IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40313
Summary Calendar
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YOLANDA R. CASTILLO, Plaintiff-Appellant,
versus
POSTMASTER GENERAL ANTHONY M. FRANK,
Defendant-
Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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November 27, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Plaintiff-Appellant Yolanda R. Castillo ("Castillo") appeals
the final judgment of the district court in favor of Defendant-
Appellee Postmaster General Anthony M. Frank ("Postmaster")
adopting the magistrate judge's finding of no discrimination on the
basis of sex. We affirm.
FACTS AND PROCEDURAL HISTORY
Castillo was employed by the United States Postal Service as
a letter carrier at the Downtown Station in Corpus Christi, Texas
until her discharge on July 25, 1988. On June 9, 1988, she told
her immediate supervisor, Romera "Homer" Zuniga ("Zuniga") that she
had been attacked by an unknown black man at a location on her
delivery route. Zuniga reported the incident to the police and
postal inspectors, and then accompanied Castillo to a doctor who
examined and release her. Castillo was bruised on her right arm,
but did not suffer any major or debilitating physical injuries.
While still at the doctor's office, Zuniga filled out portions
of, and had Castillo complete and sign, a Federal Employee's Notice
of Traumatic Injury and Claim for Continuation of Pay/Compensation
and a Duty Status Report, certifying that Castillo had suffered an
on-the-job injury and requested a continuation of pay and
compensation for wage loss, if any.1 Castillo was also interviewed
by postal inspectors within one hour of the alleged attack.
The Postal Inspection Service began an investigation, but was
unable to uncover a suspect or any witness to the incident, so the
investigation was effectively closed. Approximately a week later,
the postal inspectors received an anonymous telephone call from an
individual who, after being assured that this individual's identity
would remain confidential, volunteered information that the alleged
assault had not occurred in the manner or place indicated by
Castillo, but rather that her injuries were the result of a
domestic disturbance at the home of one of her customers.
Based on the information provided by the confidential
informant, the postal inspectors reopened the investigation. The
postal inspectors again met with Castillo and offered her an
opportunity to amend her account of the incident, which she
declined to do. The postal inspectors then proceeded to attempt to
1
Castillo, however, returned to work the next day.
2
verify the information they received from the informant. They
visited the home of Elroy Chandler ("Chandler"), whose name and
address they obtained from the informant. Chandler told the postal
inspectors that he had grabbed Castillo by the right arm, and he
showed the inspectors how he did it.
The results of the postal inspector's second investigation
were reported in an Investigative Memorandum to the Postmaster in
Corpus Christi. Based on the information contained in the
Investigative Memorandum, Zuniga took steps to have Castillo
removed. Castillo was issued a notice of removal on June 22, 1988,
based on her fraudulent injury claim and improper conduct in
violation of the U.S. Postal Service's Standards of Conduct.
Castillo unsuccessfully appealed her removal through the
grievance-arbitration procedure contained in the applicable
collective bargaining agreement. The Arbitrator denied Castillo's
grievance, finding that the Postal Service had met its burden of
establishing good cause for the notice of removal or rather, that
Castillo acted dishonestly in wilfully filing a fraudulent injury
claim.
Castillo also filed an informal complaint of discrimination
with the Postal Service, and later filed a formal complaint on
August 26, 1988. Both the informal and formal complaints were
investigated, but settlement attempts proved unsuccessful. On
January 10, 1989 a Notice of Proposed Disposition was issued by the
Postal Service proposing a finding of no discrimination. In
response to the notice, Castillo requested a hearing before an
3
Administrative Law Judge ("ALJ"). At the conclusion of the
evidentiary hearing, the ALJ issued a Recommended Decision
recommending a finding of no discrimination on the basis of age and
national origin, but an affirmative finding of discrimination on
the basis of sex. The ALJ further recommended reinstatement,
appropriate back pay and benefits and attorneys' fees and costs.
However, on October 3, 1989 the Postal Service issued a final
decision finding no discrimination on the basis of age, national
origin, or sex.
On October 31, 1989, Castillo filed a complaint in federal
court against the Postmaster alleging that her termination was
based on unlawful sex, national origin and age discrimination in
violation of Title VII.2 On June 7, 1991, Castillo filed a motion
to compel the identity of the confidential informant. A magistrate
judge heard argument and issued an order on July 2, 1991 granting
Castillo's motion to compel. On July 5, 1991, the district court
issued an order referring the case to the magistrate judge as
special master pursuant to FED. R. CIV. P. 53 and 42 U.S.C. § 2000e-
5(f)(5).
On July 12, 1991, the Postmaster filed objections to the
magistrate judge's July 1, 1991 disclosure order on the basis that
the requested information concerning the confidential informant was
privileged. After hearing argument from the parties, the
magistrate judge entered an order on August 26, 1991 overruling the
2
She later amended her complaint and dropped the age and
national origins discrimination claims.
4
Postmaster's objections and again ordered disclosure of the
confidential informant's identity. On September 5, 1991, the
Postmaster renewed his objections to the magistrate judge's
disclosure order of August 26, 1991.
The district court issued an order on August 25, 1991 denying
the Postmaster's objections without prejudice with leave to file
authority establishing the court's authority to review a ruling by
a magistrate judge acting as a special master on a non-dispositive
motion. After the Postmaster filed his authority, a hearing was
held, at which time the district court requested an in camera
review of the information concerning the confidential informant.
After receiving the sealed information, the court issued an order
on June 3, 1993 denying the motion to compel on the basis that the
identity of the confidential informant is privileged and exempt
from discovery under Rule 26(b)(1), and setting aside the
magistrate judge's July 2, 1991 disclosure order.3
The case was tried before the magistrate judge on November 21-
22, 1994. In his Memorandum and Recommendations the magistrate
judge concluded that there was insufficient credible evidence to
prove disparate treatment of Castillo based upon her sex. The
magistrate judge found that Castillo "failed to prove by a
preponderance of the evidence that the [Postmaster]'s reasons for
her discharge or failure to settle her grievance were pretextual
and/or were motivated by the unlawful consideration of her sex,
3
Castillo filed an interlocutory appeal, which was later
dismissed after the district court denied Castillo's request for
a 28 U.S.C. § 1292(b) determination.
5
rather than by valid labor and management reasons." On March 6,
1995, the district court issued an order adopting the Memorandum
and Recommendations of the magistrate judge, and final judgment was
entered in favor of the Postmaster on March 8, 1995.
DISTRICT COURT'S REVIEW OF DISCLOSURE ORDER
Castillo contends that after the district court referred the
case to the magistrate judge, acting as a special master pursuant
to FED. R. CIV. P. 53 and 42 U.S.C. § 2000e-5(f)(5), the court lost
its authority to review the magistrate judge's initial order
granting Castillo's motion to compel the identity of the
confidential informant.4 She argues that the district court had no
authority to overrule the magistrate judge's disclosure order
because the court did not reserve that right pursuant to Rule 53 by
specifically limiting the special master's powers. Castillo
further argues that even if the court had jurisdiction and
authority to review the magistrate judge's disclosure order, the
court failed to make a finding that the magistrate judge's order
was "clearly erroneous or contrary to law" in accordance with 28
U.S.C. § 636(b)(1)(A).
Our construction of the statutes and procedural rules involved
4
Castillo also argues the Postmaster's failure to object
to the reference at the time it was issued waived his right to
object to the reference after the fact by having the district
court review the magistrate judge's disclosure order. See Cruz
v. Hauck, 515 F.2d 322, 331 (5th Cir. 1975), cert. denied, 424
U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976). We find this
argument without merit because the Postmaster did not and does
not now make an objection to the reference; his objections are to
the magistrate judge's ruling on Castillo's motion to compel.
6
in the instant case5 leads us to the conclusion that the district
court did have the authority to review the magistrate judge's
ruling on Castillo's non-dispositive, pretrial motion to compel.
Although not directly addressing the authority of the court to
review non-dispositive motions, the Sixth Circuit has discussed the
standard of review for the five kinds of references by district
judges to magistrate judges in Brown v. Wesley's Quaker Maid, Inc.,
771 F.2d 952 (6th Cir. 1985), cert. denied, 479 U.S. 830, 107 S.Ct.
116, 93 L.Ed.2d 63 (1986).
The magistrate judge's initial ruling on Castillo's motion to
compel was made under the referral authority of 28 U.S.C. § 636 and
FED. R. CIV. P. 72(a). Section 636(b)(1)(A) specifically requires
the district court to apply a "clearly erroneous" standard when
reviewing a magistrate judge's ruling on a non-dispositive,
pretrial motion such as a discovery motion. Id. at 954 (citing 28
U.S.C. § 636(b)(1)(A)).6 By establishing a standard of review for
the district court to apply, the statute can only be construed to
give the district court authority to review such rulings. We
hardly think a statute that establishes a standard of review for a
5
Those statutes and procedural rules are as follows: 28
U.S.C. § 636 (the Magistrates' Act); 42 U.S.C. § 2000e-5(f)(5);
and FED. R. CIV. P. 53.
6
Section 636(b)(1)(A) provides in pertinent part:
a judge may designate a magistrate to hear and
determine any pretrial matter pending before the
court....A judge of the court may reconsider any
pretrial matter under this subparagraph (A) where it
has been shown that the magistrate's order is clearly
erroneous or contrary to law.
7
particular ruling would not naturally contemplate that such rulings
will be susceptible to an application of that standard of review.
Thus, we reject Castillo's argument that the initial ruling was not
reviewable by the district court.
Additionally, we note that after the district court referred
the case to the magistrate judge as a special master pursuant to 42
U.S.C. § 2000e-5(f)(5) and FED. R. CIV. P. 53, the magistrate judge
once again ordered disclosure. Under Rule 53 this ruling is
clearly reviewable. The scope of review of the magistrate judge's
findings under this kind of reference is the "clearly erroneous"
standard. Id. (citing FED. R. CIV. P. 53(e)(2)). The language of
Rule 53 explicitly grants the court authority to review the
findings of the special master, and thus implicitly grants
authority to review the special master's rulings on non-
dispositive, pretrial motions. We find no support for Castillo's
contention that the language of Rule 53 expressly restricts the
authority to review the rulings of the special master unless
specifically reserved in the order of reference. We find no error
in the court's review of the magistrate judge's granting of
Castillo's motion to compel the identity of the confidential
informant.
HARMLESS ERROR
Even if we were to assume that the district court exceeded its
authority or failed to properly apply the "clearly erroneous"
standard in reviewing the magistrate's ruling, we find such error
harmless. It is clear that disclosing the identity of the
8
confidential informant would not effect the magistrate judge's
finding of no sex discrimination. Although the informant's tip
precipitated the second investigation, the postal inspectors
uncovered independent evidence to corroborate the tip that Chandler
had assaulted Castillo instead of an unknown assailant. Thus, the
decision to discharge Castillo was not based on what the
confidential informant said about the assault but rather, was based
on the independent evidence uncovered by the postal inspectors.
Castillo asserts that she could have proven discrimination if
she had been able to show that the confidential informant was not
credible. Such a showing, however, would not be relevant to the
motivation of the decision makers.7 Any issue with respect to the
credibility of the informant does not disprove the Postmaster's
honest belief that Castillo committed the violation, thereby
successfully rebutting her prima facie case of disparate treatment.
See Risher v. Aldridge, 889 F.2d 592, 598 (5th Cir. 1989). See
also Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989).
Castillo has not shown that the nondisclosure of the confidential
informant's identity resulted in substantial prejudice. See Global
Petrotech, Inc. v. Engelhard Corp., 58 F.3d 198, 201 (5th Cir.
1995) (citing F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318-19 (5th Cir.
1994)).
7
Castillo does not allege that the postal service schemed
to get rid of her by inventing the story that Chandler assaulted
her and fabricating a confidential informant.
9
CONCLUSION
For the reasons articulated above, the judgment of the
district court is AFFIRMED.
10