Tang v. Rhode Island

• Court: Court of Appeals for the First Circuit
• Decided: December 11, 1998
• Docket: 98-1256
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


Nos. 98-1256

     98-1668



                           RHODA TANG,



                      Plaintiff, Appellant,



                                v.



     STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS AND

                MAUREEN MAIGRET AND SUSAN SWEET,

          IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,

                                

                     Defendants, Appellees.


APPEALS FROM THE UNITED STATES DISTRICT COURT

                                

                FOR THE DISTRICT OF RHODE ISLAND

                                

          [Hon. Ernest C. Torres, U.S. District Judge]


Before

                                

                     Boudin, Circuit Judge,

           Coffin and Bownes, Senior Circuit Judges.


Dennis J. Roberts, II, with whom Gabriella G. Gaal, was on

brief for appellant.

     Rebecca Tedford Partington, Assistant Attorney General, for

appellees.


December 9, 1998


COFFIN, Senior Circuit Judge.  Plaintiff-appellant Rhoda

Tang ("Tang"), an Asian-American employee of the Rhode Island

Department of Elderly Affairs ("Department"), filed a complaint

against the Department alleging racial and gender discrimination,

harassment and retaliation.  During the course of litigation, the

district court excluded certain evidence, granted judgment as a

matter of law for the Department, and granted attorney's fees to

the Department.  Tang appeals each of these decisions.  Because she

has failed to show that the district court's rulings on evidence

and judgment as a matter of law were erroneous, we affirm.  We,

however, remand the attorney's fee decision for clarification.

                          I. Background

     During the decade preceding this litigation, Tang,

individually and in her role as president of the local union, filed

a series of grievances against the Department.  One such grievance,

filed in 1989 after the Department discharged her, went to an

arbitration hearing in May 1991.  During that hearing, the parties

agreed to settle the grievance by reinstating Tang and had the

stipulated settlement entered as the arbitrator's award.

     Several years later, Tang filed another grievance, this

time claiming racial and gender discrimination as well as

retaliation for actions occurring before the 1991 hearing date. 

The Department moved to dismiss the complaint based on the res

judicata effect of the stipulated arbitration award.  Judge Pettine

found that he could not decide the issue on the basis of the record

at the time, and consequently denied the motion.  During the course

of that opinion, the court noted that at a recent conference the

parties had discussed the admissibility of evidence underlying the

1989 grievance.  Although the parties had not briefed the

evidentiary issue, Judge Pettine stated that "evidence of [Tang's

1989] discharge will be admissible at trial" whether or not Tang's

claim could be based on the earlier termination.

     Defendants subsequently filed an interlocutory appeal on

grounds not relevant here.  By the time the action was remanded to

the district court, Judge Pettine had retired, and the case had

been assigned to Judge Torres.

     Based on the statement in Judge Pettine's opinion, Tang

sought to introduce evidence underlying her 1989 discharge at

trial.  Judge Torres found that the existence of the grievance was

relevant to Tang's retaliation claim, but the facts underlying it

were not because it had been resolved.  Judge Torres therefore

ruled that Tang could introduce the fact that she had filed a

grievance but not the details of it.

     After the close of the plaintiff's case, Judge Torres

granted judgment as a matter of law in favor of the Department.  He

ruled that Tang had presented no evidence that would support her

claims, and, in fact, the evidence contradicted her allegations.

     The Department then filed a motion for attorney's fees

under 42 U.S.C.  1988.  Reiterating that the complaint was based

on "a number of minor perceived slights" and that there was

"absolutely no evidence" that the slights were race or gender-based,

Judge Torres granted the Department's motion for fees.

                          II. Discussion

A. Admission of Pre-1991 Evidence

     Tang claims that Judge Torres erred in excluding the pre-

1991 evidence because Judge Pettine's ruling that the evidence

would be admissible was the law of the case.  Whether the law of

the case doctrine bars subsequent litigation of a claim is an issue

of law subject to plenary review by this court.  See Dopp v.

Pritzker, 38 F.3d 1239, 1245 (1st Cir. 1994). 

     Tang's reliance on the law of the case doctrine is

misplaced.  As we recently said, that doctrine both prevents a

party from relitigating an issue decided by a lower court and

unchallenged on appeal, and requires a lower court to comply with

a superior court's instructions on remand.  See Field v. Mans, 157

F.3d 35, --, 1998 WL 696000, at *4-5 (1st Cir. 1998).  The doctrine

does not preclude all reconsideration of an issue already settled. 

See Bethlehem Steel Export Corp. v. Redondo Constr. Corp., 140 F.3d

319, 321 (1st Cir. 1998).  "Interlocutory orders, including denials

of motions to dismiss, remain open to trial court reconsideration,

and do not constitute the law of the case."  Perez-Ruiz v.

Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).  

     At the time of Judge Pettine's comments, the parties had

not briefed whether the evidence was admissible; the Department had

made a motion to dismiss the complaint.  Even if Judge Pettine's

comments constituted a ruling on admissibility, that ruling was

interlocutory and subject to reconsideration.  The fact that the

issue was reconsidered by Judge Torres, rather than Judge Pettine,

is of no moment.  See United States v. O'Keefe, 128 F.3d 885, 891

(5th Cir. 1997) ("[A] successor judge has the same discretion to

reconsider an order as would the first judge.").  The law of the

case is simply not implicated in Judge Torres's ruling on the

admissibility of evidence.

B. Judgment as a Matter of Law

     Tang also alleges that the district court erroneously

granted judgment as a matter of law in favor of the Department on

her First Amendment freedom of speech claim.  We review the

district court's decision de novo, taking the facts in the light

most favorable to Tang.  See Russo v. Baxter Healthcare Corp., 140

F.3d 6, 7-8 (1st Cir. 1998).  We may affirm the judgment only if

there "is no legally sufficient evidentiary basis for a reasonable

jury to find for [her]."  Fed. R. Civ. P. 50(a).  Tang must provide

"more than a mere scintilla of evidence and may not rely on

conjecture or speculation to justify the submission of an issue to

the jury."  Russo, 140 F.3d at 7-8 (internal quotation marks

omitted).

     Tang claims the Department violated her First Amendment

free speech rights by retaliating against her for filing union

grievances, both on her own behalf and in her role as president of

the union. 

     The First Amendment guarantees every citizen the right

"to petition the Government for a redress of grievances."  U.S.

Const. amend. I.  Tang does not lose this right because she has

been employed by the government.  See Connick v. Myers, 461 U.S.

138, 140 (1983).  Nevertheless, absolute First Amendment protection

is not accorded to any grievance a public employee files against an

employer, without regard to content.   If it did, anything she said

in the Department "would plant the seed of a constitutional case." 

Id. at 149.

     Instead, we employ a three part test to determine whether

Tang has an actionable First Amendment freedom of speech claim. 

First, the court must determine whether Tang made her statements

"as a citizen upon matters of public concern."  Id. at 147.  If the

speech involved matters not of public concern, "but instead . . .

of personal interest, absent the most unusual circumstances, a

federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency allegedly

in reaction to the employee's behavior."  Id.  Second, the court

must weigh the strength of the employee's and the public's First

Amendment interests against the government's interest in the

efficient performance of the workplace.  See Pickering v. Board of

Educ., 391 U.S. 563, 568 (1968).  Third, if the employee's and the

public's First Amendment interests outweigh a legitimate

governmental interest in curbing the employee's speech, Tang must

show that the protected expression was a substantial or motivating

factor in an adverse employment action.  See O'Connor v. Steeves,

994 F.2d 905, 913 (1st Cir. 1993).

     Tang's claims fail at the first step because she has not

demonstrated that her speech involved any public interest.  In

assessing whether Tang's speech implicates public concerns, we

analyze "the content, form, and context of [the speech], as

revealed by the whole record."  Connick, 461 U.S. at 147-48.

     Having done so, we agree with the district court that

Tang has failed to develop a viable First Amendment claim.  Tang's

brief on appeal notes that she filed many grievances regarding

employment practices, but fails to provide any explicit description

of their content, form, or context.  Nor does a review of the

record below shed any further light on the nature and circumstances

of the several dozen grievances Tang filed.

     The record, at best, permits speculation that the

grievances underlying her First Amendment claim were similar to the

six alleged acts of harassment and retaliation, none of which,

individually or together, involved public concerns.  The first

such act occurred on March 4, 1994, when Tang was informed that her

position was to be abolished due to budget cuts.  She was placed on

administrative leave with pay, and informed that she had the right

to "bump" another union employee with less seniority.  Several days

later, the government realized that Tang's position could not be

abolished, rescinded the March 4 notice, and reinstated Tang to her

previous position.  In essence, then, Tang's first complaint

involves the fact that she was erroneously placed on administrative

leave with pay for a few days.  The second instance involved

relocating her workspace from the third floor to the first floor,

and sometime later to the second.  Third, she complained that a

filing cabinet was moved to a different floor from her workspace

and placed alongside other filing cabinets.  Fourth, she alleges

that she was instructed to take her phone calls at her own desk,

not elsewhere in the department.  Fifth, she claims she was

harassed and retaliated against when her coworker repeatedly asked

her when she would no longer need a computer they shared.  Finally,

the sixth alleged act of harassment and retaliation involved the

placement of a photocopier near the shared computer.

     None of these matters constitutes an issue of public

concern; they are all individual personal complaints about working

conditions.  The Department retains the power to fashion an

appropriate response to these issues in the workplace.  "[T]he

First Amendment does not require a public office to be run as a

roundtable for employee complaints over internal office affairs." 

Connick, 461 U.S. at 149.  The district court appropriately granted

judgment as a matter of law on Tang's First Amendment claim.

C. Attorney's Fees

     Title VII and  1988 provide the court with the power to

award attorney's fees to prevailing parties in employment

discrimination and civil rights actions, respectively.  See 42

U.S.C.  2000e-5(k); 42 U.S.C.  1988.  Although courts are most

often faced with motions for attorney's fees by prevailing

plaintiffs, the statutes empower courts to grant fee requests by

whichever party prevails.  While decisions to grant defendants

their fees are, and should be, rare, "a district court may in its

discretion award attorney's fees to a prevailing defendant . . .

upon a finding that the plaintiff's action was frivolous,

unreasonable, or without foundation, even though not brought in

subjective bad faith."  Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 421 (1978).  In determining whether this standard has

been met, the court must assess the claim at the time the complaint

was filed, and must avoid the post-hoc reasoning that, because the

plaintiff did not ultimately prevail, the claim must have been

frivolous, unreasonable or without foundation.  See Andrade v.

Jamestown Hous. Auth., 82 F.3d 1179, 1192 (1st Cir. 1996) (citing

Christiansburg, 434 U.S. at 421-22).   

     After considerable deliberation, the district court

reluctantly granted the Department's motion for attorney's fees on

the ground that the action was frivolous.  We review its decision

for abuse of discretion.  See Casa Marie Hogar Geriatrico, Inc. v.

Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994).  Under this

standard, we may not simply substitute our judgment for that of the

district court; we will reverse only if we are left with "a

definite and firm conviction that the court below committed a clear

error of judgment."  Schubert v. Nissan Motor Corp. in U.S.A., 148

F.3d 25, 30 (1st Cir. 1998).

     Our review of the trial transcript and other record

materials persuades us that the district court's finding that the

action was frivolous was defensible.  As the court correctly

concluded, there were two hurdles Tang was unable to surmount,

namely an actual injury, and causation between that injury and

race, gender or retaliation.  Our discussion above demonstrates

that Tang's supposed injury amounts to no more than personal

displeasure with minor changes or inconveniences in her working

situation.  Individually and collectively, any allegation that Tang

was injured by these incidents, much less suffered the adverse

employment action required for Title VII liability, is frivolous,

unreasonable and groundless.

     Similarly, there was no evidence that any of the alleged

actions were based on her race or gender or were done in

retaliation for filing union grievances.  For instance, when her

position was mistakenly abolished, three other employees' positions

also were eliminated.  Two were white males and one was a white

female.  Similarly, a number of the incidents involved interactions

with other union employees.  A claim that other union employees

retaliated against Tang for her filing grievances on behalf of the

union is transparently meritless.

     Rather than focusing on the strength of her claims, Tang

argues that she should be insulated from paying the Department's

attorney's fees for two reasons: 1) she relied on her lawyer to

determine how to pursue the claim; and 2) on an earlier occasion

she had received a letter from the Rhode Island Commission for

Human Rights ("RICHR") suggesting "probable cause" to find

discrimination had occurred.  Neither of these arguments

undermines the district court's decision.  As a sister circuit has

succinctly stated:

     The proper test for [an attorney's fee award

     to a defendant] is whether the claim itself is

     clearly meritless. . . . [I]f a claim is

     groundless, the mere fact that the plaintiff

     relies on his attorney's erroneous contrary

     advice does not relieve him of liability.



Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir. 1984).    Whether or

not Tang's reliance on her attorney's judgment was misplaced, she

is legally responsible for the filing of the action.  See Prate v.

Freedman, 583 F.2d 42, 48 (2d Cir. 1978).  See also Baker v.

Alderman, 158 F.3d 516, ---, 1998 WL 726667, at *7 (11th Cir. Oct.

19, 1998) ("In deciding whether to assess attorney's fees against

a Title VII plaintiff, a court should not consider the plaintiff's

counsel's role in filing or maintenance of a frivolous, groundless,

or unreasonable claim, or the plaintiff's apparent lack of personal

fault.").

     Tang also relies on the fact that on an earlier occasion

she received a letter from the RICHR finding "probable cause" to

believe discrimination had occurred.  However, that letter involved

the 1989 discharge, and Tang's own complaint admitted that, as a

result of the 1991 stipulated arbitration award, she voluntarily

withdrew her charge of discrimination regarding that discharge. 

The fact that the RICHR had found probable cause in a charge she

subsequently agreed to withdraw is irrelevant to determining

whether the current action was frivolous, unreasonable, or without

foundation.

     In essence, Tang's argument is that she filed the claim

in good faith.  Although finding bad faith makes a fee award to the

defendant more likely, it is not a prerequisite.  See Local 285,

Service Employees Int'l Union v. Nonotuck Resource Assoc., Inc., 64

F.3d 735, 737 (1st Cir. 1995).  Nor is good faith a defense to such

a claim.  See Independent Federation of Flight Attendants v. Zipes,

491 U.S. 754, 759 (1989) ("the prevailing defendant could be

awarded fees . . . against the plaintiff whose suit was brought in

good faith, but only 'upon a finding that the plaintiff's action

was frivolous, unreasonable, or without foundation.'").

     Although we have found that the district court's

determination that the action was frivolous is supported, our

inquiry is not over.  The transcript of the argument on the

attorney's fee motion indicates that the district court was

troubled with the prospect of awarding defendants their fees, and

found the decision to do so "distasteful."  Nevertheless, the court

said the defendants were "entitled" to attorney's fees because the

action was frivolous.  

     Because the district court quoted the same language in a

prior similar case, see Pontarelli v. Stone, 781 F. Supp. 114, 126

(D.R.I. 1992), we believe that the term "entitled" comes from our

own opinion in Cloutier v. Town of Epping, 714 F.2d 1184, 1193 (1st

Cir. 1983), in which we said "[d]efendants are entitled to

attorneys' fees under section 1988 only when a court finds that the

plaintiff's claim was frivolous, unreasonable, or groundless."

(internal quotations omitted and emphasis added).  The word

"entitle" embraces both the acknowledgment of a right and the

affording of a basis for making a claim.  See Random House

Dictionary 649 (2d ed. unabridged 1987).  See also Webster's Third

New International Dictionary 758 (1981) ("to give a right or legal

title to" and "furnish with proper grounds for seeking or claiming

something").  The latter meaning is the pertinent one here.  In

using "entitled," we did not intend to require district courts to

grant fee requests once frivolity has been established.  Rather, we

intended to state that the finding of frivolity was a necessary

prerequisite.  Notwithstanding such a finding, the district court

still retains discretion to deny or reduce fee requests after

considering all the nuances of a particular case.  See Andrade, 82

F.3d at 1193 (having "calculated the lodestar for a prevailing

defendant, the district court may deny or reduce that amount after

considering the plaintiff's financial condition.").

     It is not clear to us whether the district court

recognized its continued discretion.  The transcript of the

attorney's fee motion hearing contains a number of ambiguous

comments by both parties and the court that could be interpreted to

the contrary.  The Department argued that the issue was an "all or

nothing proposition"; the court could award the specific amount

requested, or nothing at all.  Tang's attorney parroted the

Department's standard, and did not highlight the district court's

wide discretion even if the action were frivolous.  In granting the

Department's fee request, the court noted it was troubled by the

fact that it was "required to pass on a request for attorney's fees

by a large institution such as a state, and the plaintiff is, as

usually is the case, just a working person."  In going on to

describe its duty the court said that the task was simple: to

determine whether the action was frivolous.

     Although the record permits the decision made by the

district court, we are not sure whether the court actually

exercised its discretion in so ruling.  The fact that it said the

defendants were "entitled" to the award, as "distasteful" as it might

have been, suggests that the court believed no discretion was

permitted.  Because the court had a wide range of options

available, we remand to ensure that the court has the opportunity

to utilize its discretion fully.  We leave to the district court's

discretion as well what steps to take in issuing a new judgment,

noting only the Supreme Court's warning that attorney's fee motions

"should not result in a second major litigation."  Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983).

     Accordingly, the judgment of the district court is

affirmed in part, vacated in part, and remanded for further action

consistent with this opinion.  Appellee may receive half its costs.