

                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

                             -2-                                          2

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

                             -3-                                          3

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,

                             -4-                                          4

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.  

                             -5-                                          5

          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.  

                             -6-                                          6

          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

                             -7-                                          7

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

                             -8-                                          8

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

                             -11-                                          11

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                                                                

          The  district court granted summary judgment to the

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.

                             -14-                                          14

          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) &amp;  (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  &amp;  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.                                                                      

                             -17-                                          17

                     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. &amp; 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 &amp; 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

                             -18-                                          18

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  &amp; 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

                             -20-                                          20

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

                             -21-                                          21

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

                             -22-                                          22

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 &amp; 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. &amp; 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 &amp; 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 &amp;                                                            

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  &amp; 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  &amp; 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

                              V.

            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 &amp; 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
