
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1950                                  JEAN M. RANDLETT,                                Plaintiff, Appellant,                                         v.                            DONNA E. SHALALA, SECRETARY,                      DEPARTMENT OF HEALTH AND HUMAN SERVICES,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                ____________________                                       Before                                Boudin, Circuit Judge,                           Aldrich, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                ____________________            Robert Le Roux Hernandez for appellant.            Lori                 J.                    Holik,                          Assistant                                   United States Attorney, with whom Donald K.       Stern, United States Attorney, was on brief for the United States.                                ____________________                                    July 10, 1997                                ____________________                 BOUDIN, Circuit Judge.  This appeal brings to the  court            the                most                     recent chapter in a 20-year quarrel between a federal            department                       and                          its                              former employee, Jean Randlett.  It presents            an               important                         legal                              issue                                    concerning the reach of the protection            afforded by  Title VII of  the Civil Rights  Act of 1964,  42            U.S.C. S 2000e  et seq.   We hold  that Title  VII can  offer            protection  against a  retaliatory  refusal  to  transfer  an            employee,  but  that  no   evidence  existed  here  to   show            retaliation.                                         I.                 Because Randlett's claims  were resolved against her  on            summary  judgment, we  state  the  facts in  the  light  most            favorable                      to                         her.                                                           Sargen                                   t v. Tenaska, Inc., 108 F.3d 5, 6 (1st            Cir. 1997).  In 1975, Randlett worked in Denver in the Office            of Civil Rights  of the Department  of Health, Education  and            Welfare                    as                       an                         equal                               opportunity specialist with a civil service            grade  of GS-12.   She  applied for  a promotion  to a  GS-13            position                     in                        Denver                              but                                  was denied promotion in favor of another            candidate.   A few  months  later, in  August 1975,  she  was            terminated.                   Randlett  filed a  complaint with  the Equal  Employment            Opportunity                        Commission,                                   alleging discrimination based on gender            and national origin  (she is white and of European  descent).            Six                years                      later, the EEOC ruled in her favor, finding that the            record  showed  "[n]o   other  credible   reason  for   [her]                                         -2-                                         -2-            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,                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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                                         -6-                                         -6-            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,                                         -7-                                         -7-            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.                                         -8-                                         -8-            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.                                         -9-                                         -9-                 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                                        -10-                                        -10-            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 & 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.                                        -12-                                        -12-                 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                                        -13-                                        -13-            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                                        -14-                                        -14-            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                                        -15-                                        -15-            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,                                        -16-                                        -16-            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.                                        -18-                                        -18-
