
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1410                                    THOMAS WELSH,                                Plaintiff, Appellant,                                          v.                 EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Ernest C. Hadley for appellant.            ________________            Roberta  T. Brown, Assistant  United States Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   January 18, 1994                                 ____________________                      Per  Curiam.   In this  appeal, plaintiff-appellant                      ____________            Thomas Welsh  challenges the  district court's  determination            that he had not suffered retaliation actionable under the Age            Discrimination Employment Act ("ADEA").  We affirm.                      In  1987,  plaintiff  became  coordinator  of   the            Brockton-West   Roxbury   Veterans   Administration   Medical            Center's  ("VA Medical  Center's")  Key  Club, an  outpatient            recreational therapy program.  His job classification at that            time was General  Service ("GS") level 6.   In February 1989,            believing  that he was  performing duties above  the level of            GS-6, plaintiff sought  an upgrade of his  job classification            by requesting a  "desk audit."1  The audit  was not performed            until May 1989.                      Meanwhile, in  March 1989, maintaining that  he was            being  denied  an  upgrade  because  of  age  and  disability            discrimination2, plaintiff  filed an informal  complaint with            the  Equal   Employment  Opportunity   Commission  ("EEOC").3                                            ____________________            1.  In  a desk audit,  a Personnel Specialist  interviews the            employee and  his/her supervisor and  determines (1)  whether            the employee's  job description  accurately depicts  the work            performed  by  the employee,  and  (2)  whether  the  job  is            classified at the proper GS level.            2.  Plaintiff  has  a  heart condition  and  is  a recovering            alcoholic.            3.  The charges in plaintiff's  informal complaint formed the            basis for a formal EEOC  complaint filed by plaintiff in June            1989,  and  for  plaintiff's  non-retaliation  discrimination            claims in the  instant lawsuit.   The district court  granted            defendant  summary judgment  on these  claims  in June  1991.            Plaintiff does not appeal from this ruling.                                          -2-                                          2            Plaintiff  asserts  that, as  a  result  of  his filing  this            complaint, he suffered  the following  forms of  retaliation:            (1)  an unpleasant discussion  with his  supervisor regarding            the filing of the complaint;  (2) a reassignment from the Key            Club position to  a job working in an  inpatient setting; (3)            an  unfounded  accusation  by  his  supervisor  that  he  had            misappropriated  funds   in  connection   with  a   Key  Club            Thanksgiving  dinner; (4) a reprimand from his supervisor for            a previously approved absence from an  awards dinner; and (5)            a   reduction  in  duties  prior  to  the  desk  audit,  thus            eliminating the  potential of a  status upgrade.   These five            incidents formed the basis for his retaliation claim.                      In  addition   to  granting  summary   judgment  on            plaintiff's non-retaliation discrimination  claims, see supra                                                                ___ _____            note  3,  the district  court  also  ruled,  at  the  summary            judgment  stage, that  the  first  four  of  the  above-named            incidents did not give rise  to a retaliation claim under the            ADEA.  However, the court found that the issue of whether the            reduction  in  plaintiff's  duties prior  to  the  desk audit            violated  the  ADEA's  retaliation  provision,  29  U.S.C.               623(d),4 was triable.                                              ____________________            4.  In pertinent part, 29 U.S.C.   623(d) provides:                 It   shall   be  unlawful   for   an  employer   to                 discriminate  against  any   of  his  employees  or                 applicants  for  employment  .  .  .  because  such                 individual  . .  . has  opposed  any practice  made                 unlawful by [the ADEA],  or because such individual                                         -3-                                          3                      We  consider only this  last claim to  be raised.5             Defendant Secretary argues  that a reduction in  duties could            not be an "adverse employment  action" giving rise to a claim            under Section  623(d) under  Connell v.  Bank of  Boston, 924                                         _______     _______________            F.2d 1169,  1179 (1st  Cir.), cert. denied,  111 S.  Ct. 2828                                          _____ ______            (1991).   There,  applying the  rule that  where there  is no            direct evidence of retaliation, a plaintiff must demonstrate,            inter alia, that s/he suffered an "adverse employment action"            _____ ____            in order to make out a prima facie showing of retaliation, we            said,  with respect to  that phrase, "Most  cases involving a            retaliation claim are based on an employment action which has            an adverse impact on the employee, i.e., discharge, demotion,            or failure to promote."  924 F.2d at 1179.                       The  Secretary points  to  the  letters "i.e."  and            reads into them  a ruling that  only discharge, demotion,  or            failure  to  promote  can  constitute an  adverse  employment            action within  the Act.   We do not  agree.   Concededly, not            every unpleasant  matter short  of those  listed in  Connell,                                                                 _______                                            ____________________                 . .  . has made  a charge, testified,  assisted, or                 participated  in any  manner  in an  investigation,                 proceeding, or litigation under [the ADEA].            5.  Plaintiff also  generally contends,  without explanation,            that, "unlike the plaintiff in Connell," he was harmed by the                                           _______            other alleged  instances of retaliation cited above.  We have            repeatedly  warned litigants  that issues  adverted  to in  a            perfunctory manner  and without  developed argumentation  are            deemed waived on appeal.  E.g., United States  v. Innamorati,                                      ____  _____________     __________            996 F.2d  456,  468  (1st  Cir.  1993).    Here,  plaintiff's            attempts  to distinguish  Connell with  regard  to the  other                                      _______            alleged   instances   of  discrimination   are   perfunctory.            Accordingly, we regard them as waived.                                         -4-                                          4            supra creates  a cause  of action, but  many things,  such as            _____            constant  rudeness,  conspicuous discriminatory  acts,  etc.,            could  have  an  adverse  effect  upon  employment.    Within            reasonable limits, in  order to arrive at  a determination, a            case by case review is necessary.   With respect, we take the            court's "i.e." as  an inadvertency for  "e.g.", or, at  most,            dictum far beyond  the opinion that, after  consideration, we            feel  we  do not  have  to  recognize.    We say  this  fully            realizing that, as  newly constituted panels we  are normally            bound by prior panel decisions  on point.  E.g., Broderick v.                                                       ____  _________            Roache, 996 F.2d 1294, 1298 (1st Cir. 1993).  Further support            ______            for  our  reading  of  Connell,  appears  from  that  panel's                                   _______            reference  to "most  cases" and  to  reliance upon  precedent            pointing to  incidents beyond  mere "discharge,  demotion, or            failure to promote."                      The  fact, however, that  the action taken  in this            case  could survive  a motion  for summary judgment  does not            mean   that  the  court   could  not  thereafter   weigh  it.            Plaintiff's  complaint was that  the reduction in  his duties            meant that he  would not be  eligible for an  upgrade in  his            status.  As to this claim, the court made a finding, not here            challenged,  that plaintiff would  not have received  such an            upgrade in any event.  On this basis the court's finding that            plaintiff failed  to make  a prima  facie showing of  adverse            employment action  must stand.   And, as we have  made clear,            plaintiff cannot make out  a prima facie case of  retaliation                                         -5-                                          5            without showing such  adverse action.  See Connell,  924 F.2d                                                   ___ _______            at 1179.                        Accordingly,  we  affirm   the  court's  entry   of            judgment against plaintiff on his retaliation claim.6                                            ____________________            6.  Because we affirm  the court's ruling that  plaintiff did            not  make out a prima facie  case of retaliation, we need not            reach   plaintiff's  challenge   to   the  district   court's            alternative finding regarding pretext.                                         -6-                                          6
