United States Court of Appeals For the First Circuit For the First Circuit
No. 96-2050
VINCENT DeNOVELLIS,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Jodie Grossman, with whom ALEF, Inc., was on brief for appellant.
George B. Henderson, II, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
September 2, 1997
BOWNES, Senior Circuit Judge. Plaintiff Vincent BOWNES, Senior Circuit Judge.
DeNovellis brought this action alleging employment
discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., and under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et
seq., against his employer, the Secretary of the United
States Department of Health and Human Services (HHS). He
alleged that he was discriminated against on the basis of his
race, national origin, and age, in his work assignments, in
denials of promotions and awards, and in being subjected to a
hostile work environment. The district court granted summary
judgment to the defendant. We affirm.
I.
A. Facts
Viewed in the light most favorable to the nonmoving
party (DeNovellis) and drawing all reasonable inferences in
his favor, the following facts are treated as undisputed for
purposes of the motion for summary judgment. DeNovellis is a
white male of Italian descent. He was sixty-six years old at
the time he filed this action in 1994.
From 1979 to 1991 DeNovellis served as Deputy
Regional Administrator (DRA) of the Boston Regional Office of
Human Development Services (HDS), which was part of HHS.
DeNovellis's position was eliminated in an agency
reorganization that occurred in the spring of 1991. After
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some months "in limbo," in the form of temporary assignments
to "meaningless" positions, DeNovellis became the program
manager of the Aid to Families with Dependent Children (AFDC)
program within the recently formed Administration for
Children and Families (ACF). His civil service grade
remained the same: GS-14.
Until the reorganization, DeNovellis's supervisor,
A. Kenton Williams, was the Regional Administrator (RA) of
HDS. Williams was a black male of the age of fifty-five when
this action was filed. There were racial tensions in the
office. Williams often spoke out against the "insidious
racism that exists in our society," and, according to
DeNovellis, "would try to justify the behavior and reactions
of black staff persons, who having been subjected to racial
discrimination over the years, reacted differently under
certain circumstances." Williams also wrote a letter to the
editor of the Boston Globe commenting on the "tremendous
pressures" faced by black executives. These comments about
the inequities suffered by blacks made DeNovellis feel
uncomfortable.
There were also ethnic and race-related comments
around the office that Williams condoned. Members of the
staff would say things like "Vinnie, why don't you have your
people (Mafia) in the North End take care of them." (The
North End is a largely Italian neighborhood of Boston.) Both
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Williams and a black friend of his, St. Clair Phillips, made
negative comments about DeNovellis's ethnicity. And staff
members made general references to "you whites" in Williams's
presence.
Williams and DeNovellis also had work-related
conflicts. Part of DeNovellis's job as DRA was to take
charge of the regional activities during the RA's absence.
Williams was often absent from the office and became
concerned that DeNovellis was signing so much correspondence
on Williams's behalf that it would highlight the frequency of
his absences. For this reason, Williams ordered DeNovellis
in 1989 to stop signing letters on his behalf.
In 1989 and 1990, other government administrators,
including Williams's supervisor in Washington, Pamela
Coughlin, who was white, told Williams that DeNovellis was
spreading negative comments about Williams. On more than one
occasion, Williams also had to intervene in heated disputes
that DeNovellis had with other people in the office. One
such incident pertained to the distribution of space, and
another concerned whether a minority student (who did not
report to DeNovellis) had been absent from work.
In 1990, certain federal employees were given the
opportunity to choose early retirement. DeNovellis was
eligible to retire but rejected the offer. Several people,
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including Williams and two of his black friends, urged
DeNovellis to take this opportunity and retire.
The heart of DeNovellis's complaint is an
assignment to a temporary "detail" to an "unestablished
position" in the Office of Fiscal Operations (OFO) in October
1990. Williams claims he was instructed to order this
reassignment by Coughlin, his (white) supervisor.
Nevertheless, Williams now admits that the detail was "a
sham," and was concocted in part because Williams did not
want DeNovellis to be his deputy. On October 9, 1990,
Williams removed DeNovellis from the order of succession to
act as RA.
DeNovellis suffered no diminution in grade, pay, or
benefits during the detail. He worked under the supervision
of Williams's friend, St. Clair Phillips, who was black.
Officially, DeNovellis was responsible for financial
activities, for which he had no training or capability. For
the first month and a half, he "performed the same (DRA)
duties under a new supervisor." In mid-November, the new
supervisor, Phillips, asked Williams to end the detail
because DeNovellis did not have the background to perform the
OFO work and he was refusing to perform his old DRA duties.
Williams refused. The detail was due to expire in February
1991 but, upon Williams's request, was extended through March
31, 1991.
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On March 8, 1991, DeNovellis filed an EEO
complaint, alleging age, race, and national origin
discrimination in assignment of duties, awards, and
reassignment. On April 11, three days after the EEO officer
interviewed Williams, Williams filed forms requesting that
DeNovellis's position be switched with that of Paul Kelley, a
black male who was a friend of Williams's and who was a
supervisory accountant in OFO. According to DeNovellis,
Williams's purpose in making this request was to protect the
grades of Phillips and Kelley, both black and both friends of
his, in an impending classification review. However, the
classification review and the proposed "job swap" were never
carried out, overtaken by the agency's restructuring in the
spring of 1991.
Around the same time that DeNovellis's initial
detail expired at the end of March 1991, HHS underwent an
internal restructuring. The former HDS and another sub-
agency of HHS, the Family Support Administration, were merged
into a new entity, the Administration for Children and
Families (ACF). The restructuring took several months to
effectuate. During the transition, DeNovellis maintained his
title of DRA of HDS and carried out some tasks of the Deputy
position, but he received no official assignments; as before,
people came to him for information.
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In April or May 1991, Hugh Galligan, a white male,
was appointed Acting Regional Administrator of the new ACF;
he appointed Williams as his Deputy. By May, Williams was no
longer in charge of the Boston office. The appointments of
Galligan and Williams were finalized on August 23, 1991. Two
days later, DeNovellis's position was "realigned"; his
official title remained DRA of HDS (even though HDS was
phasing out) but this was now within the new ACF. The result
was that Williams was DRA of ACF, and DeNovellis retained the
job title "DRA" but remained unassigned in the new agency.
His grade remained unchanged throughout this period.
In December 1991 Williams left Boston for a
position in Washington, D.C. Galligan then transferred
Phillips, who had been the head of OFO of the new agency, to
the DRA position at the new agency. Because Phillips was a
GS-15 and the new DRA opening was a GS-15, Galligan could
transfer Phillips laterally into the position without a
competitive search. Since DeNovellis was a GS-14, he could
not have been promoted to Williams's former position unless a
job vacancy announcement had been made and a competitive
search performed. There is no evidence that Galligan was
precluded from instituting such a search and considering
DeNovellis for the position.
In May 1992 DeNovellis was reassigned from DRA of
the Office of Family Security (OFS) in the new agency, to a
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supervisory position as program manager in the same OFS.
This was not part of the management team of the new agency.
DeNovellis was the last person appointed to a permanent
position in the new agency. Galligan has since detailed him
twice to the OFO as an assistant goal leader for ongoing
restructuring. (Thus, in some respects, DeNovellis claims
his job assignments have been inappropriate because they were
beneath his DRA status and in other respects inappropriate
because the positions required accounting or financial
qualifications which he did not possess.)
According to DeNovellis, at least part of the
reason for the delay in his reassignment in the new agency
was a "position paper" he wrote in early 1992. The paper
pointed out the "convoluted interactions that were going on,"
and it accidently was mailed to a lot of people in the
region, creating a furor. Galligan was asked to find out who
was responsible for this position paper. During the
investigation, DeNovellis's computer was confiscated.
B.
District Court Proceedings
The district court granted summary judgment to the
Secretary as to all claims. It dealt separately with each of
the four types of adverse action alleged by DeNovellis. The
court relied on Landgraf v. USI Film Prods., 511 U.S. 244
(1994), to reject the Title VII claim for deprivation of
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duties that occurred prior to November 21, 1991, the
effective date of the Civil Rights Act of 1991, 42 U.S.C.
1981a ("the Act" or "the 1991 Act"). The court concluded,
essentially, that even if DeNovellis was discriminated
against, he was not entitled to any remedy for it. The
equitable remedies available under Title VII prior to the
1991 Act were not appropriate because he suffered no loss in
pay or loss of job that would warrant back pay or
reinstatement (he did not seek reinstatement). And the new
remedies made available under the 1991 Act (in particular,
compensatory damages) are only available for acts which took
place after November 21, 1991, and therefore did not apply to
DeNovellis's claims of pre-Act discrimination.1
The district court rejected DeNovellis's claim of
post-Act deprivation of duties based on his failure to
present sufficient evidence to enable a reasonable trier of
fact to conclude that the employer's motive for such
deprivation was discriminatory. Whereas DeNovellis provided
indirect evidence that Williams might have been motivated by
improper reasons in making pre-Act assignments, Williams was
no longer in charge of the Boston office after May 1991 and
he left Boston altogether in December 1991. The court held
that DeNovellis could not bootstrap the pre-May 1991 alleged
1. The court also concluded that such remedies were not available under the ADEA as a matter of law, and DeNovellis has not appealed that ruling.
-9- 9
discrimination by Williams into sufficient evidence for a
reasonable trier of fact to conclude that post-November 1991
decisions were animated by similar illegal bias.
DeNovellis also made a claim of hostile work
environment based on negative comments about his ethnic
background coupled with his "sham detail." The district
court rejected this claim for essentially the same reasons it
rejected the deprivation of duties claims: any pre-Act
violation was a wrong without a remedy based on Landgraf, and
there was insufficient evidence that any post-Act
discrimination had occurred. The court stated in one
sentence an alternative ground for its ruling: failure to
exhaust administrative remedies.2
The district court also granted summary judgment to
the Secretary on DeNovellis's claim that his computer was
confiscated in retaliation for filing an EEO complaint. The
court rejected this claim under Title VII on the ground that
DeNovellis failed to exhaust his administrative remedies,
because his EEO complaint alleged nothing about retaliation.
The court rejected the retaliation claim under ADEA on the
merits (the government had waived exhaustion as to ADEA).
The court concluded that DeNovellis failed to present any
2. DeNovellis also presented to the district court a claim that he was denied the opportunity to be considered for promotion to the DRA position in the new agency (ACF) after Williams vacated it in December 1991. He does not pursue this claim on appeal.
-10- 10
evidence to establish a causal connection between his March
1991 age discrimination complaint against Williams and the
February 1992 confiscation of his computer by Galligan.
DeNovellis does not appeal this conclusion.
DeNovellis pursues three arguments on appeal:
(1) that he is entitled to the remedies delineated in the
Civil Rights Act of 1991 because his pre-Act and post-Act
deprivation of duties were part of one continuing violation
and the effects of his "employment purgatory" extended beyond
the effective date of the Act; (2) that the district court
erred in requiring him to exhaust his administrative remedies
as to post-detail deprivations of duties and hostile work
environment; (3) that the district court was obliged to
provide him with a declaratory judgment and/or an award of
attorney's fees.
II.
Standard of Review
We review grants of summary judgment de novo.
Dubois v. United States Dep't of Agriculture, 102 F.3d 1273,
1283 (1st Cir. 1996), cert. denied, 117 S. Ct. 2510 (1997).
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
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moving party is entitled to a judgment as a matter of law."3
Fed. R. Civ. P. 56(c).
"The very mission of the summary judgment procedure
is to pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial." Fed. R.
Civ. P. 56(e) advisory committee's note to 1963 Amendment.
The moving party "bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported her motion for summary
judgment, the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to
demonstrate that a trier of fact reasonably could find in his
favor. Id. at 322-25. At this stage, the nonmoving party
"may not rest upon mere allegation or denials of [the
movant's] pleading, but must set forth specific facts showing
that there is a genuine issue" of material fact as to each
issue upon which he would bear the ultimate burden of proof
3. A factual dispute is material if it has the potential to affect the outcome of the litigation under the applicable law; it is genuine if there is evidence sufficient to support rational resolution of the point in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
-12- 12
at trial. Anderson, 477 U.S. at 256; see Celotex, 477 U.S.
at 321-23.
Like the district court, in deciding a summary
judgment motion we are obliged to view the facts in the light
most favorable to the nonmoving party, drawing all reasonable
inferences in that party's favor. Dubois, 102 F.3d at 1284.
The test is whether, as to each essential element, there is
"sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is
merely colorable or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50
(citation omitted).
Summary judgment is not "automatically preclude[d]"
even in cases where elusive concepts such as motive or intent
are at issue. Valles Velazquez v. Chardon, 736 F.2d 831, 833
(1st Cir. 1984). "[I]f the non-moving party rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation," summary judgment may be appropriate
even where intent is an issue. Smith v. Stratus Computer,
Inc., 40 F.3d 11, 12 (1st Cir. 1994) (internal quotation
marks omitted). Where, however, the nonmoving party has
produced more than that, trial courts should "use restraint
in granting summary judgment" where discriminatory animus is
in issue. Valles Velazquez, 736 F.2d at 833; see
Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d
-13- 13
922, 928 (1st Cir. 1983) (courts are "particularly cautious"
about granting summary judgment in such cases).
III.
Landgraf and the Continuing Violation Issue
government as to pre-Act deprivation of duties. The court
correctly found that the five-month assignment of DeNovellis
to a financial position for which he had no background and
the concomitant deprivation of meaningful duties constituted
an adverse employment action within the meaning of Title VII.
See Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996)
(holding that "tak[ing] something of consequence from the
employee," including "divesting her of significant
responsibilities," constitutes an adverse employment action);
see also Collins v. Illinois, 830 F.2d 692, 704 (7th Cir.
1987). The court also found that there was sufficient
evidence in the record to create a factual dispute as to
whether the sham detail and the deprivation of duties were
motivated by illegal discrimination on Williams's part or by
race-neutral (and therefore not violative of Title VII)
personality conflict or cronyism. The court held that,
although DeNovellis would have a triable issue as to
liability for pre-Act discrimination, he had no right to a
remedy under the law as it existed prior to the 1991 Act.
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Prior to enactment of the Civil Rights Act of 1991,
plaintiffs in Title VII cases were limited to equitable
remedies (including back pay, reinstatement, and injunctive
relief). Landgraf v. USI Film Prods., 511 U.S. 244, 252
(1994). The Act, which became effective on November 21,
1991, amended Title VII, and "effect[ed] a major expansion in
the relief available to victims of employment
discrimination." Landgraf, 511 U.S. at 254-55. The 1991 Act
created a right on the part of individuals alleging
intentional unlawful discrimination to recover compensatory
damages "for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment
of life, and other nonpecuniary losses," as well as punitive
damages. 42 U.S.C. 1981a(a)(1) & (b)(3) (1994); see
Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 437
(1st Cir. 1997). The Act also gave Title VII plaintiffs the
right to a jury trial in cases where they seek compensatory
or punitive damages. 42 U.S.C. 1981a(c). These new
provisions, however, do not apply to conduct that occurred
before the effective date of the Act, November 21, 1991.
Landgraf, 511 U.S. at 247, 286.
Applying Landgraf to the instant case, the district
court concluded that, even if DeNovellis were to establish
after trial that his sham detail and employment "purgatory"
violated his rights under Title VII, he would not be entitled
-15- 15
to any remedy. This is because the sham detail ended in
March 1991, prior to the effective date of the 1991 Act.
Therefore, even if liability were found after trial as to
that detail, the only remedies that would have been available
to DeNovellis were equitable, such as reinstatement, back
pay, or an injunction. As the district court analyzed the
remedies for pre-Act conduct: because DeNovellis "suffered
no loss of pay, he may not recover back pay; because he did
not quit his job, he does not seek reinstatement. There is
no possibility of enjoining Williams from future details
because he is no longer in the office, and DeNovellis does
not seek an injunction against details by Galligan. In
short, the five-month detail ending in the spring of 1991, if
based upon illegal discrimination, was a wrong without a
remedy." As to the post-Act deprivation of duties, the
district court found insufficient evidence to create a
triable issue as to discriminatory intent. DeNovellis does
not directly appeal the latter determination.
Instead, DeNovellis takes issue with both rulings,
pre-Act and post-Act, by essentially conflating the two.
DeNovellis argues that he was the victim of a continuing
violation that began before November 21, 1991, and continued
thereafter, entitling him to compensatory damages under the
1991 Act. A related continuing violation argument has been
applied to other time requirements imposed by the
-16- 16
antidiscrimination laws,4 but the theory on which DeNovellis
bases his argument is not one that the courts have approved.
We have delineated two types of continuing
violation cases: systemic and serial. Pilgrim v. Trustees
of Tufts College, 118 F.3d 864, , 1997 WL 370286, at *3
(1st Cir. 1997); see Barbara Lindemann & Paul Grossman,
Employment Discrimination Law 1351-63 (3d ed. 1996). A
systemic violation usually "has its roots in a discriminatory
policy or practice; so long as the policy or practice itself
continues into the limitation period, a challenger may be
deemed to have filed a timely complaint," even if he fails to
show "an identifiable discrete act of discrimination
transpiring within the period." Jensen v. Frank, 912 F.2d
517, 523 (1st Cir. 1990).
DeNovellis does not argue that there was a systemic
violation here. Rather, he argues (A) that a serial
violation occurred; (B) that the continuing effects of his
pre-Act deprivation of duties constituted a continuing
violation; and (C) that he was subjected to a continuing
hostile work environment. We will address each of these
arguments in turn.
4. The issue usually arises in the context of a statute of limitations challenge. See, e.g., United Airlines, Inc. v.
Evans, 431 U.S. 553 (1977). But a continuing violation
theory could be applied to any time requirement imposed by Title VII, whether it be the effective date of an amending statute, as here, or a statute of limitations, as in Evans.
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A. Serial Violation
A serial violation "is composed of a number of
discriminatory acts emanating from the same discriminatory
animus, each act constituting a separate wrong actionable
under Title VII." Jensen, 912 F.2d at 522; Mack v. Great
Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989). To
state a claim under this type of continuing violation,
DeNovellis would have to show that at least one actionable
violation occurred within the relevant time period, even
though the series had begun prior to November 21, 1991. See
id.; Pilgrim, 118 F.3d at , 1997 WL 370286, at *3. He
could then be awarded the remedies made available in the 1991
Act. Cf. Sabree v. United Bhd. of Carpenters & Joiners, 921
F.2d 396, 401 (1st Cir. 1990) (In a continuing violation
case, back pay remedy "may be based on acts that occurred
prior to the limitations period when a violation has been
established by an act within the period."). We must ask,
therefore, whether DeNovellis's post-Act deprivation of
duties constituted one or more separate violations of Title
VII. To show an actionable violation, DeNovellis would have
to satisfy the familiar three-step McDonnell Douglas
framework for analyzing discrimination claims. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
Lattimore v. Polaroid Corp., 99 F.3d 456, 465 (1st Cir.
1996). Of critical importance here, he would have to offer
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facts, at an evidentiary level sufficient to withstand a
motion for summary judgment, showing that the alleged adverse
employment action was motivated by discrimination on the
basis of his race, national origin, or age (for an ADEA
violation). See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981) ("The ultimate burden of persuading
the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with
the plaintiff"). Of course, direct evidence of
discriminatory intent is often hard to come by, and
circumstantial evidence is often the only means of proving
such intent. See United States Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 716 (1983); Lindemann & Grossman,
supra, at 11. As the Court noted in Hicks, DeNovellis may
show discriminatory motive by circumstantial means: "The
factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of
the prima facie case, suffice to show intentional
discrimination. Thus, rejection of the defendant's proffered
reasons will permit [but not require] the trier of fact to
infer the ultimate fact of intentional discrimination, and,
. . . upon such rejection, no additional proof of
discrimination is required." Hicks, 509 U.S. at 511
-19- 19
(footnote and internal quotation marks omitted); see also
Burdine, 450 U.S. at 256 (plaintiff may succeed either
directly or "indirectly by showing that the employer's
proffered explanation is unworthy of credence.").
"[A]t the summary judgment stage the judge's
function is not himself [or herself] to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson, 477
U.S. at 249. The district court found that DeNovellis failed
to offer sufficient evidence, direct or circumstantial, to
meet his burden, even at the summary judgment stage of the
litigation, of providing substantive evidence that
discrimination was a factor in his post-Act deprivation of
duties.
DeNovellis does not seriously contest that finding
on appeal. Nor could he: the record in this case presents
qualitatively different scenarios for the pre-Act and the
post-Act periods. The district court correctly found that
there was enough evidence of possible discriminatory animus
between Williams and DeNovellis that a jury could find the
pre-Act detail was motivated by discrimination and not mere
personality differences or cronyism. But once that detail
ended and Williams was no longer in charge of the Regional
Office, the reasons for DeNovellis's assignments were neither
analogous nor part of the same pattern or series. There is
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precious little evidence or inference to get to a trier of
fact on discriminatory motive for post-Act employment
decisions. Of course, discrimination is not precluded merely
because Williams was no longer in charge. Nor does the fact
that Galligan is white insulate the defendant from a charge
that Galligan's actions were motivated by race. After all,
for the first eight months of Galligan's tenure as RA,
Williams was Galligan's deputy. Galligan, as the new person
in the office, might very well have given great weight to
Williams's allegedly biased recommendations about
reassignment of subordinate personnel during the
reorganization, transition, and realignments. But DeNovellis
presented no evidence of such discriminatory taint, either
directly or by inference.
Indeed, there is evidence to the contrary.
Bureaucratic delays arising from the reorganization, which
indisputably had nothing to do with DeNovellis or with
invidious characteristics, overtook DeNovellis's personal
situation. Further, at his deposition, DeNovellis denied
that any of Galligan's actions were motivated by invidious
discrimination in any decision affecting DeNovellis's
employment. And DeNovellis himself attributed a significant
part of the delay in assigning him to a permanent position in
the new agency to his own error in judgment: the "position
paper" that he wrote and widely disseminated. The district
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court correctly concluded that the record in this case
contains virtually no evidence of post-Act violations.
Therefore, DeNovellis cannot rely on a serial violation
theory to defeat the Secretary's motion for summary judgment.
B. Continuing Effects
DeNovellis also argues another theory to circumvent
Landgraf: that the pre-Act sham assignment constituted a
continuing violation through its continuing effects.
Although the assignment itself was a discrete action that was
over and done with before November 21, 1991, DeNovellis
emphasizes that its effects continued into the post-Act
period. According to DeNovellis, these post-Act effects turn
the pre-Act discrimination into a continuing violation that
continued post-Act, thereby triggering the 1991 Act's
remedies. But continuing effects, without additional post-
Act discriminatory actions, do not turn a discrete pre-Act
decision into a continuing violation. See United Air Lines,
Inc. v. Evans, 431 U.S. 553, 558 (1977).
At one time, it was thought that this "continuing
effects" theory described a viable third type of continuing
violation case, in addition to systemic and serial
violations. But the Court has made it clear that the focus
of the inquiry in continuing violation cases should be on
"whether any present violation exists," not whether there are
residual effects of past discriminatory conduct to which the
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statute does not apply. Id. (holding that a discriminatory
act, not merely the effects of a past discriminatory act,
must occur within the statute of limitations period of Title
VII); see Delaware State College v. Ricks, 449 U.S. 250, 258
(1980); Sabree, 921 F.2d at 400. "[A] court evaluating a
'continuing violation' argument must distinguish between a
continuing violation and the continuing effects of a prior,
yet discrete and no longer existent, discriminatory act."5
Cajigas v. Banco de Ponce, 741 F.2d 464, 469 (1st Cir. 1984);
see Pilgrim, slip op. at 9; Kassaye v. Bryant College, 999
F.2d 603, 606 (1st Cir. 1993).
We recently rejected a plaintiff's theory that the
failure to restore her to her prior position formed part of a
continuous chain of misconduct extending beyond the time
deadline. Morrison, 108 F.3d at 443. We held that the
employer's "inaction [was] not enough." Id. We pointed to
5. We note that this is a rule governing what kind of conduct creates liability, not a rule of evidence. Past acts of discrimination may constitute relevant background evidence and therefore may be admissible at trial. See Evans, 431
U.S. at 558; Sabree, 921 F.2d at 400 n.9, 402.
Moreover, although not considered in determining liability, the continuing effects of discriminatory conduct are considered at the relief stage if liability is found. "The objective of fashioning an appropriate remedy in Title VII cases is to formulate the most complete relief possible to eliminate the effects of discrimination." Sabree, 921
F.2d at 401 (internal quotation marks omitted); see Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-21 (1975) (To the
extent consistent with statutory limitations, once a violation of Title VII has been found, it is important for courts to fashion "make whole" relief.).
-23- 23
what we had said in a somewhat analogous situation: "'it was
incumbent upon [the plaintiff] to allege facts giving some
indication that the later refusals were themselves separate
. . . violations.'" Valles Velazquez, 736 F.2d at 833
(quoting Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018
(1st Cir. 1979)). The same reasoning applies to the instant
case. Even though DeNovellis's sham detail had not been
remedied by the time the Act became effective, the focus at
the liability stage of our inquiry is the date the employer
made the allegedly discriminatory decision to detail him,
even though the decision's effects still persisted after that
effective date. See De Leon Otero v. Rubero, 820 F.2d 18, 20
(1st Cir. 1987) (Defendants' refusal to reinstate plaintiff
"was not a separate act of discrimination, but rather a
consequence of his initial demotion."); Valles Velasquez, 736
F.2d at 833 (demotion followed by defendant's repeated
refusals to reinstate plaintiff did not constitute a
continuing violation); Goldman, 607 F.2d at 1018-19 (denial
of requests to be retransferred back to original department
after allegedly discriminatory initial transfer did not
constitute a continuing violation). We conclude that
DeNovellis's continuing effects argument is legally
insufficient.
C. Hostile Work Environment
-24- 24
As his final salvo against the Landgraf bulwark,
DeNovellis argues a theory of hostile work environment which
would constitute a continuing violation of Title VII.6 See
Mills v. Amoco Performance Prods., Inc., 872 F. Supp. 975,
986 (S.D. Ga. 1994) (A "hostile environment sexual harassment
claim is an archetypal continuing violation claim."). He
cites cases involving sexual harassment where courts have
concluded that the allegations "were not discrete and
independent acts of sexual harassment . . . but additional
components of one cause of action for an alleged sexually
hostile environment." Mills, 872 F. Supp. at 985. "A
hostile environment claim is a single cause of action rather
than a sum total of a number of mutually distinct causes of
6. The government argues that DeNovellis cannot raise this hostile work environment argument here because he failed to allege it in his complaint. That view misconstrues the purpose of the complaint in federal litigation. Under the concept of notice pleading, a complaint need not clearly articulate the precise legal theories upon which the plaintiff bases his right to recovery. The complaint must simply "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 150 n.3
(1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
The plaintiff in the present case made clear in his complaint the types of adverse action he was alleging (sham detail, derogatory comments), and set forth the discriminatory basis that he claimed for those actions (race, national origin, age), in violation of Title VII and the ADEA. As for legal theories, he then put his continuing hostile work environment theory before the district court when the court considered the defendant's motion for summary judgment (albeit in a reply brief). That is sufficient to enable the plaintiff to argue that theory on appeal. Cajigas v. Banco de Ponce, 741
F.2d 464, 468 n.12 (1st Cir. 1984).
-25- 25
action to be judged each on its own merits." Vance v.
Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir.
1989). The Mills court therefore allowed the plaintiff to
seek recovery of compensatory and punitive damages for any
post-Act conduct amounting to sexual harassment under Title
VII. Id.
Although DeNovellis does not discuss them, other
courts have allowed Title VII claims for harassment other
than sexual harassment. See Lattimore, 99 F.3d at 463;
Lindemann & Grossman, supra, at 749-54. Indeed, until recent
years, one of the most common forms of harassment claim was
verbal abuse, such as racial epithets. See Lindemann &
Grossman, supra, at 749-54. Harassment may also consist of
pranks and other forms of hazing, even without racial slurs,
although, in such cases, "courts look especially closely to
see whether the conduct is in fact racially [or otherwise
invidiously] motivated." Id. at 753.
Not all offensive conduct is actionable as
harassment; trivial offenses do not suffice. See Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). The Court has
ruled that, in order to establish a Title VII claim for
sexual harassment under a hostile environment theory, the
conduct must be "'sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an
abusive [or hostile] working environment.'" Harris v.
-26- 26
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Los
Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707
n. 13 (1978)); see Vinson, 477 U.S. at 67; Carleton Woolen
Mills, 108 F.3d at 439.
In determining whether harassment on the job is
sufficiently severe or pervasive to rise to the level of a
Title VII violation, courts look to the gravity as well as
the frequency of the offensive conduct. See, e.g., Vance,
863 F.2d at 1510-11 (noose hanging from light fixture above
employee's work station twice was sufficient to establish
harassment violation). Guidelines published by the Equal
Employment Opportunity Commission (EEOC) require that sexual
harassment be severe enough to alter the victim's workplace
experience (even if the conduct only occurs once), or
pervasive enough to become a defining condition of the
workplace. EEOC Policy Guidance on Sexual Harassment, 8 FEP
Man. at 405:6689; see Lindemann & Grossman, supra, at 794.
Sexual harassment can be severe enough to be illegal even
without tangible effects on job performance or psychological
well-being. Harris, 510 U.S. at 22.
DeNovellis's reliance on sexual harassment cases
such as Mills is misplaced because the situations are not
analogous. Mills and other sexual harassment cases involve a
pervasive and continuing hostile work environment, which
constitutes a continuing violation, akin to a systemic
-27- 27
(continuing practice) violation. In contrast, DeNovellis's
allegations of "purgatory" job assignments set forth, at
best, allegations as to discrete and independent employment
decisions, however adverse. Such claims are not pervasive
enough to be considered as one continuous imposition of
hostile work environment, analogous to sexual harassment.
Nor is a "purgatory" assignment sufficiently severe to
constitute, by itself, a hostile work environment. As
previously noted, the fact that DeNovellis remained assigned
to "purgatory" cannot constitute a post-Act violation, even
though the effects of that assignment decision were prolonged
into the post-Act period by the bureaucratic delays emanating
from the agency's reorganization. See Evans, 431 U.S. at
558; see Part III.A., supra.
DeNovellis correctly points out that the court must
focus on the work atmosphere as a whole, and not separate out
each demeaning work assignment or derogatory remark for
individual analysis. See Vance, 863 F.2d at 1510.
Nevertheless, the question is whether he produced enough
evidence on the entire summary judgment record to enable a
reasonable trier of fact to find a cognizable hostile
environment claim. We agree with the district court that he
did not.
Williams and others at HHS apparently made some
scattered comments that could be construed as evincing
-28- 28
racial, ethnic, or age-based hostility, although some of the
comments in the record were not made in DeNovellis's
presence. DeNovellis does not argue that these comments were
severe or pervasive, nor does he claim that they rise to the
level of sufficiency necessary to make out a prima facie case
of harassment. Rather, he appears to offer them as probative
of discriminatory motive underlying his job assignments.
The major aspect of his work environment that
DeNovellis claims was hostile or "harassing" was his so-
called "employment purgatory" of job assignments to positions
he considered to be unfit for his level of qualification. As
already noted, the "hostile" aspect of remaining in an
undesirable job assignment is not akin to a pervasive
environment claim; it is a discrete employment decision,
however adverse it may be. Even when this is combined with
the derogatory comments, we do not think a fact-finder, based
on this record, could reasonably conclude that DeNovellis's
work environment was so pervaded with racial, ethnic, or age
discrimination so as to constitute a violation of Title VII.
That DeNovellis would be left without a remedy if
we affirm the district court's decision is not a sufficient
reason to warrant reversal. The Court in Landgraf was not
moved by petitioner's argument there that, "if she [could]
not obtain damages pursuant to [the 1991 Act], she [would] be
left remediless despite an adjudged violation of her right
-29- 29
under Title VII to be free of workplace discrimination." 511
U.S. at 285 n.38. As the Court put it, Title VII "did not
create a 'general right to sue' for employment
discrimination, but instead specified a set of 'circumscribed
remedies,'" and "[u]ntil the 1991 amendment, the Title VII
scheme did not allow for damages. We are not free to fashion
remedies that Congress has specifically chosen not to
extend." Id. (quoting United States v. Burke, 504 U.S. 229,
240 (1992)). DeNovellis's lack of a remedy (even if there
were a violation) is a result of the way Congress had drafted
Title VII prior to the 1991 Act; whatever unfairness arose
from that limited remedial scheme affected all plaintiffs
suing under it.
IV.
Exhaustion of Administrative Remedies
DeNovellis argues that the district court erred in
dismissing his post-detail deprivation of duties and hostile
environment claims because he failed to exhaust his
administrative remedies. DeNovellis misconstrues the
district court's decision. The court did not grant summary
judgment against him based on his failure to exhaust
administrative remedies. With respect to the post-Act
deprivation of duties the district court stated that "a
strong argument" could be made that he has not exhausted his
Title VII claim, but the court did not decide the issue.
-30- 30
Moreover, with respect to his claim under the ADEA, the court
noted that the government had waived any exhaustion
argument.7 The district court decided the post-Act
deprivation of duties claim on the basis that DeNovellis
failed to produce evidence to support a claim of
discrimination, sufficient to withstand summary judgment.
The district court rejected DeNovellis's hostile
work environment claim based on the same reasoning as the
pre-Act deprivation of duties (a possible wrong but without a
remedy). The court added one sentence stating failure to
exhaust as an alternative ground for rejecting this claim,
but we need not address that here because we affirm based on
DeNovellis's failure to demonstrate a genuine issue as to a
severe or pervasive hostile environment.
Thus, we need not reach DeNovellis's exhaustion
argument because we uphold the district court's summary
judgment ruling as to Title VII and the ADEA based on its
reasons other than exhaustion.
7. The government takes the position that the ADEA does not require a federal employee to exhaust his administrative remedies. The Supreme Court has held, in the context of a private employer, that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982). Quite possibly
Zipes should apply as well when a federal employee sues a
federal agency, see Rennie v. Garrett, 896 F.2d 1057, 1059-60
(7th Cir. 1990) (citing cases); but we need not decide the point definitively in the present case.
-31- 31
-32- 32
Declaratory Relief and Attorney's Fees
Finally, DeNovellis argues that the district court
should have awarded him declaratory relief and attorney's
fees. His reasoning, however, is based on a false premise.
DeNovellis asserts that the district court
ruled as a matter of law that DeNovellis' "five-month assignment to a financial position for which he had no background was not only a set-up for failure but also an adverse employment action" motivated by illegal discrimination based upon age, race or ethnicity.
The internal quotations accurately reproduce the district
court's conclusion as to the legal question of whether the
sham assignment constituted an adverse employment action
within the meaning of Title VII and the ADEA. DeNovellis's
assertion after the internal quotation, however,
misrepresents what the district court found.
The court held that DeNovellis had presented
sufficient evidence on the intent issue to survive a summary
judgment motion as to his pre-Act deprivation of duties. The
court did not make a conclusive factual finding as to
discriminatory intent; that question would be resolved by the
trier of fact if the matter went to trial. The court granted
the Secretary's motion for summary judgment because the court
found that DeNovellis would not be entitled to a remedy even
if the case went to trial and he were able to persuade the
-33- 33
trier of fact that the defendant was motivated by a
discriminatory intent.
The difference between what the court actually held
and what DeNovellis claims it held is fatal to his argument
that the court was obligated to award him a declaratory
judgment and attorney's fees.8 If DeNovellis were correct in
his characterization of the posture of the case -- that the
district court had already made a factual finding of
discriminatory intent -- then the court would still have
discretion as to whether to grant declaratory relief after
finding discrimination at trial. But at least then
DeNovellis might be able to persuade us that the district
court abused its discretion in denying him declaratory relief
and fees.
The Declaratory Judgment Act is "an enabling Act,
which confers a discretion on the courts rather than an
absolute right upon the litigant"; courts have broad
discretion to decline to enter a declaratory judgment.
Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting
Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 241
(1952)). "By the Declaratory Judgment Act, Congress sought
8. Although his complaint did not seek a declaratory judgment, DeNovellis argues that the court had the authority to award such relief under his final prayer for relief, which sought "such other and further relief as may be just and proper." He is correct on this point, but we reject his declaratory judgment argument on other grounds.
-34- 34
to place a remedial arrow in the district court's quiver; it
created an opportunity, rather than a duty, to grant a new
form of relief to qualifying litigants. Consistent with the
nonobligatory nature of the remedy, a district court is
authorized, in the sound exercise of its discretion, . . . to
dismiss an action seeking a declaratory judgment before
trial." Wilton, 515 U.S. at 288. Although "federal courts
have a 'virtually unflagging obligation' to exercise the
jurisdiction conferred on them by Congress," a district court
may "nonetheless abstain from the assumption of jurisdiction
over a suit in 'exceptional' circumstances" such as where a
declaratory judgment is sought regarding an issue currently
pending in a state court action. Wilton, 515 U.S. at 284
(quoting Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 813, 817-18, 818-20 (1976)). "In the
declaratory judgment context, the normal principle that
federal courts should adjudicate claims within their
jurisdiction yields to considerations of practicality and
wise judicial administration." Wilton, 515 U.S. at 288. But
see Steffel v. Thompson, 415 U.S. 452, 468 (1974) ("'[A]
federal district court has the duty to decide the
appropriateness and the merits of the declaratory request
irrespective of its conclusion as to the propriety of the
issuance of [a requested] injunction.'") (quoting Zwickler v.
Koota, 389 U.S. 241, 254 (1967)); Frankfurter & Landis, The
-35- 35
Business of the Supreme Court: A Study of the Federal
Judicial System 65 (The federal courts are "the primary and
powerful reliances for vindicating every right given by the
Constitution, the laws, and treaties of the United States.").
The standard of appellate review of a decision as
to declaratory relief is whether the district court abused
its discretion. Wilton, 515 U.S. at 289. Thus, if the
district court actually found discriminatory intent in
DeNovellis's deprivation of duties, we might or might not
find that the denial of a declaration to that effect was an
abuse of discretion. Cf. Metropolitan Stevedore Co. v.
Rambo, 117 S. Ct. 1953 (1997) (nominal damages permitted in
Longshore and Harbor Workers' Compensation Act case in order
to preserve right to receive future benefits).
Because the district court found that the question
of discriminatory intent was a triable issue, without
reaching any conclusion as to whether such intent actually
existed, our review of its denial of declaratory relief is in
a different posture. The court faced the possibility of
conducting a trial in this case, assessing arguments and
counter-arguments as to what people intended by certain
statements or actions, with no opportunity to award any
relief to DeNovellis that would remedy the harm he allegedly
suffered. After trial, the court might possibly have the
authority to enter a declaration that some or all of the
-36- 36
defendant's now-terminated employment actions were
discriminatory. In the circumstances of this case, the
district court's decision -- prior to trial -- to refrain
from such a fruitless endeavor was within its discretionary
power. See Wilton, 515 U.S. at 288.
Because DeNovellis has no entitlement to a
declaratory judgment and because we have affirmed the denial
of other relief, he has not prevailed on any issue in the
case and attorney's fees may not be awarded. See 42 U.S.C.
1988; Texas State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791-92 (1989) (A litigant is a
prevailing party if he "has succeeded on 'any significant
issue in litigation which achieve[d] some of the benefit the
parties sought in bringing suit.'") (alteration in original)
(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.
1978)).
Conclusion
Title VII and our other antidiscrimination laws
serve essential societal goals. See Aikens, 460 U.S. at 716.
If America stands for anything in the world, it is fairness
to all, without regard to race, sex, ethnicity, age, or other
immutable characteristics that a person does not choose and
cannot change. We have recently had occasion to note that
"Title VII is one of the brightest stars in the firmament of
this nation's antidiscrimination laws." Serapion v.
-37- 37
Martinez, F.3d , , 1997 WL 394605, at *2 (1st Cir.
July 18, 1997).
The standards for summary judgment are highly
favorable to the party opposing such a motion, and issues of
motive often present fair factual disputes properly resolved
by a factfinder after trial. Nevertheless, in this instance
the dearth of evidence is simply too great and summary
judgment was properly granted.
The judgment of the district court is Affirmed. Affirmed
-38- 38