Roman v. Potter

United States Court of Appeals
For the First Circuit

No. 09-1600

CARMEN J. ROMAN,

Plaintiff, Appellant,

v.

JOHN E. POTTER, United States Postmaster General,
UNITED STATES POSTAL SERVICE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colon, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Victoria A. Ferrer-Kerber for appellant.
Ray E. Donahue, Special Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney,
was on brief for appellee.

May 5, 2010
 LYNCH, Chief Judge. Carmen Roman appeals from the entry

of summary judgment on her Title VII retaliation claims against the

United States Postal Service ("USPS") management in San Juan,

Puerto Rico, after she earlier filed an Equal Employment

Opportunity ("EEO") complaint alleging discrimination, and on her

claims under the Family Medical Leave Act ("FMLA"), 29 U.S.C.

§ 2615. See Roman v. Potter, No. 06-1941 (D.P.R. Mar. 9, 2009).

On appeal, Roman's primary argument is that there were disputed

issues of fact precluding entry of summary judgment on claims under

both statutes.

We need not decide the questions of Title VII statutory

interpretation regarding whether Roman, as a federal employee, has

cognizable retaliation claims and, if so, whether they arise under

Title VII's federal employee anti-discrimination provision, 42

U.S.C. § 2000e-16(a), or under Title VII's private sector

retaliation provision, 42 U.S.C. § 2000e-3(a), which would invoke

the Supreme Court's ruling in Burlington Northern & Santa Fe

Railway Co. v. White, 548 U.S. 53, 68 (2006). Even under the most

generous interpretation of Title VII towards Roman, her claims

fail. We affirm the district court's thoughtful decision.

I.

The general undisputed facts follow; the facts are set

forth in greater detail in the district court's opinion. See

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Roman, slip op. at 2-9. More particular facts as to each claim are

described in the discussion of those claims.

Roman began her employment with the USPS in 1978. In

March 2000, she was promoted to Customer Relations Coordinator,

reporting to the Postmaster in San Juan. In 2002, Roman was

detailed by an interim Postmaster to work in the Marketing

Department for the USPS's Caribbean District office. Roman

continued some of her duties as Customer Relations Coordinator but

was also given new responsibilities by the Acting Manager of

Marketing. While Roman was on detail to the Marketing Department,

Grace Rodriguez was appointed the new Postmaster of San Juan.

On December 1, 2004, Roman's manager, Candido Lopez,

informed her that Postmaster Rodriguez, whom Roman had never met or

spoken with before, wished to meet with Roman. Lopez told Roman

that Rodriguez, after conducting a study, had determined that the

position of Customer Relations Coordinator was no longer necessary.

Rodriguez wanted Roman to consider either shifting to the position

of Family Medical Leave Act Coordinator or applying for a permanent

position in the Marketing Department so that the customer relations

position could be abolished. Roman flatly refused to meet

Rodriguez or to discuss another position. Because Roman did not

apply for a Marketing Department position, Roman's detail to the

Marketing Department was to end on October 4, 2005. At that point,

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Roman was to return to the supervision of the Postmaster of San

Juan, now Rodriguez.

On December 17, 2004, Roman filed a complaint with the

EEO compliance office of the USPS, claiming discrimination on the

basis of age, sex, and religion. She cited, among other things,

Rodriguez's effort to abolish her position. Rodriguez and others

at the USPS learned about this complaint and were interviewed by

EEO staff at some point before March 16, 2005, when the USPS EEO

office issued a pre-complaint counseling letter detailing its

investigations.

Roman claims that in the months after Rodriguez learned

of Roman's EEO complaint, Rodriguez and the Acting District Manager

for the Caribbean, Pablo Claudio, retaliated against her by, inter

alia, disciplining her for traffic violations in July 2005;

changing her job responsibilities in August and September 2005; on

one occasion in September 2005, bumping into her as she was passing

through a doorway; and temporarily withholding her pay while she

was on leave in late November and early December 2005.

Just before Roman's detail to the Marketing Department

ended and she was required to report to Rodriguez as her new

manager, Roman took FMLA sick leave, beginning October 3, 2005,

citing to stress associated with the claimed retaliation. She

never showed up for work again; she never reported to or even met

with Rodriguez. Roman remained on leave until November 30, 2006,

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when all of her accrued sick and annual leave time had been

exhausted, and then, at the age of fifty-five, retired from the

USPS.

II.

Having exhausted her retaliation claims

administratively,1 Roman then filed suit in federal district court

in Puerto Rico against John E. Potter, United States Postmaster

General, in his official capacity on September 21, 2006. Roman's

amended complaint alleged (1) individual acts of retaliation, a

retaliatory hostile work environment, and constructive discharge,

all under Title VII, 42 U.S.C. § 2000e-3(a), and (2) denial of her

FMLA rights and retaliation under 29 U.S.C. § 2615. In March 2009,

the district court granted summary judgment in Potter's favor and

dismissed the case with prejudice. Roman, slip op. at 20.

III.

We review a district court's grant of summary judgment de

novo, viewing the facts in the light most favorable to the non-

moving party. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.

1
Roman administratively raised her retaliation claims in
two EEO complaints filed after she began sick leave, in November
2005 and February 2006. In a June 16, 2006, Final Decision, the
EEO office dismissed her first complaint on the grounds that Roman
could not make out a prima facie case of retaliation and that, even
if she could, the USPS had proffered legitimate, nondiscriminatory
reasons for its actions, which Roman could not show were
pretextual. The EEO office dismissed her second complaint for
failure to state a claim on March 9, 2006, and the Equal Employment
Opportunity Commission affirmed on the same ground on August 31,
2006.

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2006). "We may affirm the district court on any basis apparent in

the record." Chiang v. Verizon New England Inc., 595 F.3d 26, 34

(1st Cir. 2010).2

A. Individual Acts of Retaliation

We turn first to Roman's five specific retaliation

claims. Roman argues on appeal that the district court erred in

finding that she had not made out a prima facie case of

retaliation. She incorrectly argues that the district court looked

only to whether she had suffered adverse employment actions and

that the court should have considered more broadly whether she had

been subject to any "materially adverse" action that "might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination." Burlington Northern, 548 U.S. at 68 (internal

quotation marks omitted); Billings v. Town of Grafton, 515 F.3d 39,

51 (1st Cir. 2008). In fact, the district court did consider the

evidence under the Burlington Northern standard.

Potter insists that Roman, as a federal employee, can at

most only bring a retaliation claim for "personnel actions

affecting employees" under Title VII's federal employee

2
Summary judgment is properly granted "if the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c)(2). A fact is material if it "might affect the
outcome of a lawsuit under the governing law." Morrissey v. The
Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))
(internal quotation marks omitted).

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anti-discrimination provision, 42 U.S.C. § 2000e-16(a).3 The

broader standard, Potter argues, applies only to private sector

retaliation claims, under 42 U.S.C. § 2000e-3(a), pursuant to the

Supreme Court's decision in Burlington Northern. Roman counters

that she may, nonetheless, bring her claim under the broader

standard because § 2000e-3(a) is incorporated into Title VII's

federal employee anti-discrimination provision through

§ 2000e-16(d) and 42 U.S.C. § 2000e-5(g).

The Supreme Court has not decided whether federal

employees can make retaliation claims under Title VII. The Court

alluded to some of these arguments in Gomez-Perez v. Potter, 128 S.

Ct. 1931 (2008), but did not resolve them. Id. at 1941 & n. 4.

Before Gomez-Perez this court had recognized retaliation claims by

federal employees under § 2000e-3(a). See, e.g., DeCaire v.

Mukasey, 530 F.3d 1, 19 (1st Cir. 2008).

Here, we need not address these questions, or whether the

actions alleged by Roman, under Burlington Northern, "might well

have dissuaded a reasonable employee from making or supporting a

charge of discrimination." Burlington N. & Santa Fe Ry. Co., 548

3
Potter bases this argument on the Supreme Court's recent
decision in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008). In
Gomez-Perez, the Supreme Court interpreted provisions similar to
those at issue here under the Age Discrimination in Employment Act,
a private sector retaliation provision, 29 U.S.C. § 623(d), and a
federal employee anti-discrimination provision, 29 U.S.C.
§ 633a(a). Id. at 1936. The Supreme Court concluded that federal
employees may make retaliation claims under § 633a(a), which, like
§ 2000e-16(a) covers "personnel actions affecting employees." Id.

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U.S. at 68. We assume, dubitante, that Roman made out a prima

facie case as to all of her Title VII retaliation claims.

Nonetheless, Roman's claims fail under the McDonnell Douglas

burden-shifting approach because she has not shown either pretext

or that the acts at issue resulted from retaliatory animus in light

of the employer's explanation. See Enica v. Principi, 544 F.3d

328, 343 (1st Cir. 2008).

Once a plaintiff makes out a prima facie case of

retaliation, the burden shifts to the defendant, Potter, to

"articulate a legitimate, non-retaliatory reason for [the USPS's]

employment decision[s]." Id. If Potter provides such a reason,

the burden shifts back to Roman to "show that 'the proffered

legitimate reason is in fact a pretext and that the job action was

the result of the defendant’s retaliatory animus.'" Id. (quoting

Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 26

(1st Cir. 2004)).

Roman alleges five incidents of retaliation; as to each,

we conclude that Potter has provided legitimate, nonretaliatory

reasons for the actions and Roman has not provided evidence that

would permit a reasonable factfinder to find either pretext or

retaliatory animus. See Dennis v. Osram Sylvania, Inc., 549 F.3d

851, 857 (1st Cir. 2008). We note that during this period of

claimed retaliation she received favorable performance evaluations,

a bonus, and no reduction in pay or benefits.

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 1. The most serious of the retaliation claims concerns the

USPS's initial failure, beginning with Roman's November 18, 2005,

paycheck, to immediately approve pay for Roman as part of her FMLA

leave for a period of approximately four weeks in late November and

early December 2005. Rather, the USPS records showed her as away

without leave--a consequence of a mistake described below. It is

undisputed that Roman received all of her withheld pay in January

2006.4 Potter does not dispute that Roman was approved for FMLA

leave from September 3, 2005, through March 3, 2006. Nor does he

dispute that this was to be paid FMLA leave. The evidence is that

Roman initially submitted written forms and was paid; she was not

paid when she switched from paper to using an electronic system.

This was due to bureaucratic confusion; she was paid again when the

confusion was cleared up and ultimately received the full amount.

Potter presented a legitimate nonretaliatory explanation,

supported by evidence. There is no dispute that when Roman first

took leave there was some confusion about how Roman was to submit

her Notice of Absence ("3971") forms. Nonetheless, Roman was paid.

On November 10, Roman was approved for FMLA leave and she began

using a new automated voice recognition telephone system to report

her absences. After Roman began using the automated system,

Rodriguez did not approve Roman's leave because Rodriguez

4
As we note below, our reasoning also applies to Roman's
retaliation claim under the FMLA, 29 U.S.C. §§ 2615(a), 2617.

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mistakenly believed that Roman was still required to sign and

submit to Rodriguez a 3971 form, as was true earlier. The

automated system was newly implemented during that year.

Significantly, the evidence is that a number of other managers had

made the same mistake as to other employees.

The mistake as to Roman was corrected when the FMLA

coordinator, Ricardo Gonzales, told Rodriguez that under the new

automated system it was not necessary for Roman to have signed the

3971 form. Potter's evidence shows that when Rodriguez learned of

the mistake, she promptly approved Roman's leave. As a result,

Roman's pay immediately resumed, and Rodriguez filled out pay-

adjustment certificates to ensure that Roman was paid in full the

salary that had been withheld. Roman, as a result, suffered no

financial loss. There is no evidence that Rodriguez's

misunderstanding was motivated by retaliation, especially in light

of the fact that a new system was being implemented and that the

same mistake happened with other employees as well.

Roman has failed to provide any evidence that Potter's

explanation is pretext, much less that Rodriguez's initial mistake

was motivated by retaliatory animus. Roman says she believes this

delay in payment was motivated by retaliatory animus, but that

belief is not enough to show pretext or animus. "[W]e need not

credit inferences that 'rely on tenuous insinuation.'" Dennis, 549

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F.3d at 858 (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 743 (1st Cir. 1995)).

2. Roman also alleges that USPS management retaliated

against her by causing the Postal Police, in July 2005, to issue

her five traffic citations, which totaled $250 (but were later

voided), for traffic violations on USPS property, and by giving her

a warning letter for the same violations. The evidence is that a

Postal Police officer, Lieutenant Jose Ramirez, issued Roman the

citations after witnessing her speed through the customer and

employee parking lots, drive through two stop signs, and fail to

show identification when she entered the employee lot. Three other

USPS employees, including managers Claudio and Rodriguez, observed

the same thing. Roman's failure to show her identification to the

officer was also captured on tape by a security camera. The Postal

Police do issue citations for such violations so no differential

treatment is shown. Further, Postmaster Rodriguez herself had

earlier been issued a citation for not displaying a required badge

on her car after parking it in the employee lot, showing uniform

application of the rules.

Roman does not dispute that the citations were issued and

later cancelled but says she did not violate any traffic rules and

so the issuance must have been retaliatory. She relies on her

husband's limited testimony that he did not see Roman speeding in

the customer parking lot. Roman argues that the true reason that

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the officer issued the citations was as part of a scheme to

retaliate against her in July 2005 for having filed a complaint in

December 2004.5 None of these assertions rebut Potter's

explanation and evidence that four people witnessed Roman

committing the violations.

As to the warning letter, it states that it was in

response to the driving incidents on July 6, 2005. Her supervisor,

after holding a pre-disciplinary interview, issued the letter

because Roman had just had a May 2005 car accident in a USPS

vehicle and as a result attended a safe driving course. Despite

attending the course and her earlier accident, Roman had now

committed traffic violations. As per USPS policy, the warning

letter was only to remain in Roman's personnel file for two years.

On its face, the letter is not retaliatory; there was a legitimate

reason for it to issue. Roman's subjective belief in retaliation

is not enough.

3. Roman also alleges that Claudio's August 2005 decision to

reassign local responsibility for the rollout of USPS's Customer

Connect Program ("CCP") (which Roman had helped to prepare) to two

5
As further evidence, she cites the facts that Claudio and
Rodriguez were among the four witnesses, that Ramirez did not issue
citations at the time of the incident but only the following day
when Claudio asked Ramirez to investigate violations by an
unidentified female, that the citations were sent to Roman by mail,
and that Ramirez later rescinded the citations on instructions by
his supervisor. These assertions miss the point. There is no
evidence whatsoever of retaliation. Four witnesses saw her
speeding.

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postmasters, both also female, was an act of retaliation. This

decision did not cause any reduction in Roman's pay. At the time

of the decision, the CCP had not yet begun in Puerto Rico and was

due to be rolled out. Roman had previously been responsible for

the preparatory work, and members of the marketing department as

well as officials who visited Puerto Rico to begin the program's

roll-out, agreed that Roman had done a good job. Potter has given

the legitimate, nonretaliatory explanation that responsibility for

the CCP was reassigned because the CCP, as an operations program

that relies on mail carriers to deliver marketing materials and

recruit customers, would be more effectively run by the

postmasters, who manage mail carriers.

Roman presents no evidence showing this explanation to be

pretext. Whether or not Roman did a good job in preparing the

program before its launch does not address the fact that senior

management believed the program would be more effectively managed

by postmasters after its launch.

Based on this, Potter has also adequately explained why

Roman was not permitted to attend the September 23, 2005, Customer

Connect training and why Claudio wanted Roman's name removed from

materials associated with the program. Roman was no longer

responsible for the program. She has presented no evidence showing

this explanation to be a pretext.

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 4. Additionally, Roman claims that Claudio and Rodriguez

retaliated against her on September 30, 2005, by physically bumping

into Roman as she attempted to enter the office building through a

security door. Potter explains that this incident was an accident;

the security door was not working on that day and Roman rushed to

get through the door. It is undisputed that the three bumped into

each other, and, as Roman admits, this happened while all three

people were trying to move simultaneously through a door. Claudio

and Rodriguez were leaving the building while Roman was trying to

enter. Roman's mere assertion that the incident was an intentional

"assault" is insufficient to show pretext. The evidence is that it

was an accident. In any event, there is no evidence linking the

conduct to any retaliatory animus. Specifically, there is no

evidence that Claudio and Rodriguez deliberately bumped into Roman

in retaliation for her having filed an EEO complaint.

5. Finally, Roman alleges that Postmaster Rodriguez

retaliated against her on September 30, by informing Roman that her

detail to the Marketing Department had ended and that Roman should

report to Rodriguez for work on October 4, 2005. Rather than do

that, Roman chose to take sick leave and accrued annual vacation

time. As a result, she never actually reported to work under

Rodriguez.

There is no evidence that this decision to return Roman

to her permanent position was retaliatory. Roman's job description

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stated that she reported to Postmaster Rodriguez, and Roman had

been on detail to the Marketing Department for two years.

Rodriguez, in December 2004, had attempted to meet with Roman to

tell Roman that, if she wished to stay in the Marketing Department,

she should bid for a permanent position there; Roman refused to

meet with Rodriguez. There is no evidence this management decision

that Roman should return to her regular position after completion

of a temporary assignment was based on retaliatory animus. As to

Roman's allegation that the decision was somehow linked to the

bumping incident earlier that day, Roman's manager in the Marketing

Department testified, and it was not rebutted, that the decision to

end Roman's detail had been made before the bumping incident

occurred.

B. Remaining Title VII Claims

Roman also claims defendant created a hostile work

environment in order to retaliate against her. Noviello v. City of

Boston, 398 F.3d 76, 88-90 (1st Cir. 2005). "In order to prove a

hostile work environment, [Roman] must show that she was subjected

to severe or pervasive harassment that materially altered the

conditions of her employment." Id. at 92. To find a hostile work

environment, "[t]he harassment must be 'objectively and

subjectively offensive,'" id. (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 787 (1998)), and we only consider "those

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actions, directed at a complainant, that stem from a retaliatory

animus." Id. at 93.

None of the acts we have already discussed comes close to

creating a hostile work environment, nor do the other miscellaneous

matters set forth in the brief. Roman was not impaired from doing

her job. In fact, during the period in which Roman alleges the

hostile work environment existed, Roman received a $1,000 pay-for-

performance award from the USPS.

Her constructive discharge claim also plainly fails.

Roman would have "to show that her working conditions were 'so

difficult or unpleasant that a reasonable person in [her] shoes

would have felt compelled to resign.'" Marrero v. Goya of Puerto

Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002) (quoting Alicea Rosado

v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)) (alteration

in original). "The standard is an objective one; it 'cannot be

triggered solely by an employee's subjective beliefs, no matter how

sincerely held.'" Id. (quoting Suarez v. Pueblo Int'l Inc., 229

F.3d 49, 54 (1st Cir. 2000)).

Nothing Roman has alleged was so difficult or unpleasant

as to have compelled her to resign, regardless of whether Roman has

shown retaliatory animus, which she has not.6

6
Roman has alleged other acts against her by Rodriguez and
others. These actions were not raised in Roman's EEO complaints
and thus were not exhausted as retaliation claims. See
Roman-Martinez v. Runyon, 100 F.3d 213, 219 (1st Cir. 1996). We do
not address them.

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C. FMLA Claim

Finally, Roman claims that the USPS violated her rights

under the FMLA, specifically 29 U.S.C. § 2615(a), which prohibits

both denial of FMLA leave and retaliation against employees for

taking FMLA leave. The FMLA guarantees eligible employees up to

twelve work-weeks' leave per year when a serious personal or family

medical condition makes the employee unable to perform the

functions of his or her position. See 29 U.S.C. § 2612(a)(1)(D);

Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir.

1998).7 "Generally, FMLA leave is unpaid leave," but the "FMLA

permits an eligible employee to choose to substitute accrued paid

leave for FMLA leave," provided the employee "compl[ies] with the

additional requirements in an employer's paid leave policy." 29

C.F.R. § 825.207(a). In addition, "employers may not discriminate

against employees on FMLA leave in the administration of their paid

leave policies." Id.

The FMLA provides a right of action for employees to

recover based on an employer's interference with rights guaranteed

by the act or for retaliation by employers against employees who

exercise their FMLA rights. See 29 U.S.C. §§ 2615(a), 2617(a); 29

7
"Following a qualified absence, the employee is entitled
to return to the same position or an alternative position with
equivalent pay, benefits, and working conditions and without loss
of accrued seniority." Hodgens, 144 F.3d at 159.

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C.F.R. § 825.220(c); see also Colburn v. Parker Hannifin/Nichols

Portland Div., 429 F.3d 325, 331 (1st Cir. 2005).

As to the interference claim, we find that Roman's claim

fails because she has already recovered under § 2615(a). Although

her salary was briefly withheld, all parties agree that it was paid

and Roman has testified that the USPS did not owe her any money.8

Roman's real complaint is that the delay in approving her paid

leave violated her rights. Potter has shown that this was due to

a misunderstanding of the USPS's new paid leave policy and that

because Roman was paid all of the withheld salary when the mistake

was discovered, Roman cannot show damages under § 2617(a).

Nor does Roman's reliance on Jordan v. United States

Postal Service, 379 F.3d 1196 (10th Cir. 2004), establish her

entitlement to liquidated damages under § 2617(a)(1)(iii). Unlike

in that case, Potter has asserted and presented evidence that any

delay in approving Roman's paid leave was a result of a good faith

mistake, and thus not subject to liability. See 29 U.S.C.

§ 2617(a)(1)(iii). Roman has presented no evidence to the

contrary. Jordan, 379 F.3d at 1201.

For the retaliation claim, Roman argues that we are

required to apply the broader Burlington Northern standard. We

need not address this argument for the same reason we do not

8
No argument is made on appeal that any further relief is
sought.

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address it for Roman's Title VII retaliation claim. As we have

discussed earlier, Potter has provided a legitimate explanation for

the delay in approving Roman's leave and Roman has provided no

evidence that shows pretext and retaliatory animus.

The district court's entry of summary judgment is

affirmed.

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