuing Poland an
unsubstantiated letter of admonishment and initiating and
influencing the inquiry into Poland’s managerial performance.
Finally, as a result of that inquiry, the Customs Service
demoted Poland from a high-level position supervising three
offices and nineteen special agents and officers1 that he had
held for more than ten years, to a “career end[ing],” “nones-
sential,” and “nonsupervisory” position, shuffling papers.
As Poland testified:
Q. And did you have any management responsibil-
ity in [your new position]?
A. No.
1
As Resident Agent in Charge (“RAIC”) of the Portland office, Poland
supervised twelve agents, each of whom worked in either a commercial
fraud group or a narcotics and money laundering group. The supervisor of
each group reported directly to Poland. Poland also supervised a security
officer and an administrative officer and the Customs Service’s branch
offices in Coos Bay (an office with three special agents) and Astoria (an
office with two special agents).
8844 POLAND v. CHERTOFF
Q. Did you supervise anybody?
A. No.
Q. Did you — well, what were you doing?
A. I was put in an office and told to move paper
from the left side of the desk to the right side of
the desk.
Q. Okay. What does that mean?
A. That means exactly that. Some courier would
bring some paper in and I’d look it over and
decide what sort of automated financial checks
ought to be done, check — check the appropri-
ate box and put it in the out box and somebody
came by, picked it up and processed it.
Q. Did your new position involve any of the kind
of judgment or discretion that you had to exer-
cise as the RAIC for Portland?
A. None whatsoever.
Q. And you stayed in that position for approxi-
mately how many months?
A. Approximately a total of about — five and a
half months, six months.
Q. All right. And what did you decide to do at the
end of that period?
A. Decided it was in the best interests of my family
and myself, because I didn’t see — this was a
career ender, that it was time to leave.
POLAND v. CHERTOFF 8845
Q. Why did you decide to retire?
A. Because my career was over.
Q. Why do you say that?
A. Well, because I was in a nonsupervisory posi-
tion, I was in a nonessential job, a job that had
sat vacant for almost six months. My predeces-
sor had retired. I had little interaction with any-
one else. Based on my experience, watching
other people’s career[s] end in a similar way, I
was done.
Q. Did you feel that you had any promotion or lat-
eral assignment possibilities at that point?
A. None whatsoever.
In light of this testimony, which the district court found
credible, and the seven or eight years of discrimination and
retaliation prior to the demotion in Poland’s duties, there was
ample evidence for the district court, as trier of fact, to find
that Poland was subjected to treatment sufficiently intolerable
that a reasonable employee would have felt compelled to
resign. See Satterwhite v. Smith, 744 F.2d 1380, 1382-83 (9th
Cir. 1984) (affirming the district court’s finding of a construc-
tive discharge on similar facts, and discussing other similar
decisions).
Further, because these circumstances are sufficient under
our deferential standard of review to show that Poland suf-
fered a constructive discharge, the district court’s finding is
not undermined by the evidence that the Customs Service reg-
ularly transferred its employees to different locations. Even if
Poland’s move across the country may not have been intolera-
ble in and of itself, the move culminated in a drastic demotion
in duties that the district court found objectively intolerable
8846 POLAND v. CHERTOFF
under the circumstances. Likewise, in light of the demotion
and the years of discriminatory and retaliatory treatment, the
district court’s finding is not undermined by the fact that
Poland’s pay remained the same. See Buckley v. Hosp. Corp.
of America, Inc., 758 F.2d 1525, 1530-31 (11th Cir. 1985)
(rejecting defendant’s contention that plaintiff was not con-
structively discharged because she was offered another posi-
tion at the same pay, because plaintiff “testified she found
[the new position] ‘humiliating’ after her years of service in
supervisory positions”); see also Ramos v. Davis & Geck,
Inc., 167 F.3d 727, 731 (1st Cir. 1999) (“[T]he fact that salary
and benefits have not been decreased has never been held to
be a conclusive factor [for a constructive discharge finding]
. . . .”); Real v. Cont’l Group, Inc., 627 F. Supp. 434, 443
(N.D. Cal. 1986) (“Continental makes much of the fact that
despite the plaintiff’s demotion and job offers graded substan-
tially below the job he held prior to June 1981, Mr. Real suf-
fered no reduction in his salary or benefits. This fact alone is
not enough to defeat the jury’s finding of constructive dis-
charge.”).
Nor is the majority’s reversal of the district court’s factual
finding justified simply because Poland worked for about five
months after his demotion before resigning. We have never
held that continuing to work for a period of months following
an adverse employment decision precludes a constructive dis-
charge finding. In the decisions cited by the majority, we
merely affirmed findings that there was no constructive dis-
charge; we did not suggest that the trier of fact could not have
found to the contrary. See Manatt v. Bank of America, 339
F.3d 792, 804 (9th Cir. 2003); Montero v. AGCO Corp., 192
F.3d 856, 861 (9th Cir. 1999); see also Smith v. Bath Iron
Works Corp., 943 F.2d 164, 167 (1st Cir. 1991). Also, in each
of those cases, the plaintiffs conceded that the alleged dis-
criminatory treatment had stopped entirely months or years
before they resigned. Poland, however, was still subject to
retaliatory treatment when he resigned, as the Customs Ser-
vice kept him at a nonessential, nonsupervisory, career-ending
POLAND v. CHERTOFF 8847
job, moving papers from one side of his desk to the other.
Moreover, we recently held that a similar, three-month delay
in resigning did not “preclude[ ] a conclusion that [the plain-
tiff] was constructively discharged.” Wallace, 479 F.3d at
627. As we explained:
Although the dissent would conclude otherwise, the
jury could have viewed [the plaintiff’s] efforts to
stay on the job despite the intolerable conditions as
evidence that he indeed had “the normal motivation
of a competent, diligent, and reasonable employee to
remain on the job to earn a livelihood and to serve
his or her employer.” Brooks v. City of San Mateo,
229 F.3d 917, 930 (9th Cir. 2000) (internal quotation
marks omitted).
Id. at 629 n.7.
Accordingly, there is no basis for the majority’s decision in
the instant case to circumscribe a new area within which there
can be no constructive discharge as a matter of law. For the
same reasons, I would hold on this record that the district
court’s factual finding that Poland was constructively dis-
charged was not clearly erroneous, and I would therefore
affirm.