May 13, 1996 [NOT FOR PUBLICATION]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633a(c), was withdrawn at trial and is no longer at issue.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