Hazel v. Postmaster General

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1816

GEORGE E. HAZEL,

Plaintiff, Appellant,

v.

U.S. POSTMASTER GENERAL,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
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Before

Selya, Circuit Judge,
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Feinberg,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Stephen E. Kiley with whom Kiley & Hazel was on brief for
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appellant.
David G. Karro, Attorney, Appellate Division, United States
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Postal Service, with whom A. John Pappalardo, United States Attorney,
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Gwen R. Tyre, Assistant United States Attorney, R. Andrew German,
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Chief Counsel, Appellate Division, and Cynthia J. Hallberlin,
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Attorney, Appellate Division, United States Postal Service, were on
brief for appellee.

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October 14, 1993
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*Of the Second Circuit, sitting by designation.




















FEINBERG, Senior Circuit Judge. Plaintiff George E.
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Hazel appeals from a judgment of the United States District

Court for the District of Massachusetts, Robert E. Keeton, J.,

granting a motion by defendant-appellee Anthony M. Frank,

Postmaster General of the United States, for judgment on

partial findings pursuant to Fed. R. Civ. Proc. 52(c). Hazel,

a former postal employee, had alleged that the Postal Service

violated his civil rights when it fired him in retaliation for

providing legal advice to another postal employee in her sex

and age discrimination claims against the Postal Service. For

the reasons stated below, we affirm.



Background
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George Hazel joined the Postal Inspection

Service in 1971. The events giving rise to this action began

on August 27, 1984 when Hazel's immediate supervisor, John

Cinotti, gave him a "very good" evaluation only to have the

next higher supervisor, M. W. Ryan, change it to "good," with

the explanation that Cinotti had not justified the "very

good." Hazel thought Ryan was reacting to the fact that Hazel

was representing an Inspection Service clerk who had charged

Ryan with sex and age discrimination. Hazel thought his

suspicions were confirmed on September 5, 1984, when Ryan told

him he would be transferred from the Fraud Section, where

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Hazel had been for 13 years, to the Audit Section -- despite

the fact that he had no auditing or accounting background.

Moreover, according to Hazel, audit assignments, unlike fraud

assignments, are very undesirable.

After learning of Ryan's intention to reassign

him, Hazel contacted an Equal Employment Opportunity (EEO)

counselor with respect to the alleged employment

discrimination. Thereafter, Ryan sent written confirmation of

the reassignment, and Hazel responded as follows: "Since I

believe your written directive ... violates the law, I

respectfully refuse to accept the reassignment." Ryan warned

Hazel that his letter could "be considered evidence of refusal

to obey a direct order" and gave Hazel an opportunity to obey

by moving the reporting date back from October 15 to October

18, 1984. Instead of complying with the order, Hazel reported

for firearms training on the 18th, had lunch with a friend and

went home.

The next day, Ryan asked Hazel if he intended

to report for his new assignment, and Hazel did not answer the

question. Ryan then handed him a letter putting him in an

off-duty status. When Hazel protested this decision, Ryan

replied: "[Y]our placement in an off-duty status ... will ...

remain in effect until such time as you report for duty to

your new assignment." Hazel testified that he never attempted

to report to the new assignment after receiving that reply.

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Finally, on October 22, 1984, Ryan charged Hazel with, and

recommended removing him from the Postal Service for,

insubordination.

The Regional Chief Inspector accepted the

recommendation, and in a letter to Hazel, dated November 8,

1984, stated:

I find that the charge, insubordination, as
stated in the notice of October 22, 1984, is
fully supported by the evidence. You were
directed by Mr. M.W. Ryan, Inspector in Charge,
Boston Division, to report effective October
15, 1984 to Team Leader E.A. Jacobs for Job
Assignment #40. On that date, you directed a
letter to Mr. Ryan refusing to comply with his
directive.

. . .

On October 16, 1984, you were again ordered to
report to Job Assignment #40 no later than
October 18, 1984. As of October 19, 1984, you
had not reported as directed, so you were
placed in a non-duty non-pay status.

. . .

The position of Postal Inspector requires the
utmost individual loyalty, diligence and dedication in
the undertaking of assigned duties as needs of
the Service dictate. Accordingly, a supported
charge of insubordination is an extremely
serious and grave charge which will not be
condoned or tolerated.


The Chief Inspector removed Hazel from the Postal Service

effective November 23, 1984. In response to another appeal by

Hazel, the Chief Inspector stated:

Your failure to obey a direct order from the
Inspector in Charge is intolerable. This type

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of conduct is disruptive and undermines the
morale of the employees in the office.
Additionally, it is not in keeping with the
image and professional standards expected of a
Postal Inspector. Based on the nature of this
incident your placement in a non-duty non-pay
status was necessary and appropriate.


In January 1988, after exhausting his

administrative and EEO remedies, Hazel filed this action. It

came to trial in June 1992, almost eight years after Hazel's

removal for insubordination. After three days of a bench

trial, during which Hazel presented his case through the

testimony of seven witnesses including himself, defendant

Postmaster General moved for judgment on partial findings

pursuant to Fed. R. Civ. Proc. 52(c). The district judge

stated his findings of fact and conclusions of law in open

court, granted the motion and entered judgment for defendant.

This appeal followed.



Discussion
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Hazel's retaliation claim required him to show

a violation of either 29 U.S.C. 623(d), which forbids

discrimination against employees opposing age discrimination,

or 42 U.S.C. 2000e-3(a), which forbids retaliation against

employees opposing sex discrimination. Under either statute,

Hazel's initial burden was to "establish a prima facie case
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sufficient to permit an inference of retaliatory motive." The


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burden placed on a plaintiff at this stage "is not onerous."

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
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(1981). To state a prima facie claim of retaliation under
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Title VII, the plaintiff must show: "[1] protected

participation or opposition under Title VII known by the

alleged retaliator; [2] an employment action or actions

disadvantaging persons engaged in protected activities; and

[3] a causal connection between the first two elements[,] that

is [,] a retaliatory motive playing a part in the adverse

employment actions." Petitti v. New England Tel. & Tel. Co.,
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909 F.2d 28, 33 (1st Cir. 1990) (quoting Grant v. Bethlehem
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Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980)).
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Once the prima facie case is established, the burden
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of production, not persuasion, shifts to the defendant to

articulate a plausible, legitimate, and nondiscriminatory

justification for the employment decision. Petitti, 909 F.2d
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at 31. Once the employer proffers such a justification,

the McDonnell Douglas framework -- with its
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presumptions and burdens -- is no longer
relevant....the defendant's "production" (whatever
its persuasive effect) having been made, the trier
of fact proceeds to decide the ultimate
question....Thus, rejection of the defendant's
proffered reasons will permit the trier of fact to
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infer the ultimate fact...., [but] the plaintiff at
all times bears the "ultimate burden of persuasion."


St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993)

(emphasis in original) (citations omitted).


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The issue of retaliatory motive in an employment

discrimination case presents "a pure question of fact," and

the trial court's determination is reviewed under the clearly

erroneous standard. See Pullman-Standard v. Swint, 456 U.S.
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273, 287-88 (1982). Under the clearly erroneous standard, the

court's inference must be affirmed if it is "plausible."

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152
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(1st Cir. 1990).

Judge Keeton heard the testimony of seven

witnesses including Hazel and, as the trier of fact, was

entitled to draw his own reasonable inferences as to whether

Hazel was fired for a retaliatory reason. In his dispositive

ruling, the judge stated:


I cannot find that the discharge was motivated
by retaliation, or, to put it in language that
parallels many of the precedents here, I cannot
find that a retaliatory motive was a motivating
factor of the discharge, even when assuming
that the retaliatory motive was a motivating
factor of the downgrading of the rating from
very good to good and a motivating factor of
the reassignment.

The judge further said that

the plaintiff was not discharged, even by the
plaintiff's own proof, simply because of the
protected activity but instead was discharged,
by the plaintiff's own proof, because of
insubordination ..., a refusal to accept orders
and comply with them[.] [This] is documented
and undisputed under the plaintiff's own
evidence.



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On review to this court, we cannot say that

these findings of fact are clearly erroneous. To put it

another way, Hazel's admission that he refused to report for

work and the evidence that the Postal Service fired him for

that very reason provided a "plausible" basis for the district

court's finding that retaliation is not the most likely reason

Hazel was fired.

Hazel argues to us, as a procedural matter,

that the district court should have limited itself to

determining whether he proved a prima facie case and then
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waited to hear the Postmaster General's evidence and Hazel's

rebuttal case. It is true that in this type of litigation

courts generally wait until after a defendant has put on its

case to pass on the sufficiency of its nondiscriminatory

explanation. This is because nondiscriminatory explanations

usually do not surface fully until the defendant's case. But

here, Hazel, in his own case, introduced evidence that he was

discharged for insubordination as well as evidence purporting

to show that the insubordination charge was only a pretext for

firing him. In this court, Hazel points to no further

evidence that he was unable to present because the district

court's procedure took him by surprise. (Indeed, Hazel

apparently made no such claim in the district court).

Hazel also argues to us that his refusal to

work was an activity protected by the anti-retaliation

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statutes. However, he cites no persuasive authority for the

proposition that an employee claiming discrimination can on

that basis absolutely refuse to work where his employer

directs. On the contrary, the right to oppose discrimination

is not a right to refuse to work on account of discrimination.

We have held that a plaintiff goes "beyond the scope of

protected opposition" when he "damages the basic goals and

interests" of the employer, who has a "legitimate interest in

seeing that its employees perform their work well." Hochstadt
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v. Worcester Foundation for Experimental Biology, 545 F.2d
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222, 233 (1st Cir. 1976). The district judge could accept, as

he obviously did, the judgment of the Postal Service that

"insubordination is an extremely serious and grave charge,"

that it is "disruptive and undermines the morale of the

employees in the office," that it is "not in keeping with the

image and professional standards expected of a Postal

Inspector," and that, if proved, it should "not be condoned or

tolerated."

We are aware that the timing of Ryan's

downgrading of Hazel's evaluation and the subsequent transfer

have the smell of bureaucratic retaliation.1 Indeed, the

district judge assumed that to be so. Moreover, we are not

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1 We are also aware, of course, that the
Postmaster General did not present his case in the
district court.


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unsympathetic to Hazel's plight. After a successful career of

13 years in the Fraud Section, including responsibility for

major criminal investigations, Hazel obviously regarded his

reassignment to the Audit Section -- where his

responsibilities would have included such routine and

monotonous work as the adjustment of slip-and-fall cases up to

$5,000 -- as demeaning. Perhaps Hazel is arguing that his

refusal to work was not insubordination because he was

constructively discharged when Ryan reassigned him. But Hazel

could have taken the new job under protest while pursuing his

remedies. This he failed to do. The humiliation Hazel may

have felt in the new job is a far cry from the serious

hardship in cases where we have found constructive discharge.

See, e.g., Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir.
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1992).

Hazel relies on Curran v. Department of the
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Treasury, 714 F.2d 913 (9th Cir. 1983), for the proposition
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that an employee need not obey an improper order. The legal

issue there was whether the mandate of 5 U.S.C. 7701(c) and

7513 compelled the Merit Systems Protection Board (the Board)

to reinstate an employee who was removed for refusing to obey

an improper order that caused serious hardship. Putting to

one side the different remedial powers and obligations of the

Board in that case and the federal district court here, Curran
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is distinguishable. It is clear that the order that the

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plaintiff there refused to obey -- that he transfer from

Seattle to San Francisco -- would have imposed serious

hardships on him that could not be made good by returning him

a few years later at the end of administrative and legal

proceedings. 714 F.2d at 918. The plaintiff apparently

persuaded the court that "the transfer would threaten his

family's financial security, interfere with his wife's

employment, and prevent his completion of a graduate degree."

714 F.2d at 916. In contrast, Hazel's only concrete

complaints about being assigned to the Audit Section were that

audit assignments are boring (the work is "useless and

repetitive") and involve overnight travel. Yet, the district

court, as factfinder, was not even obliged to take this claim

of inconvenience at face value, given Hazel's admission that

another employee was given an assignment to the Audit Section

because it would not require her to travel.
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Finally, even if we assume, as did the trial

court, that Hazel's reassignment and downgraded performance

evaluation were the product of impermissible retaliation in

contravention of Title VII, he cannot recover any damages

because of his failure to mitigate by reporting to work in the

new post. And, granting equitable relief would be equally

futile. The failure to mitigate undercuts any claim for back

pay. As for reinstatement, we realize that our dissenting

brother suggests a remand so that the district court may

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consider ordering that statutory remedy by reinstating

plaintiff to his original "very good" rating and fraud

inspector's job. But the able district judge has already

considered this possibility by assuming that the demotion and

transfer were both unlawful and by specifically considering

whether plaintiff was entitled to "back pay or other remedies
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available under Title VII" (emphasis supplied). The judge
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nevertheless chose not to grant any relief on the record

before him. The judge certainly had discretion in this

respect, see Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,
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320-22 (1st Cir. 1989) (en banc), and, on the record before

us, we cannot say that he abused it. Under the circumstances,

a remand would serve no useful purpose and we will therefore

not order it. See Equitable Life Assurance Soc'y v. Porter-
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Englehart, 867 F.2d 79, 84 n.3 (1st Cir. 1989) (refusing the
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remedy appellant sought as "utterly pointless" because it

would leave her in no better position than she was during

litigation).

In sum, Hazel's proof was sufficient to justify

the district judge's finding that Hazel was fired for refusing

to report to work rather than for opposing discrimination.

Under the circumstances, the district court was entitled to

enter judgment for the Postmaster General at the close of

Hazel's case. Accordingly, the judgment of the district court

is Affirmed.
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STAHL, Circuit Judge, dissenting. Because I
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disagree with the majority's reading of the record, I would

remand in order to give the district court the opportunity to

consider restoration of plaintiff's "very good" rating and

reinstatement of plaintiff to his fraud inspector's job.

Given plaintiff's refusal to comply with a reassignment which

he alleged to have been unlawful and in retaliation for

protected behavior, the district court reasoned that it need

not reach those issues. This decision of the district court

was erroneous. Cf. Garcia v. Lawn, 805 F.2d 1400, 1401-02
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(9th Cir. 1986) (holding that district court was not without

power to reinstate plaintiff even though plaintiff had been

dismissed during the pendency of his case for failure to

report to an allegedly unlawful reassignment). Accordingly,

this case should be remanded for consideration of these claims

and possible equitable relief under Title VII.



















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