
USCA1 Opinion

	




          May 13, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2302                                 PATRICIA L. LeFEVRE,                                Plaintiff, Appellant,                                          v.                                     JESSE BROWN,                  SECRETARY OF THE DEPARTMENT OF VETERANS' AFFAIRS,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Gregory P. Piccirilli with whom Sciacca  & Piccirilli was on brief            _____________________           _____________________        for appellant.            Sheldon Whitehouse for the United States.            __________________                                 ____________________                                 ____________________                 Per  Curiam.     After  exhausting  her   administrative                 ___________            remedies, Patricia  LeFevre filed suit in  the district court            seeking damages  and injunctive relief  against her employer,            the  United  States  Department  of  Veterans'  Affairs,  for            alleged gender discrimination in violation  of Title VII.  42            U.S.C.    2000e-16(c).  She  claimed that  she was  initially            denied  relocation benefits  provided to  comparably situated            male  employees,   and  that  when  she   complained  to  her            supervisor she was assigned  to a lesser position at  another            office.  An additional claim of age discrimination, 29 U.S.C.              633a(c), was withdrawn at trial and is no longer at issue.                               LeFevre  presented her  claims of  gender discrimination            and retaliation to a jury  in October 1995.  At the  close of            LeFevre's evidence, the district judge in an opinion from the            bench granted  judgment as  a matter of  law in favor  of the            government  on  the  gender  discrimination  and  retaliation            claims.  Fed.  R. Civ. P. 50(a).  This  appeal followed.  The            only  issue on appeal is  whether the evidence,  taken in the            light most  favorable to  LeFevre, would permit  a reasonable            jury to decide in her favor,  and our review on that issue is            de  novo.  Gibson v. City of  Cranston, 37 F.3d 731, 735 (1st            ________   ______    _________________            Cir. 1994).                 To summarize  the evidence, LeFevre was  working for the            Veterans' Administration in  Texas in early  1990.  In  March                                         -2-                                         -2-            1990, she applied for  an advertised management position with            a VA office in  Providence, Rhode Island.  The  VA's internal            form authorizing  the position specified  that no  relocation            expenses  were  authorized;  but  this  restriction  was  not            mentioned  in the  advertisement itself.   At  trial, LeFevre            testified  that during  an  interview for  the  job with  the            Providence Regional Manager Clyde  Waite, Waite told her that            she would be  paid for  the expense of  moving her  household            goods.   Waite testified he  told LeFevre that  no relocation            benefits  were available but that  he later told  her that he            might be able  to get reimbursement for moving  her household            goods, which in fact he did.                   After LeFevre  began working in Providence,  she learned            that two men hired for similar positions had received further            benefits  such  as  reimbursement  for  lodging  and  mileage            expenses,  a per diem allowance,  and a home equity purchase.            LeFevre told  Waite  that she  believed she  was entitled  to            these benefits, but Waite again said that no further benefits            were available.   LeFevre  complained to her  congressman and            thereafter  a VA official in Washington ruled that the denial            of  benefits was  due  to a  misinterpretation of  government            regulations   and   that  LeFevre   was   entitled   to  full            reimbursement.  LeFevre eventually  was paid over $61,000 for            expenses relating to her move.                                           -3-                                         -3-                 Shortly after LeFevre told Waite that she was contacting            her  congressman, LeFevre was  transferred from Providence to            Cranston, R.I, to another VA position, apparently one with no            management  responsibility.   LeFevre contended  that Waite's            motive  was   to  retaliate   against  her  because   of  her            complaints.   Waite testified that the  transfer stemmed from            an   ongoing  appraisal   of  LeFevre's   position  and   job            performance that had begun long  before she raised the  issue            of relocation expenses.                  Against  this background,  we  agree with  the  district            court  that LeFevre  did  not present  evidence permitting  a            reasonable  jury  to conclude  that  gender  bias caused  the            original  alleged disparity  in  treatment  as to  relocation            expenses.  LeFevre's burden  was defined by McDonnell Douglas                                                        _________________            Corp. v.  Green, 411 U.S. 792 (1973).   There was no specific            _____     _____            evidence of  discriminatory intent, but to  establish a prima                                                                    _____            facie case it was enough  for LeFevre to show that she  was a            _____            woman and that men, apparently similarly situated, were given            more favorable treatment.  Id. at 802.  This LeFevre did.                                         ___                 But  it was  then  open to  the  defense to  respond  by            showing a non-discriminatory reason for the action.  411 U.S.            at  802-03.   The  government  did this  by  introducing into            evidence the VA's "request  for personnel action"; this form,            authorizing  the  advertising  of  the  position,  explicitly            stated that  "no relocation expenses are  authorized."  Waite                                         -4-                                         -4-            testified that this document  was prepared before the  VA had            any notion whether the successful applicant would be a man or            woman.  On  its face, the document provides a  reason for the            decision  to deny  relocation  benefits that  was not  gender            based.                          We  are now told that because  LeFevre was relocated for            the convenience  of the government, she  could not rightfully            be denied relocation benefits.   But it does not  matter that            the  government's original reason  for denying benefits (lack            of  authorization) was  based  on a  misunderstanding of  the            regulations; under Title VII  the employer has a right  to be            wrong  so   long  as   the  decision   was  not   tainted  by            discrimination.   Pollard  v. Rea Magnet  Wire Co.,  824 F.2d                              _______     ____________________            557, 559  (7th Cir.) ("reasons honestly  described but poorly            founded" represent bad judgment, not  pretext), cert. denied,                                                            ____________            484 U.S. 977 (1987).                 LeFevre  was   entitled  to  offer   evidence  that  the            government's explanation was  pretext, for example,  that the            explanation had been made up after the fact.  LeFevre did not            object  at trial to the authenticity of the document, but she            does  offer on  appeal a  host of  arguments to  suggest that            neither  the  document nor  Waite's  testimony  about it  was            reliable.   She  points  out, for  instance,  that while  the            authorizing document purportedly denied  relocation benefits,                                         -5-                                         -5-            the   public  advertisement  said  nothing  about  relocation            benefits one way or the other.                 How  far  LeFevre  developed  these  arguments  in   the            district court is not entirely clear, but it does not matter.            Taking  them all  together, they  simply would  not permit  a            reasonable jury  to conclude--as LeFevre now  urges--that the            document was  altered  later  or is  in  some  other  respect            inauthentic.  Thus, the public advertisement turns  out to be            a  government  form in  which there  is  no separate  box for            describing   relocation  benefits.     The   other  inference            arguments  are  no  stronger,  whether  taken  separately  or            together.                 LeFevre's other main contention  is that the document is            of no consequence because  Waite did not actually rely  on it            in  denying the  relocation  benefits.   In support,  LeFevre            argues  that  she was  initially  told  by  Waite  that  some                                                                     ____            relocation benefits would be provided, and that  subsequently            the reason given for denying full benefits was that she was a            "new hire."  We  agree that an employer  cannot automatically            escape   liability   by   exploiting    a   nondiscriminatory            justification on which it did not actually rely.  McKennon v.                                                              ________            Nashville Banner Pub. Co., 115 S. Ct. 879, 885 (1995).              _________________________                   But  any  apparent  inconsistency   between  LeFevre's            version of events and the government's proffered reason--that            the  benefits  were  not  authorized--fades  when  one  looks                                         -6-                                         -6-            carefully at the  testimony.   Waite testified  that he  told            LeFevre in the initial  interview that no relocation benefits            were  authorized, but  that in  a subsequent  conversation he            said he "would  check with the  central office" to see  if he            could get reimbursement for the  household goods.  He further            testified  that he  contacted a  superior in  Washington, Dr.            Blank, who authorized expenses for moving household goods.                                 Waite's  detailed account  of  his effort  to secure  an            exception  is consistent  with  his initial  reliance on  the            personnel document  that said  no  expenses were  authorized.            And  at the  district court  hearing on  the Rule  50 motion,            LeFevre's counsel conceded that LeFevre initially was told no            relocation  expenses  were  authorized.    LeFevre's  general            assertion  at  trial--that  Waite  told  her  she  would  get            relocation  expense for  household  goods--was  apparently  a            compressed version of the account given by Waite.                  As  for the  "new hire"  justification for  denying full            benefits, Waite conceded that  this was one of  reasons later            given  to  LeFevre.    But  he  explained  that  this  reason            originated  not with  him but  with a  VA personnel  officer.            Waite testified  that he  had  no personal  knowledge of  the            basis  for  the  "new  hire"  justification  and  was  simply            deferring to the expertise of the personnel officer.   Again,            this testimony was uncontradicted.  Title VII offers remedies                                         -7-                                         -7-            only  for discrimination  and not  for bureaucratic  error or            confusion.     LeFevre's retaliation claim might or might not            have more merit  than her gender discrimination  claim.  Even            though  the original  denial of  relocation benefits  was not            shown to be gender based, the statute independently prohibits            an employer  from taking  adverse action against  an employee            because of the fact that the employee is pursuing a Title VII            claim.   42 U.S.C.   2000e-3.   In this case,  there is doubt            whether  the  record would  permit  an  inference that  Waite            engaged in retaliation, there being very little evidence that            Waite  knew  at the  time of  the  transfer that  LeFevre was            claiming gender discrimination.                 But  we need not discuss the evidence at length, or rule            upon the  issue, because on  appeal LeFevre makes  no serious            attempt to  develop the retaliation charge  as an independent            claim for the jury.  We normally do not address arguments not            developed  on appeal.   Argencourt v. United  States, 78 F.3d                                    __________    ______________            14, 16  n.1  (1st Cir.  1996).   Given  the  thinness of  the            evidence as to retaliation,  there is certainly no indication            of plain error.                 Affirmed.                 ________                                         -8-                                         -8-
