

               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

                            -11-                                        -11-

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 &amp; 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

                            -17-                                        -17-

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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