United States Court of Appeals
For the First Circuit
No. 07-1539
CYNTHIA A. DECAIRE,
Plaintiff, Appellant,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court issued on March 11, 2008 is
corrected as follows:
On page 2, line 17, add as the last sentence of the paragraph,
after "any witness.": "The facts of the record do not support the
conclusions reached."
On page 14, in the first line of footnote 4, replace "EEO"
with "Equal Employment Opportunity office".
On page 28, line 11, "he said could not trust" should be
replaced with "he said he could not trust".
On page 43, line 3, add as the last sentence of the paragraph,
after "Id. at 254.": "We find the district court's theory is not
adequately supported by the record, as we explain below."
On page 43, line 3, at the conclusion of the sentence added
above that ends "not adequately supported by the record, as we
explain below." insert the following footnote:
We are concerned that the district court's
utilization of a theory not advanced by either party may
have prejudiced the parties in this case. That is not
invariably true. Judges, like juries, may draw
inferences, so long as they are supported by the
evidence. Parties, it should be noted, are always free
to move in the district court for reconsideration. But
the analytic structure of McDonnell Douglas requires the
plaintiff to show that defendant's proffered non-
discriminatory motive is pretextual; that can be
difficult to do without a clear articulation of
defendant's purported motive. Although district courts
sitting for bench trials are entitled to draw inferences
from the evidence presented, here the court's spontaneous
introduction of a new theory of justification may have
prejudiced the plaintiff's ability to show pretext and
the defendant's view of what the case was about. Our
holding does not rest on possible prejudice, though.
On page 43, line 4, remove the whole paragraph beginning with
"We have great concern over . . . ."
On page 43, line 19, remove both the footnote call "11" after
"relied," and the corresponding footnote, formerly footnote 11,
that stated: "If it had done so, plaintiff would have contested
whether the personal loyalty argument was a legitimate defense."