
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-2050                                 VINCENT DeNOVELLIS,                                Plaintiff, Appellant,                                          v.              DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jodie Grossman, with whom ALEF, Inc., was on brief for appellant.            ______________            __________            George B. Henderson, II, Assistant United States Attorney, with            _______________________        whom Donald K. Stern, United States Attorney, was on brief for             _______________        appellee.                                 ____________________                                  September 2, 1997                                 ____________________                      BOWNES,  Senior Circuit  Judge.   Plaintiff Vincent                      BOWNES,  Senior Circuit  Judge.                               _____________________            DeNovellis   brought   this    action   alleging   employment            discrimination  under Title  VII of the  Civil Rights  Act of            1964,  42  U.S.C.     2000e   et  seq.,  and  under  the  Age                                          ________            Discrimination  in Employment Act (ADEA), 29  U.S.C.   621 et                                                                       __            seq.,  against  his  employer, the  Secretary  of  the United            ____            States  Department of Health  and Human  Services (HHS).   He            alleged that he was discriminated against on the basis of his            race, national origin, and  age, in his work  assignments, in            denials of promotions and awards, and in being subjected to a            hostile work environment.  The district court granted summary            judgment to the defendant.  We affirm.                                          I.                                       A. Facts                                          _____                      Viewed in the light most favorable to the nonmoving            party (DeNovellis) and  drawing all reasonable inferences  in            his favor,  the following facts are treated as undisputed for            purposes of the motion for summary judgment.  DeNovellis is a            white male of Italian descent.  He was sixty-six years old at            the time he filed this action in 1994.                        From  1979  to  1991 DeNovellis  served  as  Deputy            Regional Administrator (DRA) of the Boston Regional Office of            Human  Development Services  (HDS), which  was  part of  HHS.            DeNovellis's   position   was   eliminated   in   an   agency            reorganization  that occurred in  the spring of  1991.  After                                         -2-                                          2            some  months "in limbo," in the form of temporary assignments            to  "meaningless" positions,  DeNovellis  became the  program            manager of the Aid to Families with Dependent Children (AFDC)            program  within   the  recently  formed   Administration  for            Children  and  Families  (ACF).    His  civil  service  grade            remained the same:  GS-14.                        Until the reorganization,  DeNovellis's supervisor,            A.  Kenton Williams, was  the Regional Administrator  (RA) of            HDS.  Williams was a black male of the age of fifty-five when            this action  was filed.   There were  racial tensions  in the            office.   Williams  often spoke  out  against the  "insidious            racism  that  exists  in  our  society,"  and,  according  to            DeNovellis,  "would try to justify the behavior and reactions            of  black staff persons, who having  been subjected to racial            discrimination  over  the  years,  reacted differently  under            certain circumstances."  Williams also wrote a  letter to the            editor  of the  Boston Globe  commenting  on the  "tremendous                            ____________            pressures" faced by  black executives.  These  comments about            the  inequities  suffered  by  blacks  made  DeNovellis  feel            uncomfortable.                       There were  also ethnic  and race-related  comments            around the  office that  Williams condoned.   Members  of the            staff would say things like  "Vinnie, why don't you have your            people (Mafia) in  the North  End take care  of them."   (The            North End is a largely Italian neighborhood of Boston.)  Both                                         -3-                                          3            Williams and a black friend  of his, St. Clair Phillips, made            negative comments about  DeNovellis's ethnicity.   And  staff            members made general references to "you whites" in Williams's            presence.                      Williams  and  DeNovellis   also  had  work-related            conflicts.   Part  of DeNovellis's  job  as DRA  was to  take            charge  of the regional  activities during the  RA's absence.            Williams   was  often  absent  from  the  office  and  became            concerned that DeNovellis was signing  so much correspondence            on Williams's behalf that it would highlight the frequency of            his absences.   For this reason, Williams  ordered DeNovellis            in 1989 to stop signing letters on his behalf.                      In 1989 and  1990, other government administrators,            including   Williams's  supervisor   in  Washington,   Pamela            Coughlin,  who was white,  told Williams that  DeNovellis was            spreading negative comments about Williams.  On more than one            occasion, Williams also  had to intervene in  heated disputes            that DeNovellis  had with  other people in  the office.   One            such incident  pertained to  the distribution  of space,  and            another concerned  whether a  minority student  (who did  not            report to DeNovellis) had been absent from work.                      In 1990,  certain federal employees were  given the            opportunity  to  choose  early  retirement.   DeNovellis  was            eligible  to retire but rejected  the offer.  Several people,                                         -4-                                          4            including  Williams and  two  of  his  black  friends,  urged            DeNovellis to take this opportunity and retire.                      The   heart   of  DeNovellis's   complaint   is  an            assignment  to  a  temporary  "detail"  to  an "unestablished            position" in the Office of Fiscal Operations (OFO) in October            1990.   Williams  claims  he was  instructed  to  order  this            reassignment   by    Coughlin,   his    (white)   supervisor.            Nevertheless,  Williams now  admits that  the  detail was  "a            sham," and was  concocted in  part because  Williams did  not            want  DeNovellis to  be  his  deputy.   On  October 9,  1990,            Williams removed DeNovellis  from the order of  succession to            act as RA.                      DeNovellis suffered no diminution in grade, pay, or            benefits during the detail.  He worked under  the supervision            of  Williams's friend,  St. Clair  Phillips,  who was  black.            Officially,   DeNovellis   was  responsible   for   financial            activities, for which he had  no training or capability.  For            the  first month  and a  half, he  "performed the  same (DRA)            duties under  a new  supervisor."  In  mid-November, the  new            supervisor,  Phillips,  asked  Williams  to  end  the  detail            because DeNovellis did not have the background to perform the            OFO work and he  was refusing to perform his old  DRA duties.            Williams refused.   The detail was due to  expire in February            1991 but, upon Williams's request, was extended through March            31, 1991.                                           -5-                                          5                      On  March   8,  1991,   DeNovellis  filed   an  EEO            complaint,  alleging   age,   race,   and   national   origin            discrimination   in   assignment  of   duties,   awards,  and            reassignment.  On April 11,  three days after the EEO officer            interviewed Williams,  Williams filed  forms requesting  that            DeNovellis's position be switched with that of Paul Kelley, a            black  male who  was a  friend of  Williams's  and who  was a            supervisory  accountant in  OFO.    According to  DeNovellis,            Williams's purpose in making this request  was to protect the            grades of Phillips and Kelley, both black and both friends of            his, in  an impending  classification review.   However,  the            classification  review and the proposed "job swap" were never            carried out, overtaken  by the agency's restructuring  in the            spring of 1991.                      Around  the  same  time  that DeNovellis's  initial            detail expired  at the  end of March  1991, HHS  underwent an            internal  restructuring.   The former  HDS  and another  sub-            agency of HHS, the Family Support Administration, were merged            into  a new  entity,  the  Administration  for  Children  and            Families (ACF).   The  restructuring took  several months  to            effectuate.  During the transition, DeNovellis maintained his            title of DRA of HDS and carried out some tasks of  the Deputy            position, but he received no official assignments; as before,            people came to him for information.                                           -6-                                          6                      In  April or May 1991, Hugh Galligan, a white male,            was appointed Acting  Regional Administrator of the  new ACF;            he appointed Williams as his Deputy.  By May, Williams was no            longer in charge  of the Boston office.   The appointments of            Galligan and Williams were finalized on August 23, 1991.  Two            days  later,  DeNovellis's  position   was  "realigned";  his            official title  remained  DRA of  HDS  (even though  HDS  was            phasing out) but this was now within the new ACF.  The result            was that Williams was DRA of ACF, and DeNovellis retained the            job  title "DRA" but  remained unassigned in  the new agency.            His grade remained unchanged throughout this period.                      In   December  1991  Williams  left  Boston  for  a            position  in Washington,  D.C.    Galligan  then  transferred            Phillips, who had  been the head of OFO of the new agency, to            the DRA position at  the new agency.  Because  Phillips was a            GS-15 and  the new  DRA opening was  a GS-15,  Galligan could            transfer  Phillips  laterally  into  the  position without  a            competitive search.  Since  DeNovellis was a GS-14,  he could            not have been promoted to Williams's former position unless a            job  vacancy announcement  had been  made  and a  competitive            search  performed.   There is no  evidence that  Galligan was            precluded  from instituting  such  a  search and  considering            DeNovellis for the position.                      In May 1992  DeNovellis was reassigned from  DRA of            the Office of Family Security  (OFS) in the new agency, to  a                                         -7-                                          7            supervisory  position as  program manager  in  the same  OFS.            This  was not part of the management  team of the new agency.            DeNovellis  was  the  last person  appointed  to  a permanent            position in the new agency.   Galligan has since detailed him            twice  to the  OFO as  an assistant  goal leader  for ongoing            restructuring.   (Thus, in  some respects, DeNovellis  claims            his job assignments have been inappropriate because they were            beneath  his DRA status  and in other  respects inappropriate            because  the  positions  required   accounting  or  financial            qualifications which he did not possess.)                      According  to  DeNovellis,  at  least  part  of the            reason for  the delay in  his reassignment in the  new agency            was a "position  paper" he  wrote in early  1992.  The  paper            pointed out the "convoluted interactions that were going on,"            and  it accidently  was  mailed to  a  lot of  people  in the            region, creating a furor.  Galligan was asked to find out who            was   responsible  for  this  position  paper.    During  the            investigation, DeNovellis's computer was confiscated.                                         B.                                District Court Proceedings                              __________________________                      The district court granted  summary judgment to the            Secretary as to all claims.  It dealt separately with each of            the four types of adverse  action alleged by DeNovellis.  The            court relied  on Landgraf  v. USI Film  Prods., 511  U.S. 244                             ________     ________________            (1994), to  reject  the Title  VII claim  for deprivation  of                                         -8-                                          8            duties   that  occurred  prior  to  November  21,  1991,  the            effective  date of the Civil Rights Act  of 1991, 42 U.S.C.              1981a ("the  Act" or "the  1991 Act").  The  court concluded,            essentially,  that  even   if  DeNovellis  was  discriminated            against,  he was  not entitled  to any  remedy for  it.   The            equitable remedies  available under  Title VII  prior to  the            1991 Act were not appropriate  because he suffered no loss in            pay  or  loss   of  job  that  would  warrant   back  pay  or            reinstatement (he did not  seek reinstatement).  And  the new            remedies  made available under  the 1991 Act  (in particular,            compensatory  damages) are only available for acts which took            place after November 21, 1991, and therefore did not apply to            DeNovellis's claims of pre-Act discrimination.1                      The district  court rejected DeNovellis's  claim of            post-Act  deprivation of  duties  based  on  his  failure  to            present sufficient evidence  to enable a reasonable  trier of            fact   to  conclude  that  the  employer's  motive  for  such            deprivation was discriminatory.   Whereas DeNovellis provided            indirect  evidence that Williams might have been motivated by            improper reasons  in making pre-Act assignments, Williams was            no longer in charge of the  Boston office after May 1991  and            he left Boston  altogether in December 1991.   The court held            that  DeNovellis could not bootstrap the pre-May 1991 alleged                                            ____________________            1.  The  court also  concluded that  such  remedies were  not            available under the  ADEA as a matter of  law, and DeNovellis            has not appealed that ruling.                                         -9-                                          9            discrimination  by Williams  into sufficient  evidence for  a            reasonable  trier of fact to conclude that post-November 1991            decisions were animated by similar illegal bias.                       DeNovellis  also  made  a  claim  of  hostile  work            environment based  on  negative  comments  about  his  ethnic            background  coupled with  his "sham  detail."   The  district            court rejected this claim for essentially the same reasons it            rejected  the  deprivation  of duties  claims:    any pre-Act            violation was a wrong without a remedy based on Landgraf, and                                                            ________            there   was   insufficient   evidence   that   any   post-Act            discrimination  had  occurred.    The  court  stated  in  one            sentence an alternative  ground for its  ruling:  failure  to            exhaust administrative remedies.2                      The district court also granted summary judgment to            the Secretary  on DeNovellis's  claim that  his computer  was            confiscated in retaliation for filing an EEO  complaint.  The            court rejected this claim under  Title VII on the ground that            DeNovellis  failed  to exhaust  his  administrative remedies,            because  his EEO complaint alleged nothing about retaliation.            The court  rejected the retaliation  claim under ADEA  on the            merits (the  government had  waived exhaustion  as to  ADEA).            The court  concluded that  DeNovellis failed  to present  any                                            ____________________            2.  DeNovellis also presented  to the district court  a claim            that he  was  denied the  opportunity  to be  considered  for            promotion to the  DRA position in the new  agency (ACF) after            Williams vacated  it in  December 1991.   He does  not pursue            this claim on appeal.                                          -10-                                          10            evidence to establish  a causal connection between  his March            1991 age discrimination  complaint against  Williams and  the            February  1992  confiscation  of  his  computer by  Galligan.            DeNovellis does not appeal this conclusion.                      DeNovellis  pursues  three   arguments  on  appeal:            (1) that he  is entitled  to the  remedies delineated in  the            Civil  Rights Act of  1991 because  his pre-Act  and post-Act            deprivation of duties  were part of one  continuing violation            and the effects of his "employment purgatory" extended beyond            the effective  date of the  Act; (2) that the  district court            erred in requiring him to exhaust his administrative remedies            as to  post-detail deprivations  of duties  and hostile  work            environment;  (3)  that  the district  court  was  obliged to            provide him  with a declaratory  judgment and/or an  award of            attorney's fees.                                         II.                                  Standard of Review                                  __________________                      We  review  grants  of  summary  judgment  de novo.            Dubois  v. United States Dep't of Agriculture, 102 F.3d 1273,            ______     __________________________________            1283 (1st Cir.  1996), cert. denied, 117 S.  Ct. 2510 (1997).                                   ____________            Summary  judgment   is  appropriate   when  "the   pleadings,            depositions,  answers to  interrogatories, and  admissions on            file,  together with the affidavits, if  any, show that there            is no  genuine issue  as to  any material  fact and that  the                                         -11-                                          11            moving party is entitled to a judgment as a matter of  law."3            Fed. R. Civ. P. 56(c).                      "The very mission of the summary judgment procedure            is to pierce the  pleadings and to assess the  proof in order            to see whether there is a  genuine need for trial."  Fed.  R.            Civ.  P. 56(e) advisory  committee's note to  1963 Amendment.            The  moving  party  "bears   the  initial  responsibility  of            informing the district court of the basis for its motion, and            identifying  those portions of [the record] which it believes            demonstrate the absence of a genuine issue of material fact."            Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).  Once the            _____________    _______            moving  party has properly  supported her motion  for summary            judgment,  the burden  shifts to  the  nonmoving party,  with            respect to each issue on which he has the burden of proof, to            demonstrate that a trier of fact reasonably could find in his            favor.   Id. at 322-25.   At this stage, the  nonmoving party                     ___            "may  not rest  upon  mere  allegation  or  denials  of  [the            movant's] pleading, but must set forth specific facts showing            that there  is a genuine issue"  of material fact as  to each            issue upon which  he would bear the ultimate  burden of proof                                            ____________________            3.  A factual dispute is material if it has the potential to            affect the outcome of the litigation under the applicable            law; it is genuine if there is evidence sufficient to support            rational resolution of the point in favor of the nonmoving            party.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,                    ___ ________    ___________________            248 (1986).                                         -12-                                          12            at trial.   Anderson, 477 U.S. at 256;  see Celotex, 477 U.S.                        ________                    ___ _______            at 321-23.                      Like the  district  court, in  deciding  a  summary            judgment motion we are obliged to view the facts in the light            most favorable to the nonmoving party, drawing all reasonable            inferences in that party's favor.   Dubois, 102 F.3d at 1284.                                                ______            The test is  whether, as to each essential  element, there is            "sufficient  evidence favoring the nonmoving party for a jury            to return  a verdict  for  that party.   If  the evidence  is            merely  colorable or is  not significantly probative, summary            judgment  may be  granted."   Anderson,  477  U.S. at  249-50                                          ________            (citation omitted).                        Summary judgment is not "automatically preclude[d]"            even in cases where elusive concepts such as motive or intent            are at issue.  Valles Velazquez v. Chardon, 736 F.2d 831, 833                           ________________    _______            (1st  Cir. 1984).   "[I]f the  non-moving party  rests merely            upon  conclusory  allegations,   improbable  inferences,  and            unsupported speculation," summary judgment may be appropriate            even where  intent is an  issue.  Smith v.  Stratus Computer,                                              _____     _________________            Inc.,  40 F.3d  11, 12  (1st Cir.  1994) (internal  quotation            ____            marks  omitted).   Where, however,  the  nonmoving party  has            produced more than  that, trial courts should  "use restraint            in granting summary judgment" where  discriminatory animus is            in  issue.     Valles  Velazquez,  736   F.2d  at  833;   see                           _________________                          ___            Stepanischen v.  Merchants Despatch Transp.  Corp., 722  F.2d            ____________     _________________________________                                         -13-                                          13            922,  928 (1st Cir. 1983) (courts are "particularly cautious"            about granting summary judgment in such cases).                                         III.                     Landgraf and the Continuing Violation Issue                     ___________________________________________                      The  district court granted summary judgment to the            government as to  pre-Act deprivation of  duties.  The  court            correctly found that the  five-month assignment of DeNovellis            to a  financial position for  which he had no  background and            the concomitant deprivation of  meaningful duties constituted            an adverse employment action within the meaning of Title VII.            See  Blackie v.  Maine,  75  F.3d 716,  725  (1st Cir.  1996)            ___  _________________            (holding that  "tak[ing] something  of  consequence from  the            employee,"   including   "divesting    her   of   significant            responsibilities," constitutes an adverse employment action);            see also  Collins v.  Illinois, 830 F.2d  692, 704  (7th Cir.            ________  _______     ________            1987).    The  court  also found  that  there  was sufficient            evidence  in the  record to  create a  factual dispute  as to            whether the sham  detail and the  deprivation of duties  were            motivated  by illegal discrimination on Williams's part or by            race-neutral  (and therefore  not  violative  of  Title  VII)            personality  conflict  or  cronyism.   The  court  held that,            although   DeNovellis  would  have  a  triable  issue  as  to            liability for  pre-Act discrimination, he  had no right  to a            remedy under the law as it existed prior to the 1991 Act.                                         -14-                                          14                      Prior to enactment of the Civil Rights Act of 1991,            plaintiffs  in  Title  VII cases  were  limited  to equitable            remedies (including back  pay, reinstatement, and  injunctive            relief).   Landgraf  v. USI  Film Prods.,  511 U.S.  244, 252                       ________     ________________            (1994).   The  Act,  which became  effective on  November 21,            1991, amended Title VII, and "effect[ed] a major expansion in            the    relief   available    to    victims   of    employment            discrimination."  Landgraf, 511 U.S. at 254-55.  The 1991 Act                              ________            created  a  right   on  the  part  of   individuals  alleging            intentional unlawful  discrimination to  recover compensatory            damages  "for   future  pecuniary  losses,   emotional  pain,            suffering, inconvenience, mental  anguish, loss of  enjoyment            of life, and other nonpecuniary  losses," as well as punitive            damages.   42  U.S.C.     1981a(a)(1) &  (b)(3)  (1994);  see                                                                      ___            Morrison v. Carleton  Woolen Mills, Inc.,  108 F.3d 429,  437            ________    ____________________________            (1st Cir. 1997).  The Act  also gave Title VII plaintiffs the            right to a  jury trial in cases where  they seek compensatory            or  punitive damages.    42  U.S.C.    1981a(c).   These  new            provisions,  however, do not  apply to conduct  that occurred            before  the effective  date of  the Act,  November 21,  1991.            Landgraf, 511 U.S. at 247, 286.            ________                      Applying Landgraf to the instant case, the district                               ________            court  concluded that, even  if DeNovellis were  to establish            after trial that  his sham detail and  employment "purgatory"            violated his rights under Title VII, he would not be entitled                                         -15-                                          15            to any  remedy.   This is because  the sham  detail ended  in            March  1991, prior  to the  effective date  of the  1991 Act.            Therefore,  even if  liability were found  after trial  as to            that detail, the only remedies that would have been available            to DeNovellis  were equitable,  such  as reinstatement,  back            pay, or  an injunction.   As the district court  analyzed the            remedies for  pre-Act conduct:  because  DeNovellis "suffered            no loss of pay, he may  not recover back pay; because he  did            not quit  his job, he does not  seek reinstatement.  There is            no possibility  of  enjoining Williams  from  future  details            because he  is no longer  in the office, and  DeNovellis does            not  seek  an injunction  against  details by  Galligan.   In            short, the five-month detail ending in the spring of 1991, if            based  upon illegal  discrimination, was  a  wrong without  a            remedy."    As to  the  post-Act deprivation  of  duties, the            district  court  found  insufficient  evidence  to  create  a            triable issue as  to discriminatory intent.   DeNovellis does            not directly appeal the latter determination.                      Instead, DeNovellis takes  issue with both rulings,            pre-Act  and  post-Act,  by essentially  conflating  the two.            DeNovellis argues  that he  was  the victim  of a  continuing            violation  that began before November 21, 1991, and continued            thereafter, entitling him  to compensatory damages under  the            1991  Act.  A related  continuing violation argument has been            applied   to  other   time   requirements  imposed   by   the                                         -16-                                          16            antidiscrimination laws,4 but the  theory on which DeNovellis            bases his argument is not one that the courts have approved.                      We  have   delineated  two   types  of   continuing            violation cases:   systemic and serial.   Pilgrim v. Trustees                                                      _______    ________            of Tufts  College, 118 F.3d 864,  ___, 1997 WL 370286,  at *3            _________________            (1st  Cir.  1997);  see Barbara  Lindemann  &  Paul Grossman,                                ___            Employment  Discrimination  Law  1351-63 (3d  ed.  1996).   A            _______________________________            systemic violation usually "has its roots in a discriminatory            policy or practice; so long  as the policy or practice itself            continues into  the limitation  period, a  challenger may  be            deemed to have filed a timely complaint," even if he fails to            show  "an   identifiable  discrete   act  of   discrimination            transpiring within  the period."   Jensen v. Frank,  912 F.2d                                               ______    _____            517, 523 (1st Cir. 1990).                      DeNovellis does not argue that there was a systemic            violation  here.    Rather,  he  argues  (A)  that  a  serial            violation  occurred; (B) that  the continuing effects  of his            pre-Act  deprivation  of  duties   constituted  a  continuing            violation;  and (C)  that he  was  subjected to  a continuing            hostile  work environment.   We  will address  each of  these            arguments in turn.                                            ____________________            4.  The issue usually  arises in the context of  a statute of            limitations challenge.   See, e.g., United Airlines,  Inc. v.                                     _________  _________________________            Evans, 431  U.S.  553 (1977).    But a  continuing  violation            _____            theory could be  applied to any  time requirement imposed  by            Title VII,  whether it be  the effective date of  an amending            statute, as here, or a statute of limitations, as in Evans.                                                                 _____                                         -17-                                          17                                 A.  Serial Violation                                     ________________                      A  serial violation  "is composed  of  a number  of            discriminatory acts  emanating from  the same  discriminatory            animus,  each act  constituting  a separate  wrong actionable            under Title  VII."  Jensen,  912 F.2d  at 522; Mack  v. Great                                ______                     ____     _____            Atl. & Pac. Tea Co.,  871 F.2d 179, 183 (1st Cir.  1989).  To            ___________________            state  a claim  under  this  type  of  continuing  violation,            DeNovellis would  have to show  that at least  one actionable            violation  occurred  within the  relevant  time  period, even            though the series  had begun prior to November 21, 1991.  See                                                                      ___            id.; Pilgrim,  118 F.3d at  ___, 1997 WL  370286, at *3.   He            ___  _______            could then be awarded the remedies made available in the 1991            Act.  Cf. Sabree  v. United Bhd. of Carpenters & Joiners, 921                  ___ ______     ___________________________________            F.2d  396, 401  (1st  Cir. 1990)  (In a  continuing violation            case, back  pay remedy  "may be based  on acts  that occurred            prior  to the limitations  period when  a violation  has been            established by an act within the period.").  We   must   ask,            therefore,  whether  DeNovellis's   post-Act  deprivation  of            duties constituted one  or more separate violations  of Title            VII.  To show an  actionable violation, DeNovellis would have            to  satisfy   the  familiar   three-step  McDonnell   Douglas                                                      ___________________            framework for analyzing discrimination claims.  See McDonnell                                                            ___ _________            Douglas   Corp.  v.  Green,  411  U.S.  792,  802-05  (1973);            _______________      _____            Lattimore  v.  Polaroid Corp.,  99  F.3d 456,  465  (1st Cir.            _________      ______________            1996).  Of  critical importance here, he would  have to offer                                         -18-                                          18            facts,  at an  evidentiary level  sufficient  to withstand  a            motion for summary judgment, showing that the alleged adverse            employment action  was  motivated by  discrimination  on  the            basis  of his  race, national  origin,  or age  (for an  ADEA            violation).   See St.  Mary's Honor Ctr.  v. Hicks,  509 U.S.                          ___ ______________________     _____            502, 511 (1993); Texas Dep't of Community Affairs v. Burdine,                             ________________________________    _______            450 U.S. 248, 253 (1981) ("The ultimate  burden of persuading            the   trier  of   fact  that   the  defendant   intentionally            discriminated against the plaintiff remains at all times with            the   plaintiff").      Of   course,   direct   evidence   of            discriminatory  intent  is   often  hard  to  come   by,  and            circumstantial  evidence is often  the only means  of proving            such intent.  See United States Postal Serv. Bd. of Governors                          ___ ___________________________________________            v. Aikens,  460 U.S. 711,  716 (1983); Lindemann  & Grossman,               ______            supra,  at 11.  As  the Court noted  in Hicks, DeNovellis may            _____                                   _____            show  discriminatory  motive by  circumstantial means:   "The            factfinder's  disbelief of  the reasons  put  forward by  the            defendant  (particularly if  disbelief  is accompanied  by  a            suspicion  of mendacity) may,  together with the  elements of            the   prima   facie   case,  suffice   to   show  intentional            discrimination.  Thus, rejection of the defendant's proffered            reasons will  permit [but not  require] the trier of  fact to                          ______            infer the ultimate  fact of intentional discrimination,  and,            . . .  upon   such   rejection,  no   additional   proof   of            discrimination   is  required."    Hicks,  509  U.S.  at  511                                 ________      _____                                         -19-                                          19            (footnote  and internal  quotation marks  omitted); see  also                                                                _________            Burdine,  450 U.S.  at  256  (plaintiff  may  succeed  either            _______            directly  or  "indirectly  by  showing  that  the  employer's            proffered explanation is unworthy of credence.").                       "[A]t  the  summary  judgment  stage  the   judge's            function is not  himself [or herself]  to weigh the  evidence            and  determine  the  truth  of the  matter  but  to determine            whether there is  a genuine issue for trial."   Anderson, 477                                                            ________            U.S. at 249.  The district court found that DeNovellis failed            to  offer sufficient evidence,  direct or  circumstantial, to            meet his  burden, even at  the summary judgment stage  of the            litigation,   of   providing    substantive   evidence   that            discrimination  was a factor  in his post-Act  deprivation of            duties.                        DeNovellis does not seriously  contest that finding            on appeal.   Nor could he:  the  record in this case presents            qualitatively different  scenarios  for the  pre-Act and  the            post-Act  periods.  The  district court correctly  found that            there was enough  evidence of possible  discriminatory animus            between Williams  and DeNovellis that  a jury could  find the            pre-Act detail was  motivated by discrimination and  not mere            personality  differences or cronyism.   But once  that detail            ended and  Williams was no  longer in charge of  the Regional            Office, the reasons for DeNovellis's assignments were neither            analogous nor part of the  same pattern or series.  There  is                                         -20-                                          20            precious little  evidence or inference  to get to a  trier of            fact  on   discriminatory  motive  for   post-Act  employment            decisions.  Of course, discrimination is not precluded merely            because  Williams was no longer in charge.  Nor does the fact            that  Galligan is white insulate the  defendant from a charge            that  Galligan's actions were motivated  by race.  After all,            for  the  first  eight  months of  Galligan's  tenure  as RA,            Williams was  Galligan's deputy.  Galligan, as the new person            in the  office, might  very well have  given great  weight to            Williams's    allegedly    biased    recommendations    about            reassignment    of   subordinate    personnel   during    the            reorganization, transition, and realignments.  But DeNovellis            presented no  evidence of  such discriminatory taint,  either            directly or by inference.                        Indeed,  there   is  evidence   to  the   contrary.            Bureaucratic  delays arising  from the  reorganization, which            indisputably  had nothing  to  do  with  DeNovellis  or  with            invidious  characteristics,  overtook  DeNovellis's  personal            situation.   Further, at  his  deposition, DeNovellis  denied            that  any of Galligan's  actions were motivated  by invidious            discrimination   in  any   decision  affecting   DeNovellis's            employment.  And DeNovellis  himself attributed a significant            part of the delay in assigning him to a permanent position in            the  new agency to his own error  in judgment:  the "position            paper" that he wrote and  widely disseminated.  The  district                                         -21-                                          21            court  correctly concluded  that  the  record  in  this  case            contains  virtually  no  evidence  of  post-Act   violations.            Therefore,  DeNovellis  cannot  rely  on  a serial  violation            theory to defeat the Secretary's motion for summary judgment.                                B.  Continuing Effects                                    __________________                      DeNovellis also argues another theory to circumvent            Landgraf:   that the  pre-Act sham  assignment constituted  a            ________            continuing   violation   through  its   continuing   effects.            Although the assignment itself was a discrete action that was            over  and  done  with before  November  21,  1991, DeNovellis            emphasizes  that  its  effects  continued  into  the post-Act                                   _______            period.  According to DeNovellis, these post-Act effects turn            the pre-Act discrimination into  a continuing violation  that            continued  post-Act,   thereby  triggering  the   1991  Act's            remedies.   But continuing effects, without  additional post-            Act  discriminatory actions, do  not turn a  discrete pre-Act            decision into  a continuing violation.  See United Air Lines,                                                    ___ _________________            Inc. v. Evans, 431 U.S. 553, 558 (1977).            ____    _____                      At one time,  it was thought that  this "continuing            effects" theory described  a viable third type  of continuing            violation   case,  in   addition  to   systemic  and   serial            violations.  But the  Court has made it clear that  the focus            of the  inquiry in continuing  violation cases  should be  on            "whether any present violation exists," not whether there are            residual  effects of past discriminatory conduct to which the                                         -22-                                          22            statute does not  apply.  Id. (holding that  a discriminatory                                      ___            act, not  merely the  effects of  a past  discriminatory act,                                  _______       ____            must occur within the statute of limitations period of  Title            VII); see Delaware State College  v. Ricks, 449 U.S. 250, 258                  ___ ______________________     _____            (1980); Sabree,  921 F.2d  at 400.   "[A] court  evaluating a                    ______            'continuing violation'  argument must  distinguish between  a            continuing violation and  the continuing effects of  a prior,            yet discrete  and no  longer existent,  discriminatory act."5            Cajigas v. Banco de Ponce, 741 F.2d 464, 469 (1st Cir. 1984);            _______    ______________            see Pilgrim,  slip op. at  9; Kassaye v. Bryant  College, 999            ___ _______                   _______    _______________            F.2d 603, 606 (1st Cir. 1993).                       We  recently rejected a plaintiff's theory that the            failure to restore her to her prior position formed part of a            continuous  chain of  misconduct  extending  beyond the  time            deadline.   Morrison, 108  F.3d at  443.   We  held that  the                        ________            employer's "inaction [was]  not enough."  Id.   We pointed to                                                      ___                                            ____________________            5.  We  note that  this  is  a rule  governing  what kind  of            conduct creates liability, not a rule of evidence.  Past acts            of discrimination may constitute relevant background evidence            and therefore  may be  admissible at trial.   See  Evans, 431                                                          ___  _____            U.S. at 558; Sabree, 921 F.2d at 400 n.9, 402.                          ______                      Moreover,  although not  considered in  determining            liability, the  continuing effects of  discriminatory conduct            are  considered at  the relief stage  if liability  is found.            "The objective of  fashioning an appropriate remedy  in Title            VII cases is  to formulate the most  complete relief possible            to eliminate  the effects  of discrimination."   Sabree,  921                                                             ______            F.2d at 401 (internal quotation marks omitted); see Albemarle                                                            ___ _________            Paper  Co. v.  Moody, 422  U.S.  405, 418-21  (1975) (To  the            __________     _____            extent  consistent   with  statutory   limitations,  once   a            violation of  Title VII has  been found, it is  important for            courts to fashion "make whole" relief.).                                          -23-                                          23            what we had said in a somewhat analogous situation:  "'it was            incumbent  upon [the plaintiff]  to allege facts  giving some            indication  that the later  refusals were themselves separate            . . .  violations.'"   Valles  Velazquez,  736  F.2d  at  833                                   _________________            (quoting Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018                     _______    ____________________            (1st Cir. 1979)).  The  same reasoning applies to the instant            case.   Even  though DeNovellis's  sham detail  had not  been            remedied by the  time the Act became effective,  the focus at            the liability stage  of our inquiry is the  date the employer            made the  allegedly  discriminatory decision  to detail  him,            even though the decision's effects still persisted after that            effective date.  See De Leon Otero v. Rubero, 820 F.2d 18, 20                             ___ _____________    ______            (1st Cir. 1987) (Defendants'  refusal to reinstate  plaintiff            "was  not a  separate  act of  discrimination,  but rather  a            consequence of his initial demotion."); Valles Velasquez, 736                                                    ________________            F.2d  at  833  (demotion  followed  by  defendant's  repeated            refusals   to  reinstate  plaintiff   did  not  constitute  a            continuing violation);  Goldman, 607 F.2d  at 1018-19 (denial                                    _______            of requests to  be retransferred back to  original department            after  allegedly  discriminatory  initial  transfer  did  not            constitute  a  continuing  violation).     We  conclude  that            DeNovellis's   continuing   effects   argument   is   legally            insufficient.                             C.  Hostile Work Environment                                 ________________________                                         -24-                                          24                      As his  final salvo  against the  Landgraf bulwark,                                                        ________            DeNovellis  argues a theory of hostile work environment which            would constitute  a continuing violation of Title  VII.6  See                                                                      ___            Mills v.  Amoco Performance Prods.,  Inc., 872 F.  Supp. 975,            _________________________________________            986 (S.D. Ga. 1994) (A "hostile environment sexual harassment            claim is  an archetypal  continuing violation  claim.").   He            cites  cases involving  sexual harassment  where courts  have            concluded  that  the  allegations   "were  not  discrete  and            independent acts of  sexual harassment .  . . but  additional            components of  one cause  of action for  an alleged  sexually            hostile  environment."   Mills,  872 F.  Supp. at  985.    "A                                     _____            hostile environment claim is a single cause of action  rather            than  a sum total of a number  of mutually distinct causes of                                            ____________________            6.  The government  argues that DeNovellis cannot  raise this            hostile work environment  argument here because he  failed to            allege  it in  his  complaint.   That  view misconstrues  the            purpose  of the complaint  in federal litigation.   Under the            concept  of notice  pleading, a  complaint  need not  clearly            articulate  the  precise  legal   theories  upon  which   the            plaintiff bases  his right to  recovery.  The  complaint must            simply  "'give  the   defendant  fair  notice  of   what  the            plaintiff's  claim is and the grounds  upon which it rests.'"            Baldwin County Welcome  Ctr. v. Brown, 466 U.S.  147, 150 n.3            _____________________________________            (1984) (quoting Conley  v. Gibson, 355  U.S. 41, 47  (1957)).                            _________________            The plaintiff in the present case made clear in his complaint            the  types of adverse  action he  was alleging  (sham detail,            derogatory comments), and set forth the  discriminatory basis            that he  claimed for  those actions  (race, national  origin,            age), in  violation of Title VII and the  ADEA.  As for legal            theories, he then put his continuing hostile work environment            theory  before the district  court when the  court considered            the  defendant's motion  for summary  judgment  (albeit in  a            reply brief).  That is  sufficient to enable the plaintiff to            argue that theory  on appeal.  Cajigas v. Banco de Ponce, 741                                           _______    ______________            F.2d 464, 468 n.12 (1st Cir. 1984).                                         -25-                                          25            action to  be  judged each  on  its own  merits."   Vance  v.                                                                _____            Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir.            _____________________________            1989).  The  Mills court therefore  allowed the plaintiff  to                         _____            seek  recovery of compensatory  and punitive damages  for any            post-Act conduct amounting  to sexual harassment  under Title            VII.  Id.                    ___                      Although  DeNovellis does  not discuss  them, other            courts have  allowed Title  VII claims  for harassment  other            than  sexual  harassment.   See  Lattimore, 99  F.3d  at 463;                                        ___  _________            Lindemann & Grossman, supra, at 749-54.  Indeed, until recent                                  _____            years, one of  the most common forms of  harassment claim was            verbal  abuse,  such as  racial  epithets.   See  Lindemann &                                                         ___            Grossman,  supra, at 749-54.  Harassment may also  consist of                       _____            pranks and other forms of hazing, even without  racial slurs,            although, in such  cases, "courts look especially  closely to            see  whether the conduct  is in  fact racially  [or otherwise            invidiously] motivated."  Id. at 753.                                       ___                      Not  all   offensive  conduct   is  actionable   as            harassment; trivial  offenses do  not suffice.   See  Meritor                                                             ___  _______            Sav. Bank v. Vinson, 477 U.S.  57, 67 (1986).  The Court  has            _________    ______            ruled  that, in  order to  establish  a Title  VII claim  for            sexual  harassment under  a hostile  environment theory,  the            conduct must be  "'sufficiently severe or pervasive  to alter            the  conditions  of  the victim's  employment  and  create an            abusive  [or  hostile]  working  environment.'"    Harris  v.                                                               ______                                         -26-                                          26            Forklift  Sys., Inc.,  510 U.S.  17,  21 (1993)  (quoting Los            ____________________                                      ___            Angeles Dep't of Water  & Power v. Manhart, 435 U.S. 702, 707            _______________________________    _______            n. 13  (1978)); see Vinson,  477 U.S. at 67;  Carleton Woolen                            ___ ______                    _______________            Mills, 108 F.3d at 439.            _____                      In determining  whether harassment  on  the job  is            sufficiently severe  or pervasive to  rise to the level  of a            Title VII  violation, courts look  to the gravity as  well as            the frequency  of the offensive  conduct.  See,  e.g., Vance,                                                       __________  _____            863 F.2d at 1510-11  (noose hanging from light  fixture above            employee's work  station  twice was  sufficient to  establish            harassment  violation).   Guidelines  published by  the Equal            Employment Opportunity Commission (EEOC)  require that sexual            harassment be severe  enough to alter the  victim's workplace            experience  (even  if  the  conduct  only  occurs  once),  or            pervasive  enough to  become  a  defining  condition  of  the            workplace.  EEOC Policy Guidance on Sexual  Harassment, 8 FEP            Man. at  405:6689; see Lindemann  & Grossman, supra,  at 794.                               ___                        _____            Sexual harassment can  be severe  enough to  be illegal  even            without  tangible effects on job performance or psychological            well-being.  Harris, 510 U.S. at 22.                          ______                      DeNovellis's  reliance on  sexual harassment  cases            such as  Mills is  misplaced because  the situations  are not                     _____            analogous.  Mills and other sexual harassment cases involve a                        _____            pervasive  and  continuing  hostile  work environment,  which            constitutes  a  continuing  violation,  akin  to  a  systemic                                         -27-                                          27            (continuing practice)  violation.  In  contrast, DeNovellis's            allegations  of  "purgatory" job  assignments  set  forth, at            best,  allegations as to  discrete and independent employment            decisions,  however adverse.   Such claims are  not pervasive            enough  to  be  considered as  one  continuous  imposition of            hostile  work  environment, analogous  to  sexual harassment.            Nor  is  a  "purgatory"  assignment  sufficiently  severe  to            constitute,  by itself,  a  hostile  work  environment.    As            previously noted, the fact that  DeNovellis remained assigned            to  "purgatory" cannot constitute  a post-Act violation, even            though the effects of that assignment decision were prolonged            into the post-Act period by the bureaucratic delays emanating            from the  agency's reorganization.   See  Evans, 431  U.S. at                                                 ___  _____            558; see Part III.A., supra.                 ___              _____                      DeNovellis correctly points out that the court must            focus on the work atmosphere as a whole, and not separate out            each  demeaning  work  assignment  or  derogatory remark  for            individual   analysis.    See   Vance,  863  F.2d   at  1510.                                      ___   _____            Nevertheless,  the  question is  whether  he produced  enough            evidence on  the entire summary  judgment record to  enable a            reasonable  trier  of  fact  to  find  a  cognizable  hostile            environment claim.  We agree  with the district court that he            did not.                       Williams and  others  at HHS  apparently made  some            scattered  comments  that  could  be  construed  as  evincing                                         -28-                                          28            racial,  ethnic, or age-based hostility, although some of the            comments   in  the  record  were  not  made  in  DeNovellis's            presence.  DeNovellis does not argue that these comments were            severe  or pervasive, nor does he claim that they rise to the            level of sufficiency necessary to make out a prima facie case            of harassment.  Rather, he appears to offer them as probative            of discriminatory motive underlying his job assignments.                      The  major  aspect  of his  work  environment  that            DeNovellis  claims was  hostile or  "harassing"  was his  so-            called "employment purgatory" of job assignments to positions            he considered to be unfit for his level of qualification.  As            already  noted, the  "hostile"  aspect  of  remaining  in  an            undesirable  job  assignment  is  not  akin  to  a  pervasive            environment  claim; it  is  a  discrete employment  decision,            however adverse it may  be.  Even when this  is combined with            the derogatory comments, we do not think a fact-finder, based            on  this record, could  reasonably conclude that DeNovellis's            work environment was so pervaded with  racial, ethnic, or age            discrimination  so as to constitute a violation of Title VII.                      That DeNovellis would  be left without a  remedy if            we affirm  the district court's decision is  not a sufficient            reason to  warrant reversal.   The Court in Landgraf  was not                                                        ________            moved  by petitioner's argument  there that, "if  she [could]            not obtain damages pursuant to [the 1991 Act], she [would] be            left  remediless despite an  adjudged violation of  her right                                         -29-                                          29            under Title VII to be free of workplace discrimination."  511            U.S. at 285  n.38.  As the  Court put it, Title  VII "did not            create   a   'general   right   to   sue'    for   employment            discrimination, but instead specified a set of 'circumscribed            remedies,'"  and "[u]ntil the  1991 amendment, the  Title VII            scheme did not allow for damages.  We are not free to fashion            remedies  that  Congress  has   specifically  chosen  not  to            extend."  Id. (quoting United  States v. Burke, 504 U.S. 229,                      ___          ______________    _____            240 (1992)).   DeNovellis's lack  of a remedy (even  if there            were a violation) is a result of the way Congress had drafted            Title VII  prior to the  1991 Act; whatever  unfairness arose            from that  limited remedial  scheme  affected all  plaintiffs            suing under it.                                           IV.                        Exhaustion of Administrative Remedies                        _____________________________________                      DeNovellis argues that the district  court erred in            dismissing his post-detail deprivation of duties  and hostile            environment  claims   because  he  failed   to  exhaust   his            administrative   remedies.     DeNovellis  misconstrues   the            district court's decision.   The court did  not grant summary            judgment   against  him  based  on  his  failure  to  exhaust            administrative  remedies.    With  respect  to  the  post-Act            deprivation  of  duties  the district  court  stated  that "a            strong argument" could be made  that he has not exhausted his            Title  VII claim,  but the  court did  not decide  the issue.                                         -30-                                          30            Moreover, with respect to his claim under the ADEA, the court            noted  that  the   government  had   waived  any   exhaustion            argument.7     The  district   court  decided   the  post-Act            deprivation  of duties  claim on  the  basis that  DeNovellis            failed   to  produce   evidence  to   support   a  claim   of            discrimination, sufficient to withstand summary judgment.                      The  district court  rejected DeNovellis's  hostile            work  environment claim  based on  the same reasoning  as the            pre-Act deprivation of duties (a possible wrong but without a            remedy).   The court  added one sentence  stating failure  to            exhaust  as an alternative  ground for rejecting  this claim,            but we need not address that here because we affirm based  on            DeNovellis's failure to  demonstrate a genuine issue  as to a            severe or pervasive hostile environment.                         Thus,  we  need not  reach  DeNovellis's exhaustion            argument  because  we  uphold  the district  court's  summary            judgment ruling  as to Title  VII and the  ADEA based  on its            reasons other than exhaustion.                                              ____________________            7.  The  government takes the position that the ADEA does not            require  a  federal employee  to  exhaust his  administrative            remedies.  The  Supreme Court has held,  in the context of  a            private   employer,   that   "filing  a   timely   charge  of            discrimination   with  the  EEOC   is  not  a  jurisdictional            prerequisite  to suit  in federal  court,  but a  requirement            that, like  a statute of  limitations, is subject  to waiver,            estoppel,  and  equitable  tolling."   Zipes  v.  Trans World                                                   _____      ___________            Airlines, Inc.,  455 U.S. 385,  393 (1982).   Quite  possibly            ______________            Zipes should  apply as  well when a  federal employee  sues a            _____            federal agency, see Rennie v. Garrett, 896 F.2d 1057, 1059-60                            ___ ______    _______            (7th Cir.  1990) (citing cases);  but we need not  decide the            point definitively in the present case.                                         -31-                                          31                                         -32-                                          32                                          V.                        Declaratory Relief and Attorney's Fees                        ______________________________________                      Finally, DeNovellis argues that  the district court            should  have awarded  him  declaratory relief  and attorney's            fees.  His  reasoning, however, is based on  a false premise.            DeNovellis asserts that the district court                       ruled as a matter of law that DeNovellis'                      "five-month  assignment  to  a  financial                      position for  which he had  no background                      was not  only a  set-up  for failure  but                      also   an   adverse   employment  action"                      motivated by illegal discrimination based                      upon age, race or ethnicity.            The  internal quotations  accurately  reproduce the  district            court's conclusion as  to the legal  question of whether  the            sham  assignment  constituted  an adverse  employment  action            within the meaning  of Title VII and the  ADEA.  DeNovellis's            assertion    after   the    internal   quotation,    however,            misrepresents what the district court found.                        The  court  held  that  DeNovellis  had   presented            sufficient evidence on the intent issue  to survive a summary            judgment motion as to his pre-Act deprivation of duties.  The            court  did  not  make  a conclusive  factual  finding  as  to            discriminatory intent; that question would be resolved by the            trier of fact if the matter went to trial.  The court granted            the Secretary's motion for summary judgment because the court            found that DeNovellis would not  be entitled to a remedy even            if the case  went to trial and  he were able to  persuade the                                         -33-                                          33            trier   of  fact  that  the  defendant  was  motivated  by  a            discriminatory intent.                      The difference between what the court actually held            and what DeNovellis  claims it held is fatal  to his argument            that  the court  was  obligated to  award  him a  declaratory            judgment and attorney's fees.8  If DeNovellis were correct in            his characterization of  the posture of the case  -- that the            district   court  had  already  made  a  factual  finding  of            discriminatory  intent --  then the  court  would still  have            discretion  as to whether  to grant declaratory  relief after            finding  discrimination  at   trial.    But  at   least  then            DeNovellis  might be  able to persuade  us that  the district            court abused its discretion in denying him declaratory relief            and fees.                        The Declaratory  Judgment Act is "an  enabling Act,            which confers  a  discretion on  the  courts rather  than  an            absolute   right  upon  the   litigant";  courts  have  broad            discretion  to  decline  to  enter  a  declaratory  judgment.            Wilton v. Seven Falls Co.,  515 U.S. 277, 287 (1995) (quoting            ______    _______________            Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S.  237, 241            ___________________________    __________            (1952)).  "By  the Declaratory Judgment Act,  Congress sought                                            ____________________            8.  Although  his  complaint  did   not  seek  a  declaratory            judgment,  DeNovellis argues that the court had the authority            to award such relief under his final prayer for relief, which            sought  "such other  and further  relief as  may be  just and            proper."   He  is correct  on this  point, but we  reject his            declaratory judgment argument on other grounds.                                         -34-                                          34            to place a remedial arrow  in the district court's quiver; it            created an  opportunity, rather than  a duty, to grant  a new            form of relief to qualifying litigants.  Consistent with  the            nonobligatory  nature  of  the remedy,  a  district  court is            authorized, in the sound exercise of its discretion, . . . to            dismiss  an action  seeking  a  declaratory  judgment  before            trial."  Wilton,  515 U.S. at 288.   Although "federal courts                     ______            have  a 'virtually  unflagging  obligation'  to exercise  the            jurisdiction conferred on them by Congress," a district court            may "nonetheless abstain from the assumption  of jurisdiction            over a suit  in 'exceptional' circumstances" such  as where a            declaratory judgment is  sought regarding an  issue currently            pending in a  state court  action.  Wilton,  515 U.S. at  284                                                ______            (quoting Colorado  River Water  Conservation Dist.  v. United                     _________________________________________     ______            States, 424 U.S.  800, 813, 817-18, 818-20 (1976)).   "In the            ______            declaratory  judgment  context,  the  normal  principle  that            federal  courts   should  adjudicate   claims  within   their            jurisdiction  yields  to considerations  of  practicality and            wise judicial administration."  Wilton, 515 U.S. at 288.  But                                            ______                    ___            see  Steffel v.  Thompson, 415  U.S. 452,  468 (1974)  ("'[A]            ___  ____________________            federal  district   court  has   the  duty   to  decide   the            appropriateness  and the  merits of  the declaratory  request            irrespective of  its conclusion as  to the  propriety of  the            issuance of [a requested] injunction.'") (quoting Zwickler v.                                                              ________            Koota, 389 U.S. 241, 254  (1967)); Frankfurter & Landis,  The            _____                                                     ___                                         -35-                                          35            Business of  the  Supreme  Court:  A  Study  of  the  Federal            _____________________________________________________________            Judicial System 65  (The federal courts are  "the primary and            _______________            powerful reliances for  vindicating every right given  by the            Constitution, the laws, and treaties of the United States.").                      The standard of  appellate review of a  decision as            to  declaratory relief is  whether the district  court abused            its  discretion.   Wilton, 515  U.S. at  289.   Thus,  if the                               ______            district  court  actually  found  discriminatory  intent   in            DeNovellis's deprivation  of duties,  we might  or might  not            find that the denial of a  declaration to that effect was  an            abuse  of  discretion.   Cf.  Metropolitan  Stevedore  Co. v.                                     ___  ____________________________            Rambo, 117  S. Ct. 1953 (1997) (nominal  damages permitted in            _____            Longshore  and Harbor Workers' Compensation Act case in order            to preserve right to receive future benefits).                      Because the district court  found that the question            of  discriminatory  intent  was  a   triable  issue,  without            reaching  any conclusion as  to whether such  intent actually            existed, our review of its denial of declaratory relief is in            a  different posture.   The  court  faced the  possibility of            conducting  a trial  in this  case,  assessing arguments  and            counter-arguments  as  to  what people  intended  by  certain            statements  or  actions,  with no  opportunity  to  award any            relief to DeNovellis that would remedy the harm  he allegedly            suffered.   After trial,  the court  might possibly have  the            authority  to enter  a declaration  that some  or all  of the                                         -36-                                          36            defendant's    now-terminated    employment    actions   were            discriminatory.    In  the circumstances  of  this  case, the            district  court's decision  -- prior to  trial --  to refrain            from such a  fruitless endeavor was within  its discretionary            power.  See Wilton, 515 U.S. at 288.                    ___ ______                      Because  DeNovellis   has  no   entitlement  to   a            declaratory  judgment and because we have affirmed the denial            of other  relief, he has  not prevailed  on any issue  in the            case and attorney's fees may not be awarded.  See 42 U.S.C.                                                            ___            1988;  Texas  State  Teachers Ass'n  v.  Garland  Indep. Sch.                   ____________________________      ____________________            Dist.,  489  U.S.  782,  791-92   (1989)  (A  litigant  is  a            _____            prevailing party  if he  "has succeeded  on 'any  significant            issue in litigation which achieve[d]  some of the benefit the            parties sought in bringing  suit.'") (alteration in original)            (quoting  Nadeau v. Helgemoe, 581  F.2d 275, 278-79 (1st Cir.                      ______    ________            1978)).                                      Conclusion                                      __________                      Title  VII  and our  other  antidiscrimination laws            serve essential societal goals.  See Aikens, 460 U.S. at 716.                                             ___ ______            If America stands  for anything in the world,  it is fairness            to all, without regard to race, sex, ethnicity, age, or other            immutable characteristics that  a person does not  choose and            cannot change.   We have  recently had occasion to  note that            "Title VII is one  of the brightest stars in the firmament of            this   nation's  antidiscrimination   laws."     Serapion  v.                                                             ________                                         -37-                                          37            Martinez, ___ F.3d ___, ___, 1997 WL 394605, at *2 (1st  Cir.            ________            July 18, 1997).                        The  standards  for  summary  judgment  are  highly            favorable to the party opposing  such a motion, and issues of            motive  often present fair factual disputes properly resolved            by a factfinder  after trial.  Nevertheless, in this instance            the  dearth  of  evidence  is simply  too  great  and summary            judgment was properly granted.                      The judgment of the district court is Affirmed.                                                            Affirmed                                                            ________                                         -38-                                          38
