USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1950
JEAN M. RANDLETT,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY,
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
____________________
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Robert Le Roux Hernandez for appellant.
Lori
J.
Holik,
Assistant
United States Attorney, with whom Donald K.
Stern, United States Attorney, was on brief for the United States.
____________________
July 10, 1997
____________________
BOUDIN, Circuit Judge. This appeal brings to the court
the
most
recent chapter in a 20-year quarrel between a federal
department
and
its
former employee, Jean Randlett. It presents
an
important
legal
issue
concerning the reach of the protection
afforded by Title VII of the Civil Rights Act of 1964, 42
U.S.C. S 2000e et seq. We hold that Title VII can offer
protection against a retaliatory refusal to transfer an
employee, but that no evidence existed here to show
retaliation.
I.
Because Randlett's claims were resolved against her on
summary judgment, we state the facts in the light most
favorable
to
her.
Sargen
t v. Tenaska, Inc., 108 F.3d 5, 6 (1st
Cir. 1997). In 1975, Randlett worked in Denver in the Office
of Civil Rights of the Department of Health, Education and
Welfare
as
an
equal
opportunity specialist with a civil service
grade of GS-12. She applied for a promotion to a GS-13
position
in
Denver
but
was denied promotion in favor of another
candidate. A few months later, in August 1975, she was
terminated.
Randlett filed a complaint with the Equal Employment
Opportunity
Commission,
alleging discrimination based on gender
and national origin (she is white and of European descent).
Six
years
later, the EEOC ruled in her favor, finding that the
record showed "[n]o other credible reason for [her]
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nonselection . . . other than the fact that the selecting
official wanted to insure that the Hispanic male was awarded
the GS-13 position." It found that Randlett's discharge was
similarly motivated by discriminatory animus. In particular,
the EEOC found that the official who considered Randlett's
promotion
had applied pressure on the selecting panel to alter
its
rankings, which favored Randlett, so that the job could go
instead to a friend of the selecting official.
The EEOC's 1981 order directed the Department, now
metamorphosed
into
Health and Human Services ("HHS"), to cancel
Randlett's 1975 discharge and to "immediately reinstate"
Randlett in the Denver office as an equal opportunity
specialist,
grade GS-13. The order also awarded Randlett back
pay and other entitlements for the period since her
termination,
and
it
required HHS to report within 30 days as to
the
steps
it
planned to take to implement the required action.
In late June 1981, Randlett began what would be an
extensive exchange of telephone calls and correspondence,
primarily with Thomas Jefferson, an HHS official based in
Washington,
D.C., who was apparently charged with coordinating
Randlett's reinstatement. She also talked with Patricia
Taphorn, a personnel official in the Denver office. The
upshot,
according to Randlett, was an agreement that she would
return
to
the payroll of the HHS Denver office as of August 9,
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1981, but by using four weeks of accumulated leave, would not
actually report for work until early September 1981.
According
to
both
Randlett and Taphorn, Jefferson was very
difficult to reach over the course of the summer and did not
act quickly enough to confirm this understanding, nor would
anyone else in the Washington office take responsibility for
doing
so.
We
pass
over
the details, but there is no indication
that
anything other than bureaucratic sloth was the cause. In
any
event,
in August 1981, Randlett signed a contract with her
then-current employer, the Barnstable, Massachusetts, school
system,
extending her employment there for an additional year.
Not long afterwards, Randlett received a letter from
Jefferson, confirming that she was reinstated in the Denver
office as of September 1981; he also referred to the
possibility
of a transfer to another regional office, but said
that this was not certain. Further telephone calls were
exchanged,
and
the
matter was still unresolved in October 1981,
when Randlett's father became seriously ill. Randlett then
told
Jefferson that she would need to stay in Massachusetts to
care for her father.
After
further
confusion,
Randlett in February 1982 secured
from
another
HHS
official in Washington a temporary "detail" to
a Boston HHS office, effective March 1, 1982, for a period of
not more than 120 days. The official--Betty Lou Dotson,
director of the Office for Civil Rights--wrote Randlett that
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the
detail
was
"granted
to accommodate your personal situation"
and
concluded
by
saying
that "I trust this detail will give you
the opportunity to attend to your personal responsibilities."
Randlett resigned from her schoolteaching position and
began
working
in
the
Boston HHS office in March 1982. By then,
her
father
had
died,
but
her aging mother's health was failing.
Randlett also claims that, almost immediately, she began to
experience problems in the Boston HHS office because of
inadequate training on work assignments, that she received a
"low satisfactory" ranking in an evaluation, and that she was
listed
at
a
GS-12
level
in Boston (even though she continued to
receive a GS-13 salary).
According to Randlett, Jefferson called her in May 1982
and asked her when she planned to return to Denver. Randlett
replied
that
she thought her position in Boston was permanent,
but in June 1982, she sent a letter to HHS in Washington,
requesting
a
permanent assignment to the Boston office, saying
"this
is
an
unusual request, but probably no more unusual than
the six and a half years of injustices" that she had endured.
It appears that Randlett also had a telephone conversation on
the subject with Bart Crivella, Jefferson's supervisor.
In
early
July
1982,
the
request was answered in writing by
Nathan Dick, the deputy director of the Office for Civil
Rights. Dick's letter denied the transfer request but said
that HHS was willing to extend the temporary detail in Boston
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until
September
30,
1982, with Randlett returning on October 1,
1982, to her "permanent duty station in Denver." The letter
explained:
[I]t
is
not
possible for the Office for Civil Rights
to
offer
you
a permanent assignment in Boston. Your
requested
assignment and subsequent detail to Boston
was
a
temporary action taken only to accommodate you
during
the
adjustment period after the death of your
father. . . . However, the recent RIF actions in
the
regions
and the continuing ceiling and budgetary
constraints have eliminated practically any
potential
options for this office [in Washington] to
assign you to the Boston office on a permanent
basis.
In September, Randlett received another letter from Dick
requesting
her
to
report
for work in Denver on October 1, 1982.
Randlett
then
filed
a
complaint with the EEO officer in Boston,
alleging
that
Washington
officials were retaliating against her
"for having filed a previous complaint in Denver . . . which
was resolved in my favor." Randlett's new complaint named as
the
persons
who had retaliated against her Jefferson, Dick and
Crivella.
Instead
of
reporting
to
work in Denver on October 1, 1982,
Randlett arranged to use accrued leave credits to stay in
Boston for the remainder of the year. In November 1982,
Randlett's prospective supervisor in Denver, Alex Aguilar,
confirmed
the request for leave from October 1 to December 31,
1982; but the letter also said that Aguilar expected Randlett
to report for work on January 3, 1983, and that he would
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consider
any
request for further leave to be "unreasonable and
not in the best interests of our organization."
Randlett then asked Aguilar for leave-without-pay status
after December 1982. Aguilar refused, saying that Randlett's
"prolonged" absence was detrimental to his office. Randlett
then
asked
for
sick
leave. Aguilar wrote that the agency might
be
able
to
make
health-related accommodations for her in Denver
so long as she documented her ailments; but some two weeks
later Aguilar told Randlett that the documents she submitted
were not adequate. In March 1983, Randlett resigned, saying
that it was done involuntarily to prevent any "additional
harassment" from Aguilar or "any other further retaliatory
acts."
Randlett's
September 1982 complaint--directed against the
three named Washington officials--was originally rejected by
HHS on the ground that it was untimely, but this ruling was
reversed by the EEOC in 1985. Incredibly, the ensuing HHS
internal investigation lasted over seven years. In August
1992, an HHS administrative law judge denied Randlett's claim
of retaliation. His denial was sustained by the EEOC in
November 1993.
In
December
1993, Randlett filed her present complaint in
the federal district court under Title VII. The core of the
complaint
was
that
"[a]lthough HHS had full power and authority
to
assign
plaintiff a permanent position in the Boston office,
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it unreasonably refused to do so in order ultimately to force
plaintiff
to
resign."
The complaint attributed this refusal to
retaliation for Randlett's successful 1975 complaint against
the department, saying that hardship transfers were routinely
granted to individuals with hardship requests similar to or
less serious than Randlett's.
Randlett
also charged that she had been given an improper
"low satisfactory" performance rating and inadequate training
in Boston. She asked for "[r]einstatement to her position in
Boston" with back pay and benefits and reimbursement for some
health insurance premiums and out-of-pocket medical expenses.
She
also
sought
compensatory and punitive damages of $1 million
each.
After a period of discovery, HHS moved for summary
judgment.
It argued that the denial of permanent transfer was
not
an
adverse employment action under Title VII, and that the
agency
had
made
an
effort to accommodate Randlett's requests by
granting a temporary detail to Boston but that it was not
required to go further. HHS also supplied the court with
correspondenc
e and a transcript of Randlett's testimony in the
EEOC's recent investigation.
Randlett
responded
with
her own version of events and also
submitted
affidavits from HHS employees attesting that HHS did
approve
hardship
transfers with some regularity, and suggesting
that she could have been accommodated in the Boston office.
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The most dramatic affidavit was submitted by an EEOC employee
who
had
previously worked in the Denver HHS office. According
to
the
affiant, in the spring of 1982 he had been talking with
Aguilar about a GS-13 position in the Denver office and asked
if it was going to be filled permanently and if so, by whom.
The affidavit continued:
Alex Aguilar told me "That position [cannot] be
filled
permanently until the matter of Jean Randlett
is resolved, but I am going to make sure that she
does not come to Denver. We are going to put a lot
of pressure on her so she will not return to
Denver."
On June 5, 1996, the district judge issued a 29-page
memorandum
and
order
granting HHS' motion for summary judgment.
The decision dealt in different ways with Randlett's various
claims, as will appear from our own discussion. The decision
went some distance in the direction that HHS had urged in its
original
motion, holding that "rejection of Randlett's request
to
continue
to stay in Boston for personal reasons is not a[n]
adverse action cognizable by federal law."
II.
A grant of summary judgment is subject to de novo review
on appeal, and this includes any claim that the evidence made
out a material issue of fact that precludes summary judgment.
Sargent
,
108
F.3d at 6. Before addressing the central issue--
the denial of Randlett's request for a transfer to Boston--we
consider
briefly, and then put to one side, certain rulings by
the district court that require no extended treatment.
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In the district court, Randlett urged that she had been
"promised" a permanent transfer to Boston by Jefferson.
Assuming arguendo that such a "promise" might receive some
special protection, the district court carefully reviewed the
pertinent proffers of evidence, especially the documents
exchanged between Randlett and the Washington office, and
concluded that no reasonable jury could find that such a
promise had been made. Without repeating the details, which
are set forth in the district court's decision, we agree with
this ruling.
The district court also made short work of Randlett's
claim that she had received inadequate training in Boston,
saying
that
even if this were true, there was no evidence that
it was based upon a motive to retaliate against her for her
earlier complaint. "At most," the district judge ruled, "the
evidence shows that the Boston assignment was an awkwardly-
designed and temporary expedient to accommodate Randlett
pending
her
return
to
the duty station [Denver] directed by the
1981 EEOC decision." This ruling also is well supported.
The
district
court
also
rejected Randlett's claim that she
was improperly listed as a GS-12 employee in Boston, saying
that this was not an adverse employment action since Randlett
continued
to
be
paid
at
the GS-13 level. We affirm this ruling
on a narrower ground: no evidence exists that this alleged
Boston-office "error" was motivated by a desire to retaliate
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against Randlett for filing a complaint seven years before
against
a
different HHS office. Whether in some other case an
inaccurate listing could be an adverse action under Title VII
need not be pursued here.
The
central
issue is HHS' refusal to transfer Randlett to
the
Boston
office. The district court said that this was "not
a[n] adverse action cognizable by federal law," but it also
said that not even a "scintilla of evidence" supported the
claim
"that
the agency retaliated against Randlett by refusing
to
provide
a
permanent transfer to Boston for hardship reasons
or to extend her temporary detail." These are two different
reasons, one relating to law and the other to fact.
The
more
difficult
of
the two is the legal question: what
types of employer actions adverse to the employee can, where
improperly
motivated, give rise to a Title VII complaint. The
district judge, arguably supported by references in the
decisions of a few other courts, accepted HHS' argument that
the refusal of a lateral transfer to another office of the
agency does not rise to the level of an adverse employment
action compensable under Title VII--even if done for an
improper motive.
The statute itself says that an employer may not
"discriminate" against an employee or applicant "because [the
employee
or
applicant] has made a charge . . . or participated
in
any
manner" in a Title VII investigation or proceeding. 42
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U.S.C.
S
2000e-3(a).
Elsewhere, the statute lists actions that
can
constitute discrimination, specifying a refusal to hire, a
discharge, or any discriminatory treatment with respect to
"compensation,
terms,
conditions, or privileges of employment."
Id. S 2000e-2(a). Arguably, the two sections should be read
together.
Even so, "terms, conditions, or privileges" is pretty
open-ended
language. It obviously includes opportunities that
are not strictly entitlements, Hishon v. King & Spalding, 467
U.S. 69, 75-76 (1984) (promotion to partner); and a number of
cases have extended coverage to slights or indignities that
might seem evanescent, e.g., McKenzie v. Illinois Dep't of
Transp., 92 F.3d 473, 484 (7th Cir. 1996) (employee given
tedious
minor duties); Aviles-Martinez v. Monroig, 963 F.2d 2,
6 (1st Cir. 1992) (daily ridicule in clients' presence).
On occasion, disadvantageous transfers have been treated
as
potentially
within
the scope of Title VII. E.g., Collins v.
Illinois
,
830 F.2d 692, 702-04 (7th Cir. 1987) (citing cases).
The main authority cited by the district court, Haimovitz v.
United States Dep't of Justice, 720 F. Supp. 516 (W.D. Pa.
1989),
aff'd
,
902 F.2d 1560 (3d Cir. 1990), did reject a claim
where the employee had been transferred to another location;
but
while
the
opinion
is
not crystal clear, the main reason was
apparently
a
failure to show an illegal motive. Id. at 525-27.
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Here, the claim concerns a refusal to transfer, arguably
less intrusive than involuntary relocation. But Randlett's
affidavits make clear that at HHS a permanent transfer for
hardship
reasons is a common enough practice and so arguably a
"privilege"
of
employment. For Randlett, the transfer here was
doubtless as important as a promotion. Assuming an improper
motive,
it
is hard to see why denial of a hardship transfer in
this case could not be discrimination under Title VII. See
Bauman
v.
Blo
ck, 940 F.2d 1211, 1229 (9th Cir.), cert. denied,
502 U.S. 1005 (1991).
No doubt construing the statute in this manner opens the
way to whimsical claims by employees who earlier filed
complaints and are now aggrieved by slights. Possibly, there
is room for a de minimis threshold, Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996), and certainly
good reason to insist on firm evidence of improper motive by
the employer. But given the impact on Randlett, and her
affidavits about customary practice, we cannot accept the HHS
view
that
a
refusal to transfer is automatically outside Title
VII.
We turn, therefore, to the district court's alternative
ground, namely, the lack of a "scintilla of evidence" to show
retaliation.
To
make
out a retaliation claim requires not only
an
adverse
employment action and previously protected conduct,
but
also
a
colorable showing that "a causal connection existed
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between
the
protected
conduct and the adverse action." Fennell
v.
First
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
In
other
words,
the
adverse action must have been taken for the
purpose of retaliating. And to defeat summary judgment, a
plaintiff must point to some evidence of retaliation by a
pertinent decisionmaker. Id.
The
denial
of
a
permanent transfer to the Boston office is
the principal decision challenged by Randlett, and every
indication
is
that
this
decision was made by the HHS Office for
Civil
Rights
in
Washington. Randlett's request was made to the
Washington office and denied by the Washington office.
Randlett herself wrote to the Boston EEO officer a few days
after filing her complaint to say that the concern was "with
the
actions
of OCR [Office of Civil Rights] in Washington, not
Denver."
See
generally Long v. Eastfield College, 88 F.3d 300
(5th Cir. 1996).
It was thus incumbent on Randlett, to justify trial on
this
issue,
to
point
to
some evidence to show that officials in
the Washington establishment had refused a permanent transfer
to retaliate against Randlett for her 1975 complaint. See
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991),
cert.
denied, 504 U.S. 985 (1992). This need to show a
connection exists whether Randlett was seeking to make out a
prima
facie
case
or
by
independent evidence challenging the HHS
explanation as pretext and urging independent evidence of
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discrimination. Fennell, 83 F.3d at 535. The latter is the
better
perspective
since
(even before the lawsuit began) Dick's
letter did explain HHS' reasons for denying a permanent
transfer.
The
difficulty for Randlett is that there is virtually no
evidence that HHS officials in Washington acted out of a
retaliatory
motive
in
denying the permanent transfer to Boston.
Randlett's
main
argument
for inferring an improper motive--that
is, a connection to her previous complaint--is based on her
affidavits about HHS practice in granting hardship transfers.
If HHS handed out transfers as a matter of course whenever an
employee showed a hardship need, it might well be suspicious
were Randlett alone singled out for a denial.
But
in
fact
there
is
no
showing that in denying Randlett's
request,
HHS
was departing from its usual practice. Carefully
read, all that the affidavits say is that HHS often granted
hardship transfers in similar cases; there is no indication
that HHS granted them invariably and without regard to the
convenience of the agency. And in this instance HHS, in
denying
Randlett's request, explained that reductions in force
("RIFs")
and
budget
cuts
had reduced its flexibility and it was
not convenient to the agency to transfer Randlett permanently
to Boston.
Randlett's only other evidence is several affidavits
describing
reassignments and hires within the Boston office in
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or around 1982. This confirms that there were some
reassignments
(due, at least in part, to the RIFs mentioned in
Dick's letter) and at least one new hire for a GS-12 position
after Randlett's resignation. But nothing in the affidavits
shows retaliation against Randlett. At most, one might
conclude that some other mix of reassignments might have
produced a GS-13 position for Randlett, doubtless to the
disadvantage of some other employee.
Whatever inference might be drawn from any of the
affidavits
has
to
be
set
against other facts. However careless
Jefferson may have been in arranging Randlett's timely
reassignment to Denver, higher officials in Washington--who
were responsible for refusing the permanent transfer--had
helped Randlett from the start, both by securing a temporary
position in Boston and by deferring her start date in Denver.
Taking everything together, no basis exists for a jury to
conclude that the permanent transfer was denied in order to
retaliate.
Our causation analysis would be quite different if
Randlett's claim related to Aguilar's action in refusing to
grant an additional temporary delay to Randlett to permit her
to delay reporting to duty in Denver in early 1983. The tone
of
Aguilar's
alleged
remarks, quoted above, might create a jury
issue as to Aguilar's own motive in refusing Randlett's
requests to him. This is so even though, absent the remarks,
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the Denver office had good reason for wanting Randlett to
report
to
duty
(apparently, it was paying for Randlett's detail
to Boston and had to leave her permanent position unfilled).
We need not decide this issue because Randlett has not
complained of the Denver office's denial of further temporary
deferrals in her reporting date. Rather, her 1982
administrativ
e complaint, which was the condition precedent to
this lawsuit, see 42 U.S.C. S 2000e-5(f), is directed at the
Washington
officials' denial of a permanent transfer. That is
the
relief
she seeks in the district court. No claim was made
concerning
Aguilar's denial of a further temporary deferral of
her return to Denver.
The statutory regime requiring exhaustion of
administrative
remedies
itself precludes any effort by Randlett
at this late date to develop and pursue a new charge directed
against Aguilar's own conduct in refusing further deferrals.
Lattimore
v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
Nor is this some slip of the pen: everything in Randlett's
situation makes clear that the central grievance relates to
Washington's denial of a permanent transfer to Boston.
Accordingly, Aguilar's actions in Denver, whatever their
motive, would not support a trial of the only claims that
Randlett has made and preserved.
No one can view with pride HHS' record of delay in
investigating this case or fail to sympathize with Randlett's
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predicament--
a job in one city and an aging parent in another.
At oral argument, we forcefully urged the parties to seek a
settlement and asked them to use our court's settlement
program, delaying this decision until we were advised that
efforts
at
settlement had failed. It will now be obvious that
both sides would have gained through a settlement.
In sum, we affirm the decision of the district judge on
the grant of summary judgment, although our reasoning differs
in certain respects, and we decline to order costs for either
side. It appears from the briefs and oral argument that a
ministerial
issue
relating to the calculation of certain health
insurance
benefits due to Randlett remains to be resolved. We
therefore remand the case to the district court for this
limited purpose.
It is so ordered.
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