Anderson v. Brennan

United States Court of Appeals
For the First Circuit

Nos. 17-2162
17-2170

DIPING Y. ANDERSON,

Plaintiff, Appellant/Cross-Appellee,

v.

MEGAN J. BRENNAN, Postmaster General,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
and Katzmann, Judge.*

Emily Smith-Lee, with whom Smith Lee Nebenzahl LLP was on
brief, for Diping Anderson.
Jennifer Utrecht, Appellate Staff, Civil Division, with whom
Chad A. Readler, Acting Assistant Attorney General, Andrew E.
Lelling, United States Attorney, Jason C. Weida, Assistant United
States Attorney, and Marleigh D. Dover and Andrew Rhorbach,
Appellate Staff, Civil Division, were on brief, for Megan Brennan.

* Of the United States Court of International Trade,
sitting by designation.
December 14, 2018
 LYNCH, Circuit Judge. In the end in these cross-appeals

after a bench trial, we leave the parties just where they were, as

we see no error by the trial court.

Plaintiff Diping Anderson was a Postal Police Officer

(PPO) employed by the U.S. Postal Service and terminated on

September 9, 2013. Her Title VII lawsuit alleged that her

termination as a PPO was unlawfully discriminatory on the basis of

race and national origin, and independently was in retaliation for

her having filed earlier Equal Employment Opportunity (EEO)

complaints.

After a seven-day bench trial, the district court

concluded that Anderson was not discriminated against but that the

decision to terminate her employment, rather than impose lesser

discipline, was in retaliation for her protected conduct -- the

assertion of her EEO rights. The Postal Service appeals that

ruling here and Anderson appeals from the remedy awarded -- back

pay, but not reinstatement or front pay. We affirm the district

court's rulings.

I.

We take the facts as found by the district court,

consistent with record support. Nevor v. Moneypenny Holdings,

LLC, 842 F.3d 113, 116 (1st Cir. 2016).

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A. Background

Diping Anderson was raised in Shanghai, China. She

immigrated to the United States in 1990 and became a U.S. citizen

in 1993. She began work for the Postal Service in 1995, first as

a letter carrier, then as a window clerk. In 2000, she became a

PPO. In her first sixteen years of employment with the Postal

Service, from 1995 to 2011, Anderson was never disciplined.

In 2011, Anderson took time off for a workplace ankle

injury. She reported back to work on May 1, 2011, with a doctor's

note approving her return. Her supervisor, Captain Gerald

Harrington, refused to allow Anderson to return to work, for a

reason not specified in the record. On May 12, 2011, Anderson

filed a request for EEO pre-complaint counseling, alleging race

discrimination by Captain Harrington. Anderson returned to work

later, at a time not specified in the record.

On May 23, 2011, an EEO dispute resolution specialist

emailed Captain Harrington and then-Sergeant Peter Ford to inform

them of Anderson's EEO filing. The specialist asked to schedule

a redress conference.

On May 21, 2011, Anderson had been assigned to check the

identification of people entering the employee entrance of the

Boston General Mail Facility. Anderson got a call informing her

that her mother had been admitted to a hospital, so she left in

the middle of her shift. She did not get prior approval for this

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departure, but she filled out an emergency leave request form and

left it on the duty sergeant's desk. Then-Sergeant Ford approved

this emergency leave request on May 24, 2011.

Anderson reported to work the next day, May 25, 2011, to

find a broken and unstable stool in place of her normal chair, and

attempted to borrow a different chair from a nearby office. Then-

Sergeant Ford told her, "No. This chair is not authorized."

Anderson brought the matter to Captain Harrington. She

told Harrington that she could not complete her job assignment

without a standard-size chair because of her ankle injury. She

added, "I cannot get on the [stool]. Even if I get on, I have a

hard time getting off." Harrington responded, "If you don't like

it, go home." There is no evidence that he had treated others

similarly. Anderson said that she would leave, that she wanted to

be put back on workers' compensation status, and that she would

come back to work when the broken stool was replaced. Anderson

did not hear back from Captain Harrington.

Anderson did not report to work on May 26, 2011. Then-

Sergeant Ford called to ask why she was absent. Anderson said

that Captain Harrington had told her to go home. Ford told

Anderson that he would consider her to be on sick leave.

Later that day, Ford changed the status of Anderson's

May 21 leave request (from when Anderson's mother was in the

hospital) from approved to "AWOL" (Away Without Leave). A note on

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the leave request form said that Anderson's leave status was

"[c]hanged to AWOL per Capt. H[arrington]." The Postal Service

offered no evidence which explained Captain Harrington's decision

to reverse Ford's prior approval of Anderson's leave.

On June 15, 2011, Anderson attended an EEO redress

conference with Captain Harrington, then-Sergeant Ford, and an EEO

mediator, in response to Anderson's May 12 EEO request for pre-

complaint counseling. Anderson testified that Captain Harrington

and then-Sergeant Ford refused to discuss her allegations of

discrimination and told her to file a formal EEO complaint.

On June 24, 2011, then-Sergeant Ford issued Anderson a

seven-day suspension for having left her assigned post on May 21,

25, and 26, 2011 (when no stool was provided), before being

properly relieved or dismissed. This was the first discipline

Anderson received as a Postal Service employee.

Around this same time, a different PPO, Martha Barris,

had several conversations with Captain Harrington in which

Harrington said that he found Anderson's EEO complaints

"distasteful" and that he did not understand why Anderson was

filing them.

Anderson later filed a complaint with the EEOC about the

seven-day suspension, asserting that the suspension was racially

discriminatory. An EEOC Administrative Judge dismissed Anderson's

complaint in September 2012 because Anderson had failed to identify

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any similarly situated comparator outside her protected group who

was treated more favorably. The Postal Service issued a Notice of

Final Action in December 2012 adopting the Administrative Judge's

decision. Anderson did not appeal this decision.

In early 2012, Anderson filed several requests for pre-

complaint EEO counseling, alleging incidents of race

discrimination and retaliation that had taken place on several

dates from December 2011 to February 2012. The forms listed

Captain Ford as a responsible official, and then-Sergeant Joseph

Motrucinski was also listed on the last of the request forms.

On March 29, 2012, Anderson filed a formal EEO complaint

alleging race discrimination and retaliation by Captain Ford.1

Anderson voluntarily withdrew the complaint in its entirety in

October 2012. The record does not reveal the reason for this

withdrawal.

Later in 2012, Anderson received two Letters of Warning.

The first stated it came from Anderson's failure to carry her

firearm during the performance of her official duties. Anderson

did not file an EEO complaint in response to that first Letter.

1 Anderson entered into the district court record a
version of that EEO complaint that also listed then-Sergeant
Motrucinski as a responsible official. The Postal Service's
version listed only Ford. Anderson admitted that she added
Motrucinski's name sometime later. The district court found that
Anderson had made this alteration to bolster her retaliation claims
against Motrucinski, and that this detracted from her credibility.

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 The second Letter, issued on August 29, 2012, stated it

came from Anderson's failure to properly protect and secure her

weapon. On September 11, 2012, Anderson filed another request for

EEO pre-complaint counseling, asserting that the second Letter of

Warning represented unlawful retaliation for her prior EEO

activity. Anderson named Captain Ford and then-Sergeant

Motrucinski as responsible officials.

About two weeks later, on September 26, 2012, Anderson

received a fourteen-day suspension.2 There were two bases stated

for this discipline. The first went back to July 2012, when then-

Sergeant Motrucinski told Anderson that she should not store her

weapon locker key inside the weapon locker itself, because doing

so was potentially dangerous (an unauthorized person might gain

access to the firearms). Anderson stopped storing her key in this

way. Even so, Sergeant Gregg McGee told then-Sergeant Motrucinski

that, on four separate occasions after, he found Anderson's weapon

locker key stored in her weapon locker. McGee, however, admitted

that he did not confront Anderson on any of those four occasions,

that he did not tell any of her supervisors, and that he took no

pictures of the alleged infractions, as was his normal practice.

2 To be more precise, Anderson received a Letter of Warning
in Lieu of a Fourteen-Day Suspension. This Letter carries the
same weight as a fourteen-day suspension, but does not require the
PPO to take time off work. The district court referred to this
discipline as a "fourteen-day suspension." For the sake of
clarity, we do too.

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The district court found McGee's testimony "unlikely."3 Anderson

v. Brennan, No. CV 14-13380-PBS, 2017 WL 1032502, at *6 (D. Mass.

Mar. 16, 2017), on reconsideration in part, 254 F. Supp. 3d 253

(D. Mass. 2017).

Anderson's Letter said the second basis for discipline

involved Anderson's loss of keys. On August 17, 2012, Anderson

had left her keys in the keyhole on the weapon room door at the

end of her shift. Anderson realized that she was missing her keys

when she arrived for her shift the next day. The keys were

recovered and returned to her the day after that.

Anderson was instructed three times to complete an

incident report about the misplaced keys. The first two

instructions came from Sergeant Pare. Anderson did not comply.

Then-Sergeant Motrucinski also told Anderson to complete an

incident report about the misplaced keys. Anderson responded that

an incident report was unnecessary because she had her keys back.

Motrucinski asked her, "Are you refusing my direct order to

complete the incident report?" Anderson replied, "yes, I refuse,"

and left Motrucinski's office.

On November 16, 2012, Anderson attended an EEO redress

conference concerning her September 11, 2012 request for EEO pre-

3 On September 5, 2012, then-Sergeant Motrucinski asked
Anderson if she had ever left her weapon locker key in the weapon
locker since their discussion on July 18, 2012. Anderson replied,
"No, never."

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complaint counseling. In addition to Anderson, PPO Barris, Captain

Ford, then-Sergeant Motrucinski, and an EEO mediator attended. At

the conference, Ford and Motrucinski proposed as a resolution of

the matter that if Anderson resigned from her position as a PPO,

her disciplinary record would be wiped clean. They said she could

then take a position as a post office clerk. Ford and Motrucinski

otherwise refused to discuss the disputes.

Barris, the other PPO at the redress conference, had

further conversations with Captain Ford about Anderson's EEO

activity around the same time. In one conversation, Ford got upset

about Anderson's EEO complaints and yelled, "How dare she do this

to me? I've been nothing but nice to her." Captain Ford also

said, referring to Anderson, "I want her gone. I want her gone

before I retire. I want her gone." And Ford screamed to Barris

that he wanted "both of [them] gone" because he thought Barris was

encouraging Anderson to file the complaints.

In mid-December 2012, Anderson filed another request for

pre-complaint EEO counseling, charging Captain Ford and then-

Sergeant Motrucinski with race discrimination and retaliation for

an incident on October 19, 2012. That incident involved Anderson's

removal from the acting sergeant's list following her fourteen-

day suspension. A PPO on the acting sergeant's list may fill in

to supervise a shift (though the PPO acting as sergeant has limited

disciplinary authority).

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 On December 28, 2012, Anderson filed a formal complaint

with the EEOC charging Captain Ford and then-Sergeant Motrucinski

with race discrimination and retaliation.

Anderson's termination as a PPO took place about six

months later. On the morning of June 6, 2013, a fire at the

Brockton, Massachusetts mail processing and distribution center

left the building flooded and without power. The doors were left

open to air out smoke from the fire, and the side of the building

had a gaping hole about 100 feet long and taller than a person.

The building was in use otherwise.

At around 2:00 p.m., the inspector service decided to

send PPOs to help the postal inspectors maintain building security.

The PPOs were to provide a visible police presence, to prevent

onlookers from getting hurt, and to prevent unauthorized access.

Anderson was the first PPO to arrive, at about 2:15 p.m.

At some point in the afternoon, Postal Inspector

Patricia Rebello assigned Anderson to guard the hole in the

building's wall. Rebello told Anderson it was necessary to have

an officer present because of the people trying to access the

building. Rebello specifically instructed Anderson to stay out of

her vehicle and to walk around her assigned area.

Inspector Rebello checked on Anderson that afternoon,

between 4:00 p.m. and 5:00 p.m. Rebello found Anderson in the

rear passenger seat of her police cruiser with her head tilted

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back, appearing to be sleeping. Rebello said it took several tries

to rouse Anderson. Rebello told her, "You're not supposed to be

in here sleeping" and that "You're supposed to have officer

presence. You're not to sleep in the vehicle. You're to be out

of the vehicle." Anderson responded, "Oh, okay. I just sat down."

Anderson testified that she was not sleeping. The

district court credited this testimony. See Anderson, 2017 WL

1032502, at *8. The record includes Anderson's cell phone call

log, which shows several calls between 4:00 and 5:00 p.m. The

district court found it "unlikely that [Anderson] fell asleep in

the car between her phone calls." Id. Even so, the district court

found that Anderson had disobeyed Rebello's instructions by

sitting in her cruiser. Id.

Another Postal Inspector observed Anderson, again in her

cruiser, on another cell phone call at around 6:00 p.m. Anderson

did not respond to that Inspector's presence. The district court

found that "[w]hen Anderson was sitting in her cruiser, she was

inattentive and could have appeared to be asleep to a passerby."

Id.

On June 12, 2013, Acting Captain Motrucinski placed

Anderson on pre-investigation emergency non-pay status4 for her

4 The Postal Service's collective bargaining agreement
with its PPOs provides that a PPO "may be immediately placed in an
off-duty status (without pay) by the Employer, but remain on the
rolls where the allegation involves . . . failure to observe safety

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"misconduct" at the Brockton facility. The district court found

this action "unwarranted as there was no emergency."5 Id.

While Anderson was suspended, the Postal Service Office

of Inspector General (OIG) investigated the Brockton incident.

The OIG interviewed Captain Motrucinski on June 25, 2013, and

Anderson and several Postal Inspectors the next week. The OIG

report summarized statements by the interviewees but made no

factual findings about what took place at Brockton.

On September 9, 2013, Captain Motrucinski issued

Anderson a Notice of Removal for failure to perform her duties.

The Notice explained:

Despite having been placed on full and proper
notice that you were to provide a Uniformed
presence at the site, you were observed
sitting Inside your Postal Police vehicle
('cruiser') when you should have been standing
outside the cruiser as a visible presence to
prohibit unauthorized access.

The Notice then conducted a penalty analysis. It emphasized the

"serious nature" of Anderson's offenses and specifically

referenced three prior disciplinary actions: (1) the June 24, 2011

seven-day suspension; (2) the August 29, 2012 Letter of Warning;

and (3) the September 26, 2012 fourteen-day suspension. The Notice

rules and the Security Force regulations . . . . The PPO shall
remain on the rolls (non-pay status) until disposition of the case
has been made."
5 Anderson later grieved the emergency suspension and
received back pay for her period of emergency nonduty status.

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concluded that "there [wa]s no penalty short of removal adequate

to deter [Anderson] from such conduct in the future." Inspector-

in-Charge Kevin Niland, who oversaw a seven-state region, reviewed

the OIG's report and concurred in Motrucinski's decision.

At trial, the district court asked Motrucinski, "If

[Anderson] had a less severe set of prior disciplinary warnings

and suspensions, would you have removed her?" Motrucinski

responded, "Possibly. The serious nature of the entire event that

day was of great concern to me."

In November 2013, Anderson filed an EEO complaint

against Captain Motrucinski challenging her removal as racially

discriminatory and retaliatory. The Postal Service appears to

have issued a final agency decision dismissing the complaint

sometime later, but the exact details of the agency decision and

its date are not in the record.

B. Procedural History

Anderson timely filed suit challenging her removal. Her

federal complaint did not seek damages stemming from prior

disciplinary actions taken against her (her June 2011 suspension,

her August 2012 Letter of Warning, and her September 2012

suspension). And she did not dispute that her conduct during the

Brockton fire warranted discipline. Her claim was that the

penalty, termination of employment, was disproportionate, and

resulted from discrimination, and independently, from retaliation.

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Anderson sought reinstatement as a PPO, back pay, lost pension and

medical benefits, earned sick leave, emotional distress damages,

and attorney fees.

1. Initial Decision

Because Anderson did not appeal from the finding against

her on her discrimination claim, we focus on each side's arguments

as to the district court's finding of liability on her retaliation

claim. The court determined that "Anderson's misconduct at the

Brockton facility merited discipline for two legitimate,

nondiscriminatory reasons": (1) Anderson's inattentiveness in the

discharge of her duties, and (2) her disregard for the instructions

of her supervisors during an emergent situation. Anderson, 2017

WL 1032502, at *11. The court then found that the penalty of

removal was disproportionate and retaliatory. Id. at *13.

The court initially reasoned, in part, that two alleged

comparators -- PPOs Healey and Pasquale -- who "regularly fell

asleep on duty" were not terminated and that they were allowed to

retire in 2005 and 2007, respectively. Id. at *12. Their

supervisor had imposed no discipline on them, despite the multiple

occasions on which Healey and Pasquale were found sleeping, but

instead simply told them to get coffee and splash water on their

faces. Id.

Healey and Pasquale both worked the "graveyard shift"

and performed the type of access control now done by private

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contractors. At trial, Motrucinski testified that falling asleep

during "post coverage" handled by Healey and Pasquale was "less

dangerous" than being inattentive during an emergent situation

because post coverage involves "pretty much a static environment."

Acknowledging these differences, the district court concluded

that, "in light of the lax treatment of similarly situated white

PPOs, [Anderson's] removal was disproportionate and supports a

claim of retaliation particularly in light of the temporal

proximity to Anderson's EEO complaints." Id. at *13.

The district court also found that the seven-day

suspension (in 2011), which then-Sergeant Ford imposed on

Anderson, "had no legitimate, non-retaliatory justification." Id.

And it found that the fourteen-day suspension (in 2012) was too

severe a punishment for Anderson's infractions. Id. at *16. The

court then determined that if these disciplinary incidents had not

been considered, "Anderson would not have been removed." Id.

These were not the only bases for the district court's

finding of retaliation. Significantly, "the evidence at trial

showed [the district court] that Captain Motrucinski's removal of

Anderson was motivated by retaliation even if her three prior

disciplinary actions were taken as a given." Anderson v. Brennan,

254 F. Supp. 3d 253, 257-58 (D. Mass. 2017).

After the evidence closed, the court permitted both

sides to make simultaneous post-trial findings, but did not allow

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any replies. In her post-trial findings, Anderson stated for the

first time that, while her preferred remedy was reinstatement as

a PPO, she would also accept reinstatement as a full-time window

clerk, a job she once held, so long as she was given twenty-one

years' seniority. Failing that, she requested five years' front

pay.

The Postal Service argued in its simultaneous post-trial

findings that Anderson was not entitled to reinstatement and that

reinstatement would be impracticable "because of the obvious

antagonistic relationship demonstrated at trial between her and

her former supervisors." The Postal Service also argued that

Anderson was not entitled to monetary recovery, including front

pay.

After taking these submissions, the district court

concluded that reinstatement as a PPO was inappropriate because

Anderson had an "irreparably antagonistic" relationship with the

leaders of the "small workforce of PPOs" in the Boston area.

Anderson, 2017 WL 1032502, at *17. The court instead awarded

Anderson reinstatement as a window clerk because "[r]einstatement

is the 'preferred remedy under Title VII.'" Id. (quoting Valentín-

Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 105 (1st Cir.

2006)). (This would change on reconsideration.)

The court also awarded Anderson attorney fees; $223,164

for three years of back pay; and $25,000 in compensatory damages.

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Id. at *19. The court later adjusted this amount to give Anderson

3.3 years of back pay, granting her a total award of $278,760,

plus attorney fees. Anderson, 254 F. Supp. 3d at 260.

2. Reconsideration

The parties cross-moved for reconsideration on liability

and damages.

a. Liability

The district court rejected the Postal Service's

arguments attacking its liability finding. Id. at 256-59. The

court explained that "the Postal Service makes a strong argument

that a Title VII plaintiff should be barred from attacking an old,

unchallenged retaliatory sanction that underpins a termination in

a progressive discipline system." Id. at 257. But the court

determined that it could consider these incidents as "background

evidence" that Motrucinski had a retaliatory motive. Id. at 258

(quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977)). The court noted that Captain Ford, who had ordered

Anderson's first suspension, had made comments expressing his

distaste for Anderson's EEO filings. Id. The court also noted

that Motrucinski had issued the second (unjustifiably severe)

suspension only two weeks after Anderson named him in an EEO pre-

complaint counseling form, which the court concluded evidenced his

own retaliatory animus. Id.

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 "By itself," the court explained, "the fact that the

Brockton incident was six months after EEO activity (and Anderson's

subsequent removal was nine months removed) might not permit an

inference of retaliation." Id. at 258-59. But the court found

that its conclusion that Motrucinski had issued discipline it found

to be in retaliation, together with "evidence that removal was a

disproportionate level of discipline," supported an inference of

retaliatory motive. Id. at 259.

The court also rejected the argument that Healey and

Pasquale were not appropriate comparators. Id. Even acknowledging

differences between those PPOs and Anderson, it found that the

stark difference in their treatment supported a finding of

retaliation. Id.

b. Remedy -- Denial of Reinstatement to Window Clerk
with Seniority

In its motion for reconsideration, the Postal Service

argued that the court's award of the newly requested relief of

reinstatement of Anderson to a position as a window clerk with

seniority would conflict with separate Postal Service collective

bargaining agreements, which require such window clerk employees

to begin a new period of seniority upon reinstatement or return to

a position. It attached those collective bargaining agreements

and an affidavit to that effect.

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 Anderson submitted an affidavit repeating her testimony

that at a previous EEO redress conference she had received offers

that if she settled this matter and resigned her position as a PPO

the Postal Service would give her a position as a window clerk

with her seniority intact. Her affidavit also stated that a

representative for the PPO union told her in February 2014 that

she could have a position as a Postal Service custodian, with

seniority intact, in settlement of her claims.

After examining both parties' positions, the court

determined "in its equitable discretion, that front pay is a more

appropriate remedy than reinstatement to a window clerk position."

Anderson, 254 F. Supp. 3d at 261. Since the trial record contained

no evidence about how much longer Anderson -- who was then sixty-

two years old -- would have worked, the court ordered the parties

to supplement the record with evidence about the amount of front

pay. Id. The court also allowed Anderson to file a late petition

for attorney fees. Id. at 262.

c. Remedy -- Denial of Front Pay

Anderson requested $764,360 in front pay, representing

"the equivalent of eight years continued compensation by USPS less

her anticipated income from alternative employment during those

[eight] years." Anderson stated that there is no mandatory

retirement age for PPOs. In an affidavit, she stated that she,

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then nearly sixty-two years old, had intended to work until she

was seventy. Anderson also sought $286,275 in attorney fees.

The Postal Service argued that the district court should

not award front pay because Anderson had the opportunity, and the

obligation, to present evidence regarding front pay at trial. She

had failed to do so. The Postal Service also argued that the

district court could not rely on post-trial supplemental evidence

to award front pay unless it either reopened the record or

scheduled an evidentiary hearing on front pay.6 The Postal Service

did not object to Anderson's petition for attorney fees.

On July 24, 2017, seven months after evidence had closed

at trial (on December 20, 2016), the court denied Anderson's

request for front pay. Anderson v. Brennan, 267 F. Supp. 3d 270,

272 (D. Mass. 2017). The court explained that it would be

inappropriate to reopen the trial record without also providing

"'the standard prophylaxis that generally obtains at trial,'

including 'the right to object to evidence, the right to question

its source, relevance, and reliability, the right to cross-examine

its proponent, and the right to impeach or contradict it.'" Id.

at 273 (quoting Lussier v. Runyon, 50 F.3d 1103, 1113 & n.13 (1st

6 In the alternative, the Postal Service argued that the
existing back-pay-damages award already made Anderson whole, that
Anderson failed to mitigate her damages, that any front-pay award
would be zero, and that any front-pay award would be subject to
offsets.

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Cir. 1995)). The district court, rather than reopening, instead

exercised its discretion "to disregard the post-trial evidence

submitted by both parties on the appropriate amount of front pay"

and to "rely solely on the original bench trial record." Id.

"The trial evidence on the appropriate remedy," the

court noted, was "sparse." Id. "There was no trial evidence on

the length of time for which it would be appropriate to award front

pay," "on how long Anderson intended to remain a PPO," or "on what

age PPOs tend to retire." Id. And though Anderson's post-trial

submission had claimed five years' front pay, the court could

"discern no basis in the trial record for why five years would be

appropriate." Id. at 273 n.1. "Because Anderson had full

opportunity to enter trial evidence" on front pay "but failed to

do so," the court decided to award no front pay, rather than

speculate about its amount. Id. at 274. The district court did,

however, grant Anderson's request for $286,275 in attorney fees.

Id.

d. Denial of Anderson's Motion to Alter or Amend the
Judgment or for New Trial

Anderson moved to alter or amend the judgment or, in the

alternative, for a new trial on remedies. She argued that the

court erred when it reconsidered its prior award of reinstatement

because, in doing so, it had considered the Postal Service's

collective bargaining agreements with the American Postal Workers

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Union (which represents window clerks, not PPOs), which were not

in the trial record. (Anderson had not previously made this

argument.) Anderson also argued that the court erred by failing

to consider her supplementation of the record on the issue of front

pay.

Anderson made no offer of proof, and she did not offer

anything to dispute the Postal Service's reading of the collective

bargaining agreements. And she gave no example in which an

employee had been reinstated with seniority to a window clerk

position. Anderson did refer to a situation in which an employee

had been reinstated with seniority to a janitorial position. She

said janitors were represented by the same union as window clerks,

but offered no proof that those employees were covered by the same

collective bargaining agreements.

The district court rejected Anderson's arguments, and

gave three reasons. Anderson v. Brennan, No. 1:14-cv-13380-PBS,

slip op. at 2-3 (D. Mass. Sept. 26, 2017). First, it found Anderson

had waived the argument that the court could not consider the

collective bargaining agreements by failing to raise that

objection in her opposition to reconsideration of reinstatement.

Id. Second, the court said that, even absent Anderson's waiver,

there was no error in considering the collective bargaining

agreements without reopening the trial record because the

documents "are subject to judicial notice." Id. at 3. Third, the

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court noted that awards of front pay are discretionary, and that

it acted within its discretion when it declined to reopen the

evidentiary record because "Anderson had full opportunity to

introduce trial evidence on the appropriate amount . . . but failed

to do so." Id.

II.

A. USPS Appeal from Decision on Liability for Retaliation

To bring a successful retaliation claim under Title VII,

a plaintiff must prove that (1) "she engaged in protected activity

under Title VII," (2) "she suffered an adverse employment action,"

and (3) that "the adverse employment action was causally connected

to the protected activity." Ray v. Ropes & Gray LLP, 799 F.3d 99,

107 (1st Cir. 2015) (quotation marks omitted). In this context,

a causal connection requires "but-for causation." Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). So a Title VII

plaintiff must show that her protected activity was a but-for cause

of the adverse employment action against her.

The district court concluded that Captain Motrucinski

had a retaliatory motive in choosing to terminate Anderson's

employment as an appropriate level of discipline. We review the

factual conclusion "regarding an employer's intent" for clear

error, DeCaire v. Mukasey, 530 F.3d 1, 21 (1st Cir. 2008), and

must affirm "unless, after carefully reading the record and

according due deference to the trial court's superior ability to

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judge credibility, we form a strong, unyielding belief that a

mistake has been made," In re Pharm. Indus. Average Wholesale Price

Litig., 582 F.3d 156, 163 (1st Cir. 2009) (quoting Williams v.

Poulos, 11 F.3d 271, 278 (1st Cir. 1993)).

The district court made no such mistake. It concluded

that "sleeping on the job was not taken particularly seriously"

"in the Boston PPO workforce." Anderson, 254 F. Supp. 3d at 258.

It noted that, even beyond Boston, termination of employment of

PPOs was rare: "only five or six PPOs were terminated nationwide

in the past three years and nobody had been removed from the Boston

PPO service at any time within any witness's recollection." Id.

(emphasis added). And it considered the "history of interactions

between Captain Motrucinski and Anderson," as well as the

interactions between "Captain Motrucinski's predecessor, Captain

Ford," and Anderson. Id. All this "strong background evidence of

retaliation" led to the district court's finding "of present

retaliatory motive by Motrucinski" in his treatment of Anderson.

Id. at 259.

The Postal Service's arguments require no analysis

because they miss the mark. The Postal Service focuses on alleged

errors as to the consideration of comparators and of the prior

disciplinary acts. But it ignores the district court's conclusion

that, even apart from these two matters, the other evidence

supported a finding of retaliation anyway.

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 Our recitation of the record provides ample support for

the court's finding. We see no need to further discuss the Postal

Service's arguments.

B. Remedial Decisions

The procedural context in which the district court made

its ultimate remedial decisions does warrant more discussion. We

review a district court's decisions about the remedies of front

pay and reinstatement, including whether to take judicial notice

of facts, whether to reopen the record after trial, and whether to

grant a new trial, for abuse of discretion. See Franchina v. City

of Providence, 881 F.3d 32, 56 (1st Cir. 2018) (front pay); Kennedy

v. Town of Billerica, 617 F.3d 520, 527 (1st Cir. 2010) (new

trial); Prescott v. Higgins, 538 F.3d 32, 41 (1st Cir. 2008)

(judicial notice); Valentín-Almeyda, 447 F.3d at 104

(reinstatement); Lussier, 50 F.3d at 1113 (reopen the record). In

each instance, a district court has only abused its discretion if

it "indulged in a serious lapse in judgment." Desrosiers v.

Hartford Life & Accident Ins. Co., 515 F.3d 87, 91 (1st Cir. 2008).

In the end we cannot say that there was any abuse of

discretion. Anderson had a fair and ample opportunity to present

evidence and argument to the trial court during the trial, however

disappointed she is that her remedy did not go beyond her $253,760

(plus prejudgment interest) back-pay award, her $25,000

compensatory-damages award, and her $286,275 attorney-fee award.

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There was nothing unfair about the trial court's application of

the Lussier standard to the post-trial proceedings.

1. Post-Trial Evidence

Anderson first argues that the district court erred in

relying on what she calls post-trial "evidence" to reconsider and

vacate its prior award of reinstatement to a position as a window

clerk with seniority. A district court may rely on facts that are

judicially noticeable even if obtained after trial. See Lussier,

50 F.3d at 1113-14.

This district court was also correct that Anderson's

objection to consideration of the collective bargaining agreement

is waived. A Rule 59(e) motion "is not the place to present

arguments that could, and should, have been raised before the

court's pulling of its judgment trigger." Markel Am. Ins. Co. v.

Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012).7

Even were the argument not waived, the district court

did not abuse its discretion. Generally, a court may consider

"documents the authenticity of which are not disputed by the

parties." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see

7 Anderson raises her own waiver argument. She says the
Postal Service should have raised its collective-bargaining-
agreement-based objections to reinstatement before judgment
issued. But the Postal Service had no occasion to present the
collective bargaining agreement earlier because Anderson had not
first requested reinstatement as a window clerk as an alternative
remedy until her post-trial proposed findings and conclusions of
law.

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also Lussier, 50 F.3d at 1114. The collective bargaining agreement

at issue here is just such a document. Cf. Minch v. City of Chi.,

486 F.3d 294, 330 n.3 (7th Cir. 2007). Anderson raises no actual

dispute about the collective bargaining agreement's authenticity.

And as the Postal Service notes, the agreement is publicly

available on the American Postal Workers Union's website.

In explaining why it was denying reconsideration, the

district court did say that it found no collective-bargaining-

agreement provision "that provides for rehire or reinstatement of

a window clerk with seniority intact." Anderson, 254 F. Supp. 3d

at 261. Anderson does not, even now, question the accuracy of

that statement by the court. The court determined, "in its

equitable discretion, that front pay [wa]s a more appropriate

remedy than reinstatement to a window clerk position." Id.

2. Reopening the Record

Anderson next argues that the district court's decision

not to reopen the record, combined with its statement about the

collective bargaining agreement, amounted to an abuse of

discretion. We have dealt with the latter part of the argument

alone; it does no better in combination. A district court's

decision to reopen the record "turns on flexible and case-specific

criteria." Davignon v. Hodgson, 524 F.3d 91, 114 (1st Cir. 2008).

These criteria include "whether (1) the evidence sought to be

introduced is especially important and probative; (2) the moving

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party's explanation for failing to introduce the evidence earlier

is bona fide; and (3) reopening will cause no undue prejudice to

the non-moving party." Id. (quoting Rivera–Flores v. Puerto Rico

Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995)).

When the district court considered awarding front pay,

it explained that "there is a lack of evidence in the record about

the appropriate amount of front pay" and ordered the parties to

supplement the record. Anderson, 254 F. Supp. 3d at 261. After

reviewing Anderson's request and the Postal Service's objections,

the district court "elect[ed] to disregard the post-trial evidence

submitted by both parties on the appropriate amount of front pay"

and to "rely solely on the original bench trial record." Anderson,

267 F. Supp. 3d at 273.

We described earlier Anderson's failure to create an

adequate evidentiary record at trial. Because Anderson had "full

opportunity to enter trial evidence on the appropriate amount of

front pay but failed to do so," the Court awarded none. Id. at

274.

In Lussier, we specifically stated the district court

could, "if it so elects, hold the parties to their proof at trial

and determine the front pay award on the existing record." 50

F.3d at 1115. The district court followed this path.

To be clear, there could be no claim that Anderson was

somehow lulled into ignoring her burden as to front pay. The

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district court explicitly raised the issue of front pay with

Anderson's counsel at trial. The court asked, "how do I think

about front pay, if I went that way?" The court warned that "I've

got nothing. I've got one slip of paper that I can see on what

she made at the Postal Police." And the district court told

Anderson's counsel, "Well, I would ask that you address [front pay

offsets] with respect to admissible evidence that I can look at."

Anderson failed to do so.

III.

We affirm the district court's judgments. No costs are

awarded.

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