LeFevre v. Brown

Opinion

USCA1 Opinion

May 13, 1996          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



        No. 95-2302



                                 PATRICIA L. LeFEVRE,



                                Plaintiff, Appellant,



                                          v.



                                     JESSE BROWN,

                  SECRETARY OF THE DEPARTMENT OF VETERANS' AFFAIRS,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,



                                   Circuit Judges.
                                   ______________



                                 ____________________



            Gregory P. Piccirilli with whom Sciacca  & Piccirilli was on brief
            _____________________           _____________________

        for appellant.

            Sheldon Whitehouse for the United States.
            __________________


____________________


____________________



Per  Curiam.     After  exhausting  her   administrative
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            remedies, Patricia  LeFevre filed suit in  the district court



            seeking damages  and injunctive relief  against her employer,



            the  United  States  Department  of  Veterans'  Affairs,  for



            alleged gender discrimination in violation  of Title VII.  42



            U.S.C.    2000e-16(c).  She  claimed that  she was  initially



            denied  relocation benefits  provided to  comparably situated



            male  employees,   and  that  when  she   complained  to  her



            supervisor she was assigned  to a lesser position at  another



            office.  An additional claim of age discrimination, 29 U.S.C.



              633a(c), was withdrawn at trial and is no longer at issue. 


LeFevre  presented her  claims of  gender discrimination



            and retaliation to a jury  in October 1995.  At the  close of



            LeFevre's evidence, the district judge in an opinion from the



            bench granted  judgment as  a matter of  law in favor  of the



            government  on  the  gender  discrimination  and  retaliation



            claims.  Fed.  R. Civ. P. 50(a).  This  appeal followed.  The



            only  issue on appeal is  whether the evidence,  taken in the



            light most  favorable to  LeFevre, would permit  a reasonable



            jury to decide in her favor,  and our review on that issue is



            de  novo.  Gibson v. City of  Cranston, 37 F.3d 731, 735 (1st
            ________   ______    _________________



            Cir. 1994).



                 To summarize  the evidence, LeFevre was  working for the



            Veterans' Administration in  Texas in early  1990.  In  March


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1990, she applied for  an advertised management position with



            a VA office in  Providence, Rhode Island.  The  VA's internal



            form authorizing  the position specified  that no  relocation



            expenses  were  authorized;  but  this  restriction  was  not



            mentioned  in the  advertisement itself.   At  trial, LeFevre



            testified  that during  an  interview for  the  job with  the



            Providence Regional Manager Clyde  Waite, Waite told her that



            she would be  paid for  the expense of  moving her  household



            goods.   Waite testified he  told LeFevre that  no relocation



            benefits  were available but that  he later told  her that he



            might be able  to get reimbursement for moving  her household



            goods, which in fact he did.  



                 After LeFevre  began working in Providence,  she learned



            that two men hired for similar positions had received further



            benefits  such  as  reimbursement  for  lodging  and  mileage



            expenses,  a per diem allowance,  and a home equity purchase.



            LeFevre told  Waite  that she  believed she  was entitled  to



            these benefits, but Waite again said that no further benefits



            were available.   LeFevre  complained to her  congressman and



            thereafter  a VA official in Washington ruled that the denial



            of  benefits was  due  to a  misinterpretation of  government



            regulations   and   that  LeFevre   was   entitled   to  full



            reimbursement.  LeFevre eventually  was paid over $61,000 for



            expenses relating to her move.  


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Shortly after LeFevre told Waite that she was contacting



            her  congressman, LeFevre was  transferred from Providence to



            Cranston, R.I, to another VA position, apparently one with no



            management  responsibility.   LeFevre contended  that Waite's



            motive  was   to  retaliate   against  her  because   of  her



            complaints.   Waite testified that the  transfer stemmed from



            an   ongoing  appraisal   of  LeFevre's   position  and   job



            performance that had begun long  before she raised the  issue



            of relocation expenses. 



                 Against  this background,  we  agree with  the  district



            court  that LeFevre  did  not present  evidence permitting  a



            reasonable  jury  to conclude  that  gender  bias caused  the



            original  alleged disparity  in  treatment  as to  relocation



            expenses.  LeFevre's burden  was defined by McDonnell Douglas
                                                        _________________



            Corp. v.  Green, 411 U.S. 792 (1973).   There was no specific
            _____     _____



            evidence of  discriminatory intent, but to  establish a prima
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            facie case it was enough  for LeFevre to show that she  was a
            _____



            woman and that men, apparently similarly situated, were given



            more favorable treatment.  Id. at 802.  This LeFevre did.  
                                       ___



                 But  it was  then  open to  the  defense to  respond  by



            showing a non-discriminatory reason for the action.  411 U.S.



            at  802-03.   The  government  did this  by  introducing into



            evidence the VA's "request  for personnel action"; this form,



            authorizing  the  advertising  of  the  position,  explicitly



            stated that  "no relocation expenses are  authorized."  Waite


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testified that this document  was prepared before the  VA had



            any notion whether the successful applicant would be a man or



            woman.  On  its face, the document provides a  reason for the



            decision  to deny  relocation  benefits that  was not  gender



            based.         



                 We  are now told that because  LeFevre was relocated for



            the convenience  of the government, she  could not rightfully



            be denied relocation benefits.   But it does not  matter that



            the  government's original reason  for denying benefits (lack



            of  authorization) was  based  on a  misunderstanding of  the



            regulations; under Title VII  the employer has a right  to be



            wrong  so   long  as   the  decision   was  not   tainted  by



            discrimination.   Pollard  v. Rea Magnet  Wire Co.,  824 F.2d
                              _______     ____________________



            557, 559  (7th Cir.) ("reasons honestly  described but poorly



            founded" represent bad judgment, not  pretext), cert. denied,
                                                            ____________



            484 U.S. 977 (1987).



                 LeFevre  was   entitled  to  offer   evidence  that  the



            government's explanation was  pretext, for example,  that the



            explanation had been made up after the fact.  LeFevre did not



            object  at trial to the authenticity of the document, but she



            does  offer on  appeal a  host of  arguments to  suggest that



            neither  the  document nor  Waite's  testimony  about it  was



            reliable.   She  points  out, for  instance,  that while  the



            authorizing document purportedly denied  relocation benefits,


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the   public  advertisement  said  nothing  about  relocation



            benefits one way or the other.



                 How  far  LeFevre  developed  these  arguments  in   the



            district court is not entirely clear, but it does not matter.



            Taking  them all  together, they  simply would  not permit  a



            reasonable jury  to conclude--as LeFevre now  urges--that the



            document was  altered  later  or is  in  some  other  respect



            inauthentic.  Thus, the public advertisement turns  out to be



            a  government  form in  which there  is  no separate  box for



            describing   relocation  benefits.     The   other  inference



            arguments  are  no  stronger,  whether  taken  separately  or



            together.



                 LeFevre's other main contention  is that the document is



            of no consequence because  Waite did not actually rely  on it



            in  denying the  relocation  benefits.   In support,  LeFevre



            argues  that  she was  initially  told  by  Waite  that  some
                                                                     ____



            relocation benefits would be provided, and that  subsequently



            the reason given for denying full benefits was that she was a



            "new hire."  We  agree that an employer  cannot automatically



            escape   liability   by   exploiting    a   nondiscriminatory



            justification on which it did not actually rely.  McKennon v.
                                                              ________



            Nashville Banner Pub. Co., 115 S. Ct. 879, 885 (1995).  
            _________________________



                   But  any  apparent  inconsistency   between  LeFevre's



            version of events and the government's proffered reason--that



            the  benefits  were  not  authorized--fades  when  one  looks


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carefully at the  testimony.   Waite testified  that he  told



            LeFevre in the initial  interview that no relocation benefits



            were  authorized, but  that in  a subsequent  conversation he



            said he "would  check with the  central office" to see  if he



            could get reimbursement for the  household goods.  He further



            testified  that he  contacted a  superior in  Washington, Dr.



            Blank, who authorized expenses for moving household goods.   


Waite's  detailed account  of  his effort  to secure  an



            exception  is consistent  with  his initial  reliance on  the



            personnel document  that said  no  expenses were  authorized.



            And  at the  district court  hearing on  the Rule  50 motion,



            LeFevre's counsel conceded that LeFevre initially was told no



            relocation  expenses  were  authorized.    LeFevre's  general



            assertion  at  trial--that  Waite  told  her  she  would  get



            relocation  expense for  household  goods--was  apparently  a



            compressed version of the account given by Waite. 



                 As  for the  "new hire"  justification for  denying full



            benefits, Waite conceded that  this was one of  reasons later



            given  to  LeFevre.    But  he  explained  that  this  reason



            originated  not with  him but  with a  VA personnel  officer.



            Waite testified  that he  had  no personal  knowledge of  the



            basis  for  the  "new  hire"  justification  and  was  simply



            deferring to the expertise of the personnel officer.   Again,



            this testimony was uncontradicted.  Title VII offers remedies


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only  for discrimination  and not  for bureaucratic  error or



            confusion.     LeFevre's retaliation claim might or might not



            have more merit  than her gender discrimination  claim.  Even



            though  the original  denial of  relocation benefits  was not



            shown to be gender based, the statute independently prohibits



            an employer  from taking  adverse action against  an employee



            because of the fact that the employee is pursuing a Title VII



            claim.   42 U.S.C.   2000e-3.   In this case,  there is doubt



            whether  the  record would  permit  an  inference that  Waite



            engaged in retaliation, there being very little evidence that



            Waite  knew  at the  time of  the  transfer that  LeFevre was



            claiming gender discrimination.



                 But  we need not discuss the evidence at length, or rule



            upon the  issue, because on  appeal LeFevre makes  no serious



            attempt to  develop the retaliation charge  as an independent



            claim for the jury.  We normally do not address arguments not



            developed  on appeal.   Argencourt v. United  States, 78 F.3d
                                    __________    ______________



            14, 16  n.1  (1st Cir.  1996).   Given  the  thinness of  the



            evidence as to retaliation,  there is certainly no indication



            of plain error.



                 Affirmed.
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