
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1816                                   GEORGE E. HAZEL,                                Plaintiff, Appellant,                                          v.                               U.S. POSTMASTER GENERAL,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Feinberg,* Senior Circuit Judge,                                      ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Stephen  E.  Kiley with  whom  Kiley  & Hazel  was  on  brief  for            __________________             ______________        appellant.            David  G.  Karro,  Attorney,  Appellate  Division,  United  States            ________________        Postal Service, with whom A. John  Pappalardo, United States Attorney,                                  ___________________        Gwen  R. Tyre,  Assistant  United States  Attorney, R.  Andrew German,        _____________                                       _________________        Chief   Counsel,  Appellate  Division,   and  Cynthia  J.  Hallberlin,                                                      _______________________        Attorney, Appellate  Division, United  States Postal Service,  were on        brief for appellee.                                 ____________________                                   October 14, 1993                                 ____________________        _____________________        *Of the Second Circuit, sitting by designation.                       FEINBERG, Senior Circuit Judge.  Plaintiff George E.                                 ____________________             Hazel appeals from a judgment of the United States District             Court for the District of Massachusetts, Robert E. Keeton, J.,             granting a motion by defendant-appellee Anthony M. Frank,             Postmaster General of the United States, for judgment on             partial findings pursuant to Fed. R. Civ. Proc. 52(c).  Hazel,             a former postal employee, had alleged that the Postal Service             violated his civil rights when it fired him in retaliation for             providing legal advice to another postal employee in her sex             and age discrimination claims against the Postal Service.  For             the reasons stated below, we affirm.                                           Background                                           __________                            George Hazel joined the Postal Inspection             Service in 1971.  The events giving rise to this action began             on August 27, 1984 when Hazel's immediate supervisor, John             Cinotti, gave him a "very good" evaluation only to have the             next higher supervisor, M. W. Ryan, change it to "good," with             the explanation that Cinotti had not justified the "very             good."  Hazel thought Ryan was reacting to the fact that Hazel             was representing an Inspection Service clerk who had charged             Ryan with sex and age discrimination.  Hazel thought his             suspicions were confirmed on September 5, 1984, when Ryan told             him he would be transferred from the Fraud Section, where                                            2             Hazel had been for 13 years, to the Audit Section -- despite             the fact that he had no auditing or accounting background.              Moreover, according to Hazel, audit assignments, unlike fraud             assignments, are very undesirable.                            After learning of Ryan's intention to reassign             him, Hazel contacted an Equal Employment Opportunity (EEO)             counselor with respect to the alleged employment             discrimination.  Thereafter, Ryan sent written confirmation of             the reassignment, and Hazel responded as follows:  "Since I             believe your written directive ... violates the law, I             respectfully refuse to accept the reassignment."  Ryan warned             Hazel that his letter could "be considered evidence of refusal             to obey a direct order" and gave Hazel an opportunity to obey             by moving the reporting date back from October 15 to October             18, 1984.  Instead of complying with the order, Hazel reported             for firearms training on the 18th, had lunch with a friend and             went home.                            The next day, Ryan asked Hazel if he intended             to report for his new assignment, and Hazel did not answer the             question.  Ryan then handed him a letter putting him in an             off-duty status.  When Hazel protested this decision, Ryan             replied:  "[Y]our placement in an off-duty status ... will ...             remain in effect until such time as you report for duty to             your new assignment."  Hazel testified that he never attempted             to report to the new assignment after receiving that reply.                                             3             Finally, on October 22, 1984, Ryan charged Hazel with, and             recommended removing him from the Postal Service for,              insubordination.                              The Regional Chief Inspector accepted the             recommendation, and in a letter to Hazel, dated November 8,             1984, stated:                            I find that the charge, insubordination, as                            stated in the notice of October 22, 1984, is                            fully supported by the evidence.  You were                            directed by Mr. M.W. Ryan, Inspector in Charge,                            Boston Division, to report effective October                            15, 1984 to Team Leader E.A. Jacobs for Job                            Assignment #40.  On that date, you directed a                            letter to Mr. Ryan refusing to comply with his                            directive.                                                               . . .                            On October 16, 1984, you were again ordered to                            report to Job Assignment #40 no later than                            October 18, 1984.  As of October 19, 1984, you                            had not reported as directed, so you were                            placed in a non-duty non-pay status.                                                             . . .                             The position of Postal Inspector requires the             utmost         individual loyalty, diligence and dedication in                            the undertaking of assigned duties as needs of                            the Service dictate.  Accordingly, a supported                            charge of insubordination is an extremely                            serious and grave charge which will not be                            condoned or tolerated.             The Chief Inspector removed Hazel from the Postal Service             effective November 23, 1984.  In response to another appeal by             Hazel, the Chief Inspector stated:                            Your failure to obey a direct order from the                            Inspector in Charge is intolerable.  This type                                            4                            of conduct is disruptive and undermines the                            morale of the employees in the office.                             Additionally, it is not in keeping with the                            image and professional standards expected of a                            Postal Inspector.  Based on the nature of this                            incident your placement in a non-duty non-pay                            status was necessary and appropriate.                              In January 1988, after exhausting his             administrative and EEO remedies, Hazel filed this action.  It             came to trial in June 1992, almost eight years after Hazel's             removal for insubordination.  After three days of a bench             trial, during which Hazel presented his case through the             testimony of seven witnesses including himself, defendant             Postmaster General moved for judgment on partial findings             pursuant to Fed. R. Civ. Proc. 52(c).  The district judge             stated his findings of fact and conclusions of law in open             court, granted the motion and entered judgment for defendant.              This appeal followed.                                       Discussion                                       __________                            Hazel's retaliation claim required him to show             a violation of either 29 U.S.C.   623(d), which forbids             discrimination against employees opposing age discrimination,             or 42 U.S.C.   2000e-3(a), which forbids retaliation against             employees opposing sex discrimination.  Under either statute,             Hazel's initial burden was to "establish a prima facie case                                                        ___________             sufficient to permit an inference of retaliatory motive."  The                                            5             burden placed on a plaintiff at this stage "is not onerous."              Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253             ________________________________    _______             (1981).  To state a prima facie claim of retaliation under                                 _____ _____             Title VII, the plaintiff must show: "[1] protected             participation or opposition under Title VII known by the             alleged retaliator; [2] an employment action or actions             disadvantaging persons engaged in protected activities; and             [3] a causal connection between the first two elements[,] that             is [,] a retaliatory motive playing a part in the adverse             employment actions."  Petitti v. New England Tel. & Tel. Co.,                                   _______    ___________________________             909 F.2d 28, 33 (1st Cir. 1990) (quoting Grant v. Bethlehem                                                      _____    _________             Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980)).             ___________                       Once the prima facie case is established, the burden                                _____ _____             of production, not persuasion, shifts to the defendant to             articulate a plausible, legitimate, and nondiscriminatory             justification for the employment decision.  Petitti, 909 F.2d                                                         _______             at 31.  Once the employer proffers such a justification,                         the McDonnell Douglas framework -- with its                           _________________                       presumptions and burdens -- is no longer                       relevant....the defendant's "production" (whatever                       its persuasive effect) having been made, the trier                       of fact proceeds to decide the ultimate                       question....Thus, rejection of the defendant's                       proffered reasons will permit the trier of fact to                                              ______                       infer the ultimate fact...., [but] the plaintiff at                       all times bears the "ultimate burden of persuasion."              St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993)             (emphasis in original) (citations omitted).                                            6                         The issue of retaliatory motive in an employment             discrimination case presents "a pure question of fact," and             the trial court's determination is reviewed under the clearly             erroneous standard.  See Pullman-Standard v. Swint, 456 U.S.                                  ___ ________________    _____             273, 287-88 (1982).  Under the clearly erroneous standard, the             court's inference must be affirmed if it is "plausible."              Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152             ________    ___________________________             (1st Cir. 1990).                              Judge Keeton heard the testimony of seven             witnesses including Hazel and, as the trier of fact, was             entitled to draw his own reasonable inferences as to whether             Hazel was fired for a retaliatory reason.  In his dispositive             ruling, the judge stated:                            I cannot find that the discharge was motivated                            by retaliation, or, to put it in language that                            parallels many of the precedents here, I cannot                            find that a retaliatory motive was a motivating                            factor of the discharge, even when assuming                            that the retaliatory motive was a motivating                            factor of the downgrading of the rating from                            very good to good and a motivating factor of                            the reassignment.                The judge further said that                            the plaintiff was not discharged, even by the                            plaintiff's own proof, simply because of the                            protected activity but instead was discharged,                            by the plaintiff's own proof, because of                            insubordination ..., a refusal to accept orders                            and comply with them[.]  [This] is documented                            and undisputed under the plaintiff's own                            evidence.                                              7                            On review to this court, we cannot say that             these findings of fact are clearly erroneous.  To put it             another way, Hazel's admission that he refused to report for             work and the evidence that the Postal Service fired him for             that very reason provided a "plausible" basis for the district             court's finding that retaliation is not the most likely reason             Hazel was fired.                               Hazel argues to us, as a procedural matter,             that the district court should have limited itself to             determining whether he proved a prima facie case and then                                             ___________             waited to hear the Postmaster General's evidence and Hazel's             rebuttal case.  It is true that in this type of litigation             courts generally wait until after a defendant has put on its             case to pass on the sufficiency of its nondiscriminatory             explanation.  This is because nondiscriminatory explanations             usually do not surface fully until the defendant's case.  But             here, Hazel, in his own case, introduced evidence that he was             discharged for insubordination as well as evidence purporting             to show that the insubordination charge was only a pretext for             firing him.  In this court, Hazel points to no further             evidence that he was unable to present because the district             court's procedure took him by surprise.  (Indeed, Hazel             apparently made no such claim in the district court).                               Hazel also argues to us that his refusal to             work was an activity protected by the anti-retaliation                                            8             statutes.  However, he cites no persuasive authority for the             proposition that an employee claiming discrimination can on             that basis absolutely refuse to work where his employer             directs.  On the contrary, the right to oppose discrimination             is not a right to refuse to work on account of discrimination.              We have held that a plaintiff goes "beyond the scope of             protected opposition" when he "damages the basic goals and             interests" of the employer, who has a "legitimate interest in             seeing that its employees perform their work well."  Hochstadt                                                                  _________             v. Worcester Foundation for Experimental Biology, 545 F.2d                _____________________________________________             222, 233 (1st Cir. 1976).  The district judge could accept, as             he obviously did, the judgment of the Postal Service that             "insubordination is an extremely serious and grave charge,"             that it is "disruptive and undermines the morale of the             employees in the office," that it is "not in keeping with the             image and professional standards expected of a Postal             Inspector," and that, if proved, it should "not be condoned or             tolerated."                              We are aware that the timing of Ryan's             downgrading of Hazel's evaluation and the subsequent transfer             have the smell of bureaucratic retaliation.1  Indeed, the             district judge assumed that to be so.  Moreover, we are not                                              ____________________             1              We  are  also  aware,  of  course,  that  the             Postmaster          General did not present  his case in the             district court.                                            9             unsympathetic to Hazel's plight.  After a successful career of             13 years in the Fraud Section, including responsibility for             major criminal investigations, Hazel obviously regarded his             reassignment to the Audit Section -- where his             responsibilities would have included such routine and             monotonous work as the adjustment of slip-and-fall cases up to             $5,000 -- as demeaning.  Perhaps Hazel is arguing that his             refusal to work was not insubordination because he was             constructively discharged when Ryan reassigned him.  But Hazel             could have taken the new job under protest while pursuing his             remedies.  This he failed to do.  The humiliation Hazel may             have felt in the new job is a far cry from the serious             hardship in cases where we have found constructive discharge.              See, e.g., Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir.             ___        _______________    _______             1992).                            Hazel relies on Curran v. Department of the                                            ______    _________________             Treasury, 714 F.2d 913 (9th Cir. 1983), for the proposition             ________             that an employee need not obey an improper order.  The legal             issue there was whether the mandate of 5 U.S.C.    7701(c) and             7513 compelled the Merit Systems Protection Board (the Board)             to reinstate an employee who was removed for refusing to obey             an improper order that caused serious hardship.  Putting to             one side the different remedial powers and obligations of the             Board in that case and the federal district court here, Curran                                                                     ______             is distinguishable.  It is clear that the order that the                                           10             plaintiff there refused to obey -- that he transfer from             Seattle to San Francisco -- would have imposed serious             hardships on him that could not be made good by returning him             a few years later at the end of administrative and legal             proceedings.  714 F.2d at 918.  The plaintiff apparently             persuaded the court that "the transfer would threaten his             family's financial security, interfere with his wife's             employment, and prevent his completion of a graduate degree."              714 F.2d at 916.  In contrast, Hazel's only concrete             complaints about being assigned to the Audit Section were that             audit assignments are boring (the work is "useless and             repetitive") and involve overnight travel.  Yet, the district             court, as factfinder, was not even obliged to take this claim             of inconvenience at face value, given Hazel's admission that             another employee was given an assignment to the Audit Section             because it would not require her to travel.                              ___                            Finally, even if we assume, as did the trial             court, that Hazel's reassignment and downgraded performance             evaluation were the product of impermissible retaliation in             contravention of Title VII, he cannot recover any damages             because of his failure to mitigate by reporting to work in the             new post.  And, granting equitable relief would be equally             futile.  The failure to mitigate undercuts any claim for back             pay.  As for reinstatement, we realize that our dissenting             brother suggests a remand so that the district court may                                           11             consider ordering that statutory remedy by reinstating             plaintiff to his original "very good" rating and fraud             inspector's job.  But the able district judge has already             considered this possibility by assuming that the demotion and             transfer were both unlawful and by specifically considering             whether plaintiff was entitled to "back pay or other remedies                                                         _________________             available under Title VII" (emphasis supplied).  The judge             _________________________             nevertheless chose not to grant any relief on the record             before him.  The judge certainly had discretion in this             respect, see Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,                          ______________    _______________             320-22 (1st Cir. 1989) (en banc), and, on the record before             us, we cannot say that he abused it.  Under the circumstances,             a remand would serve no useful purpose and we will therefore             not order it.  See Equitable Life Assurance Soc'y v. Porter-                            ___ ______________________________    _______             Englehart, 867 F.2d 79, 84 n.3 (1st Cir. 1989) (refusing the             _________             remedy appellant sought as "utterly pointless" because it             would leave her in no better position than she was during             litigation).                            In sum, Hazel's proof was sufficient to justify             the district judge's finding that Hazel was fired for refusing             to report to work rather than for opposing discrimination.              Under the circumstances, the district court was entitled to             enter judgment for the Postmaster General at the close of             Hazel's case.  Accordingly, the judgment of the district court             is             Affirmed.                            ________                                           12                            STAHL, Circuit Judge, dissenting.  Because I                                   _____________             disagree with the majority's reading of the record, I would             remand in order to give the district court the opportunity to             consider restoration of plaintiff's "very good" rating and             reinstatement of plaintiff to his fraud inspector's job.              Given plaintiff's refusal to comply with a reassignment which             he alleged to have been unlawful and in retaliation for             protected behavior, the district court reasoned that it need             not reach those issues.  This decision of the district court             was erroneous.  Cf. Garcia v. Lawn, 805 F.2d 1400, 1401-02                             ___ ______    ____             (9th Cir. 1986) (holding that district court was not without             power to reinstate plaintiff even though plaintiff had been             dismissed during the pendency of his case for failure to             report to an allegedly unlawful reassignment).  Accordingly,             this case should be remanded for consideration of these claims             and possible equitable relief under Title VII.                                           13
