Hazel v. Postmaster General

• Court: Court of Appeals for the First Circuit
• Decided: October 14, 1993
• Docket: 92-1816
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-1816

                                   GEORGE E. HAZEL,

                                Plaintiff, Appellant,

                                          v.

                               U.S. POSTMASTER GENERAL,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                           Feinberg,* Senior Circuit Judge,
                                      ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Stephen  E.  Kiley with  whom  Kiley  & Hazel  was  on  brief  for
            __________________             ______________
        appellant.
            David  G.  Karro,  Attorney,  Appellate  Division,  United  States
            ________________
        Postal Service, with whom A. John  Pappalardo, United States Attorney,
                                  ___________________
        Gwen  R. Tyre,  Assistant  United States  Attorney, R.  Andrew German,
        _____________                                       _________________
        Chief   Counsel,  Appellate  Division,   and  Cynthia  J.  Hallberlin,
                                                      _______________________
        Attorney, Appellate  Division, United  States Postal Service,  were on
        brief for appellee.

                                 ____________________

                                   October 14, 1993
                                 ____________________

        _____________________

        *Of the Second Circuit, sitting by designation.

FEINBERG, Senior Circuit Judge.  Plaintiff George E.
                                 ____________________

             Hazel appeals from a judgment of the United States District

             Court for the District of Massachusetts, Robert E. Keeton, J.,

             granting a motion by defendant-appellee Anthony M. Frank,

             Postmaster General of the United States, for judgment on

             partial findings pursuant to Fed. R. Civ. Proc. 52(c).  Hazel,

             a former postal employee, had alleged that the Postal Service

             violated his civil rights when it fired him in retaliation for

             providing legal advice to another postal employee in her sex

             and age discrimination claims against the Postal Service.  For

             the reasons stated below, we affirm.

Background
                                           __________

                            George Hazel joined the Postal Inspection

             Service in 1971.  The events giving rise to this action began

             on August 27, 1984 when Hazel's immediate supervisor, John

             Cinotti, gave him a "very good" evaluation only to have the

             next higher supervisor, M. W. Ryan, change it to "good," with

             the explanation that Cinotti had not justified the "very

             good."  Hazel thought Ryan was reacting to the fact that Hazel

             was representing an Inspection Service clerk who had charged

             Ryan with sex and age discrimination.  Hazel thought his

             suspicions were confirmed on September 5, 1984, when Ryan told

             him he would be transferred from the Fraud Section, where

                                            2

Hazel had been for 13 years, to the Audit Section -- despite

             the fact that he had no auditing or accounting background. 

             Moreover, according to Hazel, audit assignments, unlike fraud

             assignments, are very undesirable.

                            After learning of Ryan's intention to reassign

             him, Hazel contacted an Equal Employment Opportunity (EEO)

             counselor with respect to the alleged employment

             discrimination.  Thereafter, Ryan sent written confirmation of

             the reassignment, and Hazel responded as follows:  "Since I

             believe your written directive ... violates the law, I

             respectfully refuse to accept the reassignment."  Ryan warned

             Hazel that his letter could "be considered evidence of refusal

             to obey a direct order" and gave Hazel an opportunity to obey

             by moving the reporting date back from October 15 to October

             18, 1984.  Instead of complying with the order, Hazel reported

             for firearms training on the 18th, had lunch with a friend and

             went home.

                            The next day, Ryan asked Hazel if he intended

             to report for his new assignment, and Hazel did not answer the

             question.  Ryan then handed him a letter putting him in an

             off-duty status.  When Hazel protested this decision, Ryan

             replied:  "[Y]our placement in an off-duty status ... will ...

             remain in effect until such time as you report for duty to

             your new assignment."  Hazel testified that he never attempted

             to report to the new assignment after receiving that reply. 

                                            3

Finally, on October 22, 1984, Ryan charged Hazel with, and

             recommended removing him from the Postal Service for, 

             insubordination.  

                            The Regional Chief Inspector accepted the

             recommendation, and in a letter to Hazel, dated November 8,

             1984, stated:

                            I find that the charge, insubordination, as
                            stated in the notice of October 22, 1984, is
                            fully supported by the evidence.  You were
                            directed by Mr. M.W. Ryan, Inspector in Charge,
                            Boston Division, to report effective October
                            15, 1984 to Team Leader E.A. Jacobs for Job
                            Assignment #40.  On that date, you directed a
                            letter to Mr. Ryan refusing to comply with his
                            directive.  

                                                             . . .

                            On October 16, 1984, you were again ordered to
                            report to Job Assignment #40 no later than
                            October 18, 1984.  As of October 19, 1984, you
                            had not reported as directed, so you were
                            placed in a non-duty non-pay status.

                                                             . . . 

                            The position of Postal Inspector requires the
             utmost         individual loyalty, diligence and dedication in
                            the undertaking of assigned duties as needs of
                            the Service dictate.  Accordingly, a supported
                            charge of insubordination is an extremely
                            serious and grave charge which will not be
                            condoned or tolerated.

The Chief Inspector removed Hazel from the Postal Service

             effective November 23, 1984.  In response to another appeal by

             Hazel, the Chief Inspector stated:

                            Your failure to obey a direct order from the
                            Inspector in Charge is intolerable.  This type

                                            4

of conduct is disruptive and undermines the
                            morale of the employees in the office. 
                            Additionally, it is not in keeping with the
                            image and professional standards expected of a
                            Postal Inspector.  Based on the nature of this
                            incident your placement in a non-duty non-pay
                            status was necessary and appropriate.  

In January 1988, after exhausting his

             administrative and EEO remedies, Hazel filed this action.  It

             came to trial in June 1992, almost eight years after Hazel's

             removal for insubordination.  After three days of a bench

             trial, during which Hazel presented his case through the

             testimony of seven witnesses including himself, defendant

             Postmaster General moved for judgment on partial findings

             pursuant to Fed. R. Civ. Proc. 52(c).  The district judge

             stated his findings of fact and conclusions of law in open

             court, granted the motion and entered judgment for defendant. 

             This appeal followed.

Discussion
                                       __________

                            Hazel's retaliation claim required him to show

             a violation of either 29 U.S.C.   623(d), which forbids

             discrimination against employees opposing age discrimination,

             or 42 U.S.C.   2000e-3(a), which forbids retaliation against

             employees opposing sex discrimination.  Under either statute,

             Hazel's initial burden was to "establish a prima facie case
                                                        ___________

             sufficient to permit an inference of retaliatory motive."  The

5

burden placed on a plaintiff at this stage "is not onerous." 

             Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
             ________________________________    _______

             (1981).  To state a prima facie claim of retaliation under
                                 _____ _____

             Title VII, the plaintiff must show: "[1] protected

             participation or opposition under Title VII known by the

             alleged retaliator; [2] an employment action or actions

             disadvantaging persons engaged in protected activities; and

             [3] a causal connection between the first two elements[,] that

             is [,] a retaliatory motive playing a part in the adverse

             employment actions."  Petitti v. New England Tel. & Tel. Co.,
                                   _______    ___________________________

             909 F.2d 28, 33 (1st Cir. 1990) (quoting Grant v. Bethlehem
                                                      _____    _________

             Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980)).
             ___________

                       Once the prima facie case is established, the burden
                                _____ _____

             of production, not persuasion, shifts to the defendant to

             articulate a plausible, legitimate, and nondiscriminatory

             justification for the employment decision.  Petitti, 909 F.2d
                                                         _______

             at 31.  Once the employer proffers such a justification,  

                       the McDonnell Douglas framework -- with its
                           _________________
                       presumptions and burdens -- is no longer
                       relevant....the defendant's "production" (whatever
                       its persuasive effect) having been made, the trier
                       of fact proceeds to decide the ultimate
                       question....Thus, rejection of the defendant's
                       proffered reasons will permit the trier of fact to
                                              ______
                       infer the ultimate fact...., [but] the plaintiff at
                       all times bears the "ultimate burden of persuasion." 

St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993)

             (emphasis in original) (citations omitted).

6

The issue of retaliatory motive in an employment

             discrimination case presents "a pure question of fact," and

             the trial court's determination is reviewed under the clearly

             erroneous standard.  See Pullman-Standard v. Swint, 456 U.S.
                                  ___ ________________    _____

             273, 287-88 (1982).  Under the clearly erroneous standard, the

             court's inference must be affirmed if it is "plausible." 

             Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152
             ________    ___________________________

             (1st Cir. 1990).  

                            Judge Keeton heard the testimony of seven

             witnesses including Hazel and, as the trier of fact, was

             entitled to draw his own reasonable inferences as to whether

             Hazel was fired for a retaliatory reason.  In his dispositive

             ruling, the judge stated:

I cannot find that the discharge was motivated
                            by retaliation, or, to put it in language that
                            parallels many of the precedents here, I cannot
                            find that a retaliatory motive was a motivating
                            factor of the discharge, even when assuming
                            that the retaliatory motive was a motivating
                            factor of the downgrading of the rating from
                            very good to good and a motivating factor of
                            the reassignment.   

             The judge further said that

                            the plaintiff was not discharged, even by the
                            plaintiff's own proof, simply because of the
                            protected activity but instead was discharged,
                            by the plaintiff's own proof, because of
                            insubordination ..., a refusal to accept orders
                            and comply with them[.]  [This] is documented
                            and undisputed under the plaintiff's own
                            evidence.  

7

On review to this court, we cannot say that

             these findings of fact are clearly erroneous.  To put it

             another way, Hazel's admission that he refused to report for

             work and the evidence that the Postal Service fired him for

             that very reason provided a "plausible" basis for the district

             court's finding that retaliation is not the most likely reason

             Hazel was fired.   

                            Hazel argues to us, as a procedural matter,

             that the district court should have limited itself to

             determining whether he proved a prima facie case and then
                                             ___________

             waited to hear the Postmaster General's evidence and Hazel's

             rebuttal case.  It is true that in this type of litigation

             courts generally wait until after a defendant has put on its

             case to pass on the sufficiency of its nondiscriminatory

             explanation.  This is because nondiscriminatory explanations

             usually do not surface fully until the defendant's case.  But

             here, Hazel, in his own case, introduced evidence that he was

             discharged for insubordination as well as evidence purporting

             to show that the insubordination charge was only a pretext for

             firing him.  In this court, Hazel points to no further

             evidence that he was unable to present because the district

             court's procedure took him by surprise.  (Indeed, Hazel

             apparently made no such claim in the district court).   

                            Hazel also argues to us that his refusal to

             work was an activity protected by the anti-retaliation

                                            8

statutes.  However, he cites no persuasive authority for the

             proposition that an employee claiming discrimination can on

             that basis absolutely refuse to work where his employer

             directs.  On the contrary, the right to oppose discrimination

             is not a right to refuse to work on account of discrimination. 

             We have held that a plaintiff goes "beyond the scope of

             protected opposition" when he "damages the basic goals and

             interests" of the employer, who has a "legitimate interest in

             seeing that its employees perform their work well."  Hochstadt
                                                                  _________

             v. Worcester Foundation for Experimental Biology, 545 F.2d
                _____________________________________________

             222, 233 (1st Cir. 1976).  The district judge could accept, as

             he obviously did, the judgment of the Postal Service that

             "insubordination is an extremely serious and grave charge,"

             that it is "disruptive and undermines the morale of the

             employees in the office," that it is "not in keeping with the

             image and professional standards expected of a Postal

             Inspector," and that, if proved, it should "not be condoned or

             tolerated."  

                            We are aware that the timing of Ryan's

             downgrading of Hazel's evaluation and the subsequent transfer

             have the smell of bureaucratic retaliation.1  Indeed, the

             district judge assumed that to be so.  Moreover, we are not
                                 
             ____________________

             1              We  are  also  aware,  of  course,  that  the
             Postmaster          General did not present  his case in the
             district court.

9

unsympathetic to Hazel's plight.  After a successful career of

             13 years in the Fraud Section, including responsibility for

             major criminal investigations, Hazel obviously regarded his

             reassignment to the Audit Section -- where his

             responsibilities would have included such routine and

             monotonous work as the adjustment of slip-and-fall cases up to

             $5,000 -- as demeaning.  Perhaps Hazel is arguing that his

             refusal to work was not insubordination because he was

             constructively discharged when Ryan reassigned him.  But Hazel

             could have taken the new job under protest while pursuing his

             remedies.  This he failed to do.  The humiliation Hazel may

             have felt in the new job is a far cry from the serious

             hardship in cases where we have found constructive discharge. 

             See, e.g., Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir.
             ___        _______________    _______

             1992).

                            Hazel relies on Curran v. Department of the
                                            ______    _________________

             Treasury, 714 F.2d 913 (9th Cir. 1983), for the proposition
             ________

             that an employee need not obey an improper order.  The legal

             issue there was whether the mandate of 5 U.S.C.    7701(c) and

             7513 compelled the Merit Systems Protection Board (the Board)

             to reinstate an employee who was removed for refusing to obey

             an improper order that caused serious hardship.  Putting to

             one side the different remedial powers and obligations of the

             Board in that case and the federal district court here, Curran
                                                                     ______

             is distinguishable.  It is clear that the order that the

                                           10

plaintiff there refused to obey -- that he transfer from

             Seattle to San Francisco -- would have imposed serious

             hardships on him that could not be made good by returning him

             a few years later at the end of administrative and legal

             proceedings.  714 F.2d at 918.  The plaintiff apparently

             persuaded the court that "the transfer would threaten his

             family's financial security, interfere with his wife's

             employment, and prevent his completion of a graduate degree." 

             714 F.2d at 916.  In contrast, Hazel's only concrete

             complaints about being assigned to the Audit Section were that

             audit assignments are boring (the work is "useless and

             repetitive") and involve overnight travel.  Yet, the district

             court, as factfinder, was not even obliged to take this claim

             of inconvenience at face value, given Hazel's admission that

             another employee was given an assignment to the Audit Section

             because it would not require her to travel.
                              ___

                            Finally, even if we assume, as did the trial

             court, that Hazel's reassignment and downgraded performance

             evaluation were the product of impermissible retaliation in

             contravention of Title VII, he cannot recover any damages

             because of his failure to mitigate by reporting to work in the

             new post.  And, granting equitable relief would be equally

             futile.  The failure to mitigate undercuts any claim for back

             pay.  As for reinstatement, we realize that our dissenting

             brother suggests a remand so that the district court may

                                           11

consider ordering that statutory remedy by reinstating

             plaintiff to his original "very good" rating and fraud

             inspector's job.  But the able district judge has already

             considered this possibility by assuming that the demotion and

             transfer were both unlawful and by specifically considering

             whether plaintiff was entitled to "back pay or other remedies
                                                         _________________

             available under Title VII" (emphasis supplied).  The judge
             _________________________

             nevertheless chose not to grant any relief on the record

             before him.  The judge certainly had discretion in this

             respect, see Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,
                          ______________    _______________

             320-22 (1st Cir. 1989) (en banc), and, on the record before

             us, we cannot say that he abused it.  Under the circumstances,

             a remand would serve no useful purpose and we will therefore

             not order it.  See Equitable Life Assurance Soc'y v. Porter-
                            ___ ______________________________    _______

             Englehart, 867 F.2d 79, 84 n.3 (1st Cir. 1989) (refusing the
             _________

             remedy appellant sought as "utterly pointless" because it

             would leave her in no better position than she was during

             litigation).

                            In sum, Hazel's proof was sufficient to justify

             the district judge's finding that Hazel was fired for refusing

             to report to work rather than for opposing discrimination. 

             Under the circumstances, the district court was entitled to

             enter judgment for the Postmaster General at the close of

             Hazel's case.  Accordingly, the judgment of the district court

             is             Affirmed.
                            ________

                                           12

STAHL, Circuit Judge, dissenting.  Because I
                                   _____________

             disagree with the majority's reading of the record, I would

             remand in order to give the district court the opportunity to

             consider restoration of plaintiff's "very good" rating and

             reinstatement of plaintiff to his fraud inspector's job. 

             Given plaintiff's refusal to comply with a reassignment which

             he alleged to have been unlawful and in retaliation for

             protected behavior, the district court reasoned that it need

             not reach those issues.  This decision of the district court

             was erroneous.  Cf. Garcia v. Lawn, 805 F.2d 1400, 1401-02
                             ___ ______    ____

             (9th Cir. 1986) (holding that district court was not without

             power to reinstate plaintiff even though plaintiff had been

             dismissed during the pendency of his case for failure to

             report to an allegedly unlawful reassignment).  Accordingly,

             this case should be remanded for consideration of these claims

             and possible equitable relief under Title VII.

13