Randlett v. Shalala

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1950

JEAN M. RANDLETT,

Plaintiff, Appellant,

v.

DONNA E. SHALALA, SECRETARY,
DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

Robert Le Roux Hernandez for appellant.
Lori
J.
Holik,
Assistant
United States Attorney, with whom Donald K.
Stern, United States Attorney, was on brief for the United States.

July 10, 1997

BOUDIN, Circuit Judge. This appeal brings to the court

the
most
recent chapter in a 20-year quarrel between a federal

department
and
its
former employee, Jean Randlett. It presents

an
important
legal
issue
concerning the reach of the protection

afforded by Title VII of the Civil Rights Act of 1964, 42

U.S.C. S 2000e et seq. We hold that Title VII can offer

protection against a retaliatory refusal to transfer an

employee, but that no evidence existed here to show

retaliation.

I.

Because Randlett's claims were resolved against her on

summary judgment, we state the facts in the light most

favorable
to
her.

Sargen
t v. Tenaska, Inc., 108 F.3d 5, 6 (1st

Cir. 1997). In 1975, Randlett worked in Denver in the Office

of Civil Rights of the Department of Health, Education and

Welfare
as
an
equal
opportunity specialist with a civil service

grade of GS-12. She applied for a promotion to a GS-13

position
in
Denver
but
was denied promotion in favor of another

candidate. A few months later, in August 1975, she was

terminated.

Randlett filed a complaint with the Equal Employment

Opportunity
Commission,
alleging discrimination based on gender

and national origin (she is white and of European descent).

Six
years
later, the EEOC ruled in her favor, finding that the

record showed "[n]o other credible reason for [her]

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nonselection . . . other than the fact that the selecting

official wanted to insure that the Hispanic male was awarded

the GS-13 position." It found that Randlett's discharge was

similarly motivated by discriminatory animus. In particular,

the EEOC found that the official who considered Randlett's

promotion
had applied pressure on the selecting panel to alter

its
rankings, which favored Randlett, so that the job could go

instead to a friend of the selecting official.

The EEOC's 1981 order directed the Department, now

metamorphosed
into
Health and Human Services ("HHS"), to cancel

Randlett's 1975 discharge and to "immediately reinstate"

Randlett in the Denver office as an equal opportunity

specialist,
grade GS-13. The order also awarded Randlett back

pay and other entitlements for the period since her

termination,
and
it
required HHS to report within 30 days as to

the
steps
it
planned to take to implement the required action.

In late June 1981, Randlett began what would be an

extensive exchange of telephone calls and correspondence,

primarily with Thomas Jefferson, an HHS official based in

Washington,
D.C., who was apparently charged with coordinating

Randlett's reinstatement. She also talked with Patricia

Taphorn, a personnel official in the Denver office. The

upshot,
according to Randlett, was an agreement that she would

return
to
the payroll of the HHS Denver office as of August 9,

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1981, but by using four weeks of accumulated leave, would not

actually report for work until early September 1981.

According
to
both
Randlett and Taphorn, Jefferson was very

difficult to reach over the course of the summer and did not

act quickly enough to confirm this understanding, nor would

anyone else in the Washington office take responsibility for

doing
so.

We
pass
over
the details, but there is no indication

that
anything other than bureaucratic sloth was the cause. In

any
event,
in August 1981, Randlett signed a contract with her

then-current employer, the Barnstable, Massachusetts, school

system,
extending her employment there for an additional year.

Not long afterwards, Randlett received a letter from

Jefferson, confirming that she was reinstated in the Denver

office as of September 1981; he also referred to the

possibility
of a transfer to another regional office, but said

that this was not certain. Further telephone calls were

exchanged,
and
the
matter was still unresolved in October 1981,

when Randlett's father became seriously ill. Randlett then

told
Jefferson that she would need to stay in Massachusetts to

care for her father.

After
further
confusion,
Randlett in February 1982 secured

from
another
HHS
official in Washington a temporary "detail" to

a Boston HHS office, effective March 1, 1982, for a period of

not more than 120 days. The official--Betty Lou Dotson,

director of the Office for Civil Rights--wrote Randlett that

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the
detail
was
"granted
to accommodate your personal situation"

and
concluded
by
saying
that "I trust this detail will give you

the opportunity to attend to your personal responsibilities."

Randlett resigned from her schoolteaching position and

began
working
in
the
Boston HHS office in March 1982. By then,

her
father
had
died,
but
her aging mother's health was failing.

Randlett also claims that, almost immediately, she began to

experience problems in the Boston HHS office because of

inadequate training on work assignments, that she received a

"low satisfactory" ranking in an evaluation, and that she was

listed
at
a
GS-12
level
in Boston (even though she continued to

receive a GS-13 salary).

According to Randlett, Jefferson called her in May 1982

and asked her when she planned to return to Denver. Randlett

replied
that
she thought her position in Boston was permanent,

but in June 1982, she sent a letter to HHS in Washington,

requesting
a
permanent assignment to the Boston office, saying

"this
is
an
unusual request, but probably no more unusual than

the six and a half years of injustices" that she had endured.

It appears that Randlett also had a telephone conversation on

the subject with Bart Crivella, Jefferson's supervisor.

In
early
July
1982,
the
request was answered in writing by

Nathan Dick, the deputy director of the Office for Civil

Rights. Dick's letter denied the transfer request but said

that HHS was willing to extend the temporary detail in Boston

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until
September
30,
1982, with Randlett returning on October 1,

1982, to her "permanent duty station in Denver." The letter

explained:

[I]t
is
not
possible for the Office for Civil Rights
to
offer
you
a permanent assignment in Boston. Your
requested
assignment and subsequent detail to Boston
was
a
temporary action taken only to accommodate you
during
the
adjustment period after the death of your
father. . . . However, the recent RIF actions in
the
regions
and the continuing ceiling and budgetary
constraints have eliminated practically any
potential
options for this office [in Washington] to
assign you to the Boston office on a permanent
basis.

In September, Randlett received another letter from Dick

requesting
her
to
report
for work in Denver on October 1, 1982.

Randlett
then
filed
a
complaint with the EEO officer in Boston,

alleging
that
Washington
officials were retaliating against her

"for having filed a previous complaint in Denver . . . which

was resolved in my favor." Randlett's new complaint named as

the
persons
who had retaliated against her Jefferson, Dick and

Crivella.

Instead
of
reporting
to
work in Denver on October 1, 1982,

Randlett arranged to use accrued leave credits to stay in

Boston for the remainder of the year. In November 1982,

Randlett's prospective supervisor in Denver, Alex Aguilar,

confirmed
the request for leave from October 1 to December 31,

1982; but the letter also said that Aguilar expected Randlett

to report for work on January 3, 1983, and that he would

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consider
any
request for further leave to be "unreasonable and

not in the best interests of our organization."

Randlett then asked Aguilar for leave-without-pay status

after December 1982. Aguilar refused, saying that Randlett's

"prolonged" absence was detrimental to his office. Randlett

then
asked
for
sick
leave. Aguilar wrote that the agency might

be
able
to
make
health-related accommodations for her in Denver

so long as she documented her ailments; but some two weeks

later Aguilar told Randlett that the documents she submitted

were not adequate. In March 1983, Randlett resigned, saying

that it was done involuntarily to prevent any "additional

harassment" from Aguilar or "any other further retaliatory

acts."

Randlett's
September 1982 complaint--directed against the

three named Washington officials--was originally rejected by

HHS on the ground that it was untimely, but this ruling was

reversed by the EEOC in 1985. Incredibly, the ensuing HHS

internal investigation lasted over seven years. In August

1992, an HHS administrative law judge denied Randlett's claim

of retaliation. His denial was sustained by the EEOC in

November 1993.

In
December
1993, Randlett filed her present complaint in

the federal district court under Title VII. The core of the

complaint
was
that
"[a]lthough HHS had full power and authority

to
assign
plaintiff a permanent position in the Boston office,

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it unreasonably refused to do so in order ultimately to force

plaintiff
to
resign."

The complaint attributed this refusal to

retaliation for Randlett's successful 1975 complaint against

the department, saying that hardship transfers were routinely

granted to individuals with hardship requests similar to or

less serious than Randlett's.

Randlett
also charged that she had been given an improper

"low satisfactory" performance rating and inadequate training

in Boston. She asked for "[r]einstatement to her position in

Boston" with back pay and benefits and reimbursement for some

health insurance premiums and out-of-pocket medical expenses.

She
also
sought
compensatory and punitive damages of $1 million

each.

After a period of discovery, HHS moved for summary

judgment.

It argued that the denial of permanent transfer was

not
an
adverse employment action under Title VII, and that the

agency
had
made
an
effort to accommodate Randlett's requests by

granting a temporary detail to Boston but that it was not

required to go further. HHS also supplied the court with

correspondenc
e and a transcript of Randlett's testimony in the

EEOC's recent investigation.

Randlett
responded
with
her own version of events and also

submitted
affidavits from HHS employees attesting that HHS did

approve
hardship
transfers with some regularity, and suggesting

that she could have been accommodated in the Boston office.

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The most dramatic affidavit was submitted by an EEOC employee

who
had
previously worked in the Denver HHS office. According

to
the
affiant, in the spring of 1982 he had been talking with

Aguilar about a GS-13 position in the Denver office and asked

if it was going to be filled permanently and if so, by whom.

The affidavit continued:

Alex Aguilar told me "That position [cannot] be
filled
permanently until the matter of Jean Randlett
is resolved, but I am going to make sure that she
does not come to Denver. We are going to put a lot
of pressure on her so she will not return to
Denver."

On June 5, 1996, the district judge issued a 29-page

memorandum
and
order
granting HHS' motion for summary judgment.

The decision dealt in different ways with Randlett's various

claims, as will appear from our own discussion. The decision

went some distance in the direction that HHS had urged in its

original
motion, holding that "rejection of Randlett's request

to
continue
to stay in Boston for personal reasons is not a[n]

adverse action cognizable by federal law."

II.

A grant of summary judgment is subject to de novo review

on appeal, and this includes any claim that the evidence made

out a material issue of fact that precludes summary judgment.

Sargent
,
108
F.3d at 6. Before addressing the central issue--

the denial of Randlett's request for a transfer to Boston--we

consider
briefly, and then put to one side, certain rulings by

the district court that require no extended treatment.

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In the district court, Randlett urged that she had been

"promised" a permanent transfer to Boston by Jefferson.

Assuming arguendo that such a "promise" might receive some

special protection, the district court carefully reviewed the

pertinent proffers of evidence, especially the documents

exchanged between Randlett and the Washington office, and

concluded that no reasonable jury could find that such a

promise had been made. Without repeating the details, which

are set forth in the district court's decision, we agree with

this ruling.

The district court also made short work of Randlett's

claim that she had received inadequate training in Boston,

saying
that
even if this were true, there was no evidence that

it was based upon a motive to retaliate against her for her

earlier complaint. "At most," the district judge ruled, "the

evidence shows that the Boston assignment was an awkwardly-

designed and temporary expedient to accommodate Randlett

pending
her
return
to
the duty station [Denver] directed by the

1981 EEOC decision." This ruling also is well supported.

The
district
court
also
rejected Randlett's claim that she

was improperly listed as a GS-12 employee in Boston, saying

that this was not an adverse employment action since Randlett

continued
to
be
paid
at
the GS-13 level. We affirm this ruling

on a narrower ground: no evidence exists that this alleged

Boston-office "error" was motivated by a desire to retaliate

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against Randlett for filing a complaint seven years before

against
a
different HHS office. Whether in some other case an

inaccurate listing could be an adverse action under Title VII

need not be pursued here.

The
central
issue is HHS' refusal to transfer Randlett to

the
Boston
office. The district court said that this was "not

a[n] adverse action cognizable by federal law," but it also

said that not even a "scintilla of evidence" supported the

claim
"that
the agency retaliated against Randlett by refusing

to
provide
a
permanent transfer to Boston for hardship reasons

or to extend her temporary detail." These are two different

reasons, one relating to law and the other to fact.

The
more
difficult
of
the two is the legal question: what

types of employer actions adverse to the employee can, where

improperly
motivated, give rise to a Title VII complaint. The

district judge, arguably supported by references in the

decisions of a few other courts, accepted HHS' argument that

the refusal of a lateral transfer to another office of the

agency does not rise to the level of an adverse employment

action compensable under Title VII--even if done for an

improper motive.

The statute itself says that an employer may not

"discriminate" against an employee or applicant "because [the

employee
or
applicant] has made a charge . . . or participated

in
any
manner" in a Title VII investigation or proceeding. 42

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U.S.C.
S
2000e-3(a).

Elsewhere, the statute lists actions that

can
constitute discrimination, specifying a refusal to hire, a

discharge, or any discriminatory treatment with respect to

"compensation,
terms,
conditions, or privileges of employment."

Id. S 2000e-2(a). Arguably, the two sections should be read

together.

Even so, "terms, conditions, or privileges" is pretty

open-ended
language. It obviously includes opportunities that

are not strictly entitlements, Hishon v. King & Spalding, 467

U.S. 69, 75-76 (1984) (promotion to partner); and a number of

cases have extended coverage to slights or indignities that

might seem evanescent, e.g., McKenzie v. Illinois Dep't of

Transp., 92 F.3d 473, 484 (7th Cir. 1996) (employee given

tedious
minor duties); Aviles-Martinez v. Monroig, 963 F.2d 2,

6 (1st Cir. 1992) (daily ridicule in clients' presence).

On occasion, disadvantageous transfers have been treated

as
potentially
within
the scope of Title VII. E.g., Collins v.

Illinois
,
830 F.2d 692, 702-04 (7th Cir. 1987) (citing cases).

The main authority cited by the district court, Haimovitz v.

United States Dep't of Justice, 720 F. Supp. 516 (W.D. Pa.

1989),
aff'd
,
902 F.2d 1560 (3d Cir. 1990), did reject a claim

where the employee had been transferred to another location;

but
while
the
opinion
is
not crystal clear, the main reason was

apparently
a
failure to show an illegal motive. Id. at 525-27.

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Here, the claim concerns a refusal to transfer, arguably

less intrusive than involuntary relocation. But Randlett's

affidavits make clear that at HHS a permanent transfer for

hardship
reasons is a common enough practice and so arguably a

"privilege"
of
employment. For Randlett, the transfer here was

doubtless as important as a promotion. Assuming an improper

motive,
it
is hard to see why denial of a hardship transfer in

this case could not be discrimination under Title VII. See

Bauman

v.
Blo
ck, 940 F.2d 1211, 1229 (9th Cir.), cert. denied,

502 U.S. 1005 (1991).

No doubt construing the statute in this manner opens the

way to whimsical claims by employees who earlier filed

complaints and are now aggrieved by slights. Possibly, there

is room for a de minimis threshold, Williams v. Bristol-Myers

Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996), and certainly

good reason to insist on firm evidence of improper motive by

the employer. But given the impact on Randlett, and her

affidavits about customary practice, we cannot accept the HHS

view
that
a
refusal to transfer is automatically outside Title

VII.

We turn, therefore, to the district court's alternative

ground, namely, the lack of a "scintilla of evidence" to show

retaliation.

To
make
out a retaliation claim requires not only

an
adverse
employment action and previously protected conduct,

but
also
a
colorable showing that "a causal connection existed

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between
the
protected
conduct and the adverse action." Fennell

v.
First
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).

In
other
words,
the
adverse action must have been taken for the

purpose of retaliating. And to defeat summary judgment, a

plaintiff must point to some evidence of retaliation by a

pertinent decisionmaker. Id.

The
denial
of
a
permanent transfer to the Boston office is

the principal decision challenged by Randlett, and every

indication
is
that
this
decision was made by the HHS Office for

Civil
Rights
in
Washington. Randlett's request was made to the

Washington office and denied by the Washington office.

Randlett herself wrote to the Boston EEO officer a few days

after filing her complaint to say that the concern was "with

the
actions
of OCR [Office of Civil Rights] in Washington, not

Denver."

See
generally Long v. Eastfield College, 88 F.3d 300

(5th Cir. 1996).

It was thus incumbent on Randlett, to justify trial on

this
issue,
to
point
to
some evidence to show that officials in

the Washington establishment had refused a permanent transfer

to retaliate against Randlett for her 1975 complaint. See

Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991),
cert.
denied, 504 U.S. 985 (1992). This need to show a

connection exists whether Randlett was seeking to make out a

prima
facie
case
or
by
independent evidence challenging the HHS

explanation as pretext and urging independent evidence of

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discrimination. Fennell, 83 F.3d at 535. The latter is the

better
perspective
since
(even before the lawsuit began) Dick's

letter did explain HHS' reasons for denying a permanent

transfer.

The
difficulty for Randlett is that there is virtually no

evidence that HHS officials in Washington acted out of a

retaliatory
motive
in
denying the permanent transfer to Boston.

Randlett's
main
argument
for inferring an improper motive--that

is, a connection to her previous complaint--is based on her

affidavits about HHS practice in granting hardship transfers.

If HHS handed out transfers as a matter of course whenever an

employee showed a hardship need, it might well be suspicious

were Randlett alone singled out for a denial.

But
in
fact
there
is
no
showing that in denying Randlett's

request,
HHS
was departing from its usual practice. Carefully

read, all that the affidavits say is that HHS often granted

hardship transfers in similar cases; there is no indication

that HHS granted them invariably and without regard to the

convenience of the agency. And in this instance HHS, in

denying
Randlett's request, explained that reductions in force

("RIFs")
and
budget
cuts
had reduced its flexibility and it was

not convenient to the agency to transfer Randlett permanently

to Boston.

Randlett's only other evidence is several affidavits

describing
reassignments and hires within the Boston office in

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or around 1982. This confirms that there were some

reassignments
(due, at least in part, to the RIFs mentioned in

Dick's letter) and at least one new hire for a GS-12 position

after Randlett's resignation. But nothing in the affidavits

shows retaliation against Randlett. At most, one might

conclude that some other mix of reassignments might have

produced a GS-13 position for Randlett, doubtless to the

disadvantage of some other employee.

Whatever inference might be drawn from any of the

affidavits
has
to
be
set
against other facts. However careless

Jefferson may have been in arranging Randlett's timely

reassignment to Denver, higher officials in Washington--who

were responsible for refusing the permanent transfer--had

helped Randlett from the start, both by securing a temporary

position in Boston and by deferring her start date in Denver.

Taking everything together, no basis exists for a jury to

conclude that the permanent transfer was denied in order to

retaliate.

Our causation analysis would be quite different if

Randlett's claim related to Aguilar's action in refusing to

grant an additional temporary delay to Randlett to permit her

to delay reporting to duty in Denver in early 1983. The tone

of
Aguilar's
alleged
remarks, quoted above, might create a jury

issue as to Aguilar's own motive in refusing Randlett's

requests to him. This is so even though, absent the remarks,

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the Denver office had good reason for wanting Randlett to

report
to
duty
(apparently, it was paying for Randlett's detail

to Boston and had to leave her permanent position unfilled).

We need not decide this issue because Randlett has not

complained of the Denver office's denial of further temporary

deferrals in her reporting date. Rather, her 1982

administrativ
e complaint, which was the condition precedent to

this lawsuit, see 42 U.S.C. S 2000e-5(f), is directed at the

Washington
officials' denial of a permanent transfer. That is

the
relief
she seeks in the district court. No claim was made

concerning
Aguilar's denial of a further temporary deferral of

her return to Denver.

The statutory regime requiring exhaustion of

administrative
remedies
itself precludes any effort by Randlett

at this late date to develop and pursue a new charge directed

against Aguilar's own conduct in refusing further deferrals.

Lattimore

v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

Nor is this some slip of the pen: everything in Randlett's

situation makes clear that the central grievance relates to

Washington's denial of a permanent transfer to Boston.

Accordingly, Aguilar's actions in Denver, whatever their

motive, would not support a trial of the only claims that

Randlett has made and preserved.

No one can view with pride HHS' record of delay in

investigating this case or fail to sympathize with Randlett's

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predicament--
a job in one city and an aging parent in another.

At oral argument, we forcefully urged the parties to seek a

settlement and asked them to use our court's settlement

program, delaying this decision until we were advised that

efforts
at
settlement had failed. It will now be obvious that

both sides would have gained through a settlement.

In sum, we affirm the decision of the district judge on

the grant of summary judgment, although our reasoning differs

in certain respects, and we decline to order costs for either

side. It appears from the briefs and oral argument that a

ministerial
issue
relating to the calculation of certain health

insurance
benefits due to Randlett remains to be resolved. We

therefore remand the case to the district court for this

limited purpose.

It is so ordered.

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