DeCaire v. Mukasey

          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."