Clockedile v. New Hampshire Department of Corrections

United States Court of Appeals
For the First Circuit

No. 00-1541
No. 00-1578

NANCY CLOCKEDILE,

Plaintiff, Appellant/Cross-Appellee,

v.

NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

Defendant, Appellee/Cross-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Boudin and Stahl,

Circuit Judges

Michael J. Sheehan for plaintiff.
John F. Suhre with whom C. Gregory Stewart, General Counsel,
Philip B. Sklover, Associate General Counsel, and Vincent J.
Blackwood, Assistant General Counsel, were on brief for the
Equal Employment Opportunity Commission, Amicus Curiae.
Nancy J. Smith, Senior Assistant Attorney General, Civil
Bureau, with whom Philip T. McLaughlin, Attorney General, was on
brief for defendant.
 March 30, 2001

BOUDIN, Circuit Judge. In this case, Nancy Clockedile

won a jury verdict against the New Hampshire Department of

Corrections ("the Department") for retaliating against her after

she filed a sexual harassment charge. The trial court,

constrained by our holding in Johnson v. General Electric, 840

F.2d 132, 139 (1st Cir. 1988), set aside the award because

Clockedile had not alleged the pertinent retaliation in her

administrative complaint. On this appeal, the main issue is

whether Johnson should be reconsidered.

The Department hired Clockedile as a counselor in March

1995 and assigned her to co-teach a course at the state prison’s

minimum security unit. Clockedile met often during May and June

with the unit manager, John Martin, who, she later averred, made

offensive remarks to her of a sexual nature. Clockedile said

that when she objected, Martin laughed at her and began a

campaign of derision, joined by his officers, which ended with

the cancellation of one of her class meetings in November 1995.

She then filed a complaint against Martin with the Department’s

sexual harassment committee.

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 After this internal complaint, the Department promptly

discontinued Clockedile's teaching in Martin’s unit and she

thereafter had nothing to do with him. However, Clockedile had

already hired a lawyer, and on December 8, 1995, she had filed

a sexual harassment charge with the New Hampshire Human Rights

Commission, which was cross-filed with the Equal Employment

Opportunity Commission ("EEOC"). The administrative charge was

an abbreviated version of the internal complaint, charging

Martin with sexual harassment and describing his behavior as

including retaliation by Martin for Clockedile having confronted

him. In January 1996, the Department found insufficient

evidence to determine that the claims alleged in Clockedile's

internal complaint were true.

Clockedile later said that between January 1996 and

February 1997, the Department retaliated against her, first by

relocating her on January 15, 1996, to a hallway desk in another

building; the Department has asserted that the relocation was

due to the conversion of her old building into a halfway house.

Clockedile also described as retaliation her transfer out of the

community corrections unit, another relocation in the spring of

1996, and a reassignment to teach a different class; the

Department said that these actions were required by restrictions

on use of the funds that paid for Clockedile's job.

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 In August 1996, Clockedile complained to the warden

about an officer, claiming that the officer was "inciting male

officers against the female officers" and had said that

Clockedile was encouraging a female officer to sue the

Department for sexual harassment. In October and November 1996,

Clockedile made two more internal complaints about guards and

other staff members who were allegedly shunning or disparaging

her--or attempting to prevent her from chatting with a then

boyfriend (a guard) during breaks--all allegedly because she

filed the EEOC charge against Martin. On October 28, 1996,

between these complaints, Clockedile received a right-to-sue

letter from the EEOC.

At the start of January 1997, Clockedile received an

official letter of warning from her unit head for "exhibiting

uncooperative or disruptive behavior" on a "variety of issues"

over the last several months.1 This letter followed a

"privileged and confidential" memorandum from the Department’s

legal counsel who had written to the unit head on November 7,

1996, as follows:

1
Mentioned specifically were her failure to produce
physicians' certificates for medical leave that she took on
several occasions in 1996, her failure to cooperate with respect
to the investigation resulting from her August 1996 oral
complaint to the warden, and her "meddling" in third-party
complaints of sexual harassment in contravention of orders to
stop.

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 Recently, the Human Rights Commission
gave Nancy a 'right to sue' letter. She has
180 days [sic] to file a complaint. She is
still a problem employee. She has much too
much time on her hands.

I request that you come up with a plan
by next Wednesday to better utilize her
talents to keep her fully employed. This
will hopefully not give her time to gossip.

Needless to say, Clockedile now cites the subsequent letter of

warning as retaliation, adding that, on at least one occasion,

the Department later canceled a meeting of one of her classes,

claiming that she was late; Clockedile says she was on time and

calls this a further instance of retaliation.

On January 24, 1997, Clockedile brought suit in federal

district court charging sexual harassment and retaliation under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-

2(a) & 2000e-3(a) (1994). In mid-February 1997, Clockedile took

medical leave and did not return to work, claiming constructive

discharge because of the succession of events already described.

In her federal suit, Clockedile sought back pay, front (i.e.,

future) pay, and compensation for emotional harm.

After a trial in October 1999, a jury awarded her

$129,111 on the retaliation claim, partly for back pay ($67,861)

and partly for compensatory damages ($61,250), but awarded no

front pay and found against her on the sexual harassment claim.

The district court then granted the Department’s post-trial

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motion for judgment as a matter of law because Clockedile’s

filing with the agencies had not alleged retaliation by the

Department. Clockedile now appeals, asking, inter alia, that

Johnson be reconsidered; and the Department protectively cross-

appeals, arguing that the evidence did not justify the jury’s

finding of retaliation.2

Title VII requires, as a predicate to a civil action,

that the complainant first file an administrative charge with

the EEOC within a specified and relatively short time period

(usually 180 or 300 days) after the discrimination complained

of, 42 U.S.C. § 2000e-5(e)(1), and that the lawsuit be brought

within an even shorter period (90 days) after notice that the

administrative charge is dismissed or after the agency instead

issues a right-to-sue letter, id. § 2000e-5(f)(1). Despite

occasional references to "jurisdiction," this is basically an

exhaustion requirement coupled with a short statute of

limitations both on complaining to the agency and on filing the

2 Clockedile also says that she did complain of retaliation
in her agency complaint and that in any event the Department has
waived the Johnson objection. However, Martin's alleged initial
retaliation, mentioned in the agency complaint, was wholly
different from the acts of retaliation on which the court suit
centered; and the failure to assert the latter in an agency
complaint was effectively raised as an objection by the
Department and pressed before the case went to the jury. The
district court's post-trial decision addressed both points in
full, and we adopt its explanation.

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subsequent court case. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393-95 & n.12 (1982).

However, Title VII does not say explicitly that the

court suit must be limited to just what was alleged in the

agency complaint. And the courts, while assuming that some kind

of a relationship must exist, have sometimes allowed court

claims that go beyond the claim or claims made to the agency,

and sometimes not. The outcomes and rationales vary markedly

where the claimant offers new incidents of discrimination or an

entirely new theory. Compare, e.g., Taylor v. Western &

Southern Life Ins. Co., 966 F.2d 1188, 1195-96 (7th Cir. 1992),

with Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996). See

generally 4 Larson, Employment Discrimination § 76.06 (2d ed.

2000) (collecting dozens of cases).

We are concerned here with one recurrent problem,

namely, whether (or to what extent) a lawsuit following a

discrimination complaint can include a claim of retaliation not

made to the agency. In Johnson, this court concluded in a terse

but straightforward discussion that such a lawsuit is limited to

claims that "must reasonably be expected to . . . have been

within the scope of the EEOC’s investigation," 840 F.2d at 139,

an approach adopted by this and a number of other circuits,

e.g., Ang v. Procter & Gamble Co., 932 F.2d 540, 545 (6th Cir.

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1991). The Johnson court said that this did not include

retaliation for filing a charge where the complainant had not

"even informed the EEOC of the alleged retaliation." 840 F.2d

at 139.

In setting aside the verdict in this case, the district

court invited us to reexamine Johnson, noting that since

Johnson, most circuits have permitted retaliation claims to be

made in court even though only the discrimination charge was

made to the agency. 3 The district court also pointed to the

danger of mouse-trapping complainants, who often file their

agency complaints without counsel. See, e.g., Taylor, 966 F.2d

at 1195. Further, the EEOC has appeared as amicus curiae,

advising us that (contrary to Johnson's implicit assumption), it

is "likely" that the alleged retaliation against Clockedile for

3Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d
Cir. 1980) (per curiam); Howze v. Jones & Laughlin Steel Corp.,
750 F.2d 1208, 1212 (3d Cir. 1984); Nealon v. Stone, 958 F.2d
584, 590 (4th Cir. 1992); Gottlieb v. Tulane Univ., 809 F.2d
278, 284 (5th Cir. 1987); Malhotra v. Cotter & Co., 885 F.2d
1305, 1312 (7th Cir. 1989); Wentz v. Maryland Cas. Co., 869 F.2d
1153, 1154 (8th Cir. 1989); Anderson v. Reno, 190 F.3d 930, 938
(9th Cir. 1999); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864
F.2d 680, 682 (10th Cir. 1988); Baker v. Buckeye Cellulose
Corp., 856 F.2d 167, 168-69 (11th Cir. 1988). The Sixth Circuit
position is unclear, compare Ang v. Procter & Gamble Co., 932
F.2d 540, 546-47 (6th Cir. 1991), with Duggins v. Steak 'N
Shake, Inc., 195 F.3d 828, 831-33 (6th Cir. 1999), and the D.C.
Circuit is silent.

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filing her charge would "have been uncovered in a reasonable

EEOC investigation" of the charge.

Having weighed these arguments, to which the

Department has replied, we think that Johnson's rule regarding

retaliation claims should be abandoned simply because its

premise as to what the EEOC investigates turns out to be

incorrect. Here, little threat exists of upsetting reasonable

reliance on Johnson because Clockedile did complain to the

Department itself that it was retaliating against her even

though not in a formal EEOC charge. While a panel in this

circuit usually follows prior circuit precedent, the EEOC’s

position is a new development; and the panel has consulted with

all active judges before issuing this decision, although this

does not rule out reconsideration en banc. Trailer Marine

Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st Cir.

1992).

Nevertheless, there remain questions about whether and

how we should apply in this case Johnson's more general "scope

of the investigation" test, which this court has previously

reaffirmed, Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st

Cir. 1996); Powers v. Grinnell Corp., 915 F.2d 34, 38-39 (1st

Cir. 1990). In its favor, the test, where it refers to an

actual investigation by the agency, correlates fairly well with

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the dual aims of the statutory scheme: to give the agency a

chance to conciliate (the exhaustion goal), 41 U.S.C. § 2000e-

5(b), and to provide quick notice to the employer (the statute

of limitations goal), Taylor, 966 F.2d at 1195.

The test, however, becomes disconnected from these

justifications where--as often seems to be the case, see Park

v. Howard Univ., 71 F.3d 904, 907 n.1 (D.C. Cir. 1995), cert.

denied, 519 U.S. 811 (1996)--the agency does not investigate.

Such appears to be the situation here. In this case, Clockedile

obtained a lawyer by the end of 1995, filed her agency complaint

early in December before the first act of alleged departmental

retaliation, and soon thereafter sought a right-to-sue letter.4

The record does not show that the EEOC or the state agency ever

conducted an investigation, and the "scope of the investigation"

rationale for allowing Clockedile's retaliation claims is

correspondingly weakened.

There is a further problem for Clockedile under the

"scope of the investigation" test. Key acts of retaliation that

she relied on at trial (alleged attempts to enforce separation

4 Indeed, in a January letter, Clockedile's lawyer told the
New Hampshire Commission for Human Rights that she believed that
she would be requesting a right-to-sue letter and, therefore,
the state commission would "not be involved in investigating
this matter." In a letter the next day to the EEOC,
Clockedile's attorney requested "a Notice of Right to Sue."

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from her boyfriend, the letter of reprimand) occurred after she

received her right-to-sue letter in October 1996, and the

alleged constructive discharge seemingly occurred even later

(after her lawsuit had been filed in January 1997). It is a

stretch to describe acts that occurred after agency proceedings

have ended, see 29 C.F.R. § 1601.28(a)(3) & (b)(1) (2000), as

"within" the scope of the agency investigation.

Clockedile's retaliation claims might fare better under

an alternative rubric. Not all circuits have relied on the

"scope of the investigation" test. A plurality of circuits--

including the Second, Fourth, Seventh, Eighth, Ninth, and Tenth-

-have said that the complainant may assert other claims

"reasonably related" to those alleged in the agency charge,

e.g., Kirkland, 622 F.2d at 1068, and the Fifth Circuit has an

"ancillary jurisdiction" rule for retaliation claims that

provides similar flexibility, e.g., Gottlieb, 809 F.2d at 284

(5th Cir. 1987). Such flexibility is purchased by using fairly

vague terms ("related," "ancillary"), but under these terms,

claims of retaliation growing out of a discrimination filing are

regularly included.

The result, at least as to retaliation, can be

justified in policy terms. Retaliation uniquely chills

remedies; and by retaliating against an initial administrative

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charge, the employer discourages the employee from adding a new

claim of retaliation. See Malhotra, 885 F.2d at 1312. If the

retaliation is official, there is no need to worry about notice:

the employer should already know.5 And, as between the employer

and the employee, the former is in a better position to

appreciate the rules about what legitimate legal claims may

exist and be preserved.

On balance, we think the cleanest rule is this:

retaliation claims are preserved so long as the retaliation is

reasonably related to and grows out of the discrimination

complained of to the agency--e.g., the retaliation is for filing

the agency complaint itself. Someday the Supreme Court will

bring order to this subject; until then, this is a practical

resolution of a narrow but recurring problem. And, while the

circuits' broader theories may diverge, this retaliation rule is

a result on which the decisions generally converge, whatever the

explanation given (see note 3, above).

5
It is only adverse action that is covered; and while an
employer could be liable for failing to take action against
unauthorized retaliation, this would normally be true only after
the employee complained--which itself provides notice of a sort.
See Conetta v. National Hair Care Ctrs., Inc., 236 F.3d 67, 76
(1st Cir. 2001). See generally EEOC Compliance Manual § 8-II
(May 20, 1998) (discussing the "essential elements of a
retaliation claim"). More broadly, a claim of retaliation by
low-level employees could easily be compromised, at least in the
eyes of a jury, by the failure to raise the matter with
management unless there were good grounds for failing to do so.

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 In adopting this rule, we take no position on the

proper rule for non-retaliation claims. As already noted, the

courts are far more divided, and the law more confused, on how

to handle situations in which a plaintiff advances in court

claims based on additional acts of discrimination or alternative

theories that were never presented to the agency. The

circumstances vary widely; and perhaps no simply stated rule

neatly resolves all problems. In all events, we are satisfied

that claims of retaliation are homogeneous enough and

sufficiently distinct from other problems to justify a general

rule.

This brings us to the Department's alternative argument

(its formal cross-appeal was unnecessary, see Plymouth Sav. Bank

v. I.R.S., 187 F.3d 203, 209 (1st Cir. 1999)), that the district

court's judgment for the Department should stand because the

evidence did not support the jury verdict. The Department says

that Clockedile did not make out a prima facie case for

retaliation or provide sufficient evidence to show that the

Department's motives were pretextual. At worst, the Department

argued, it had mixed motives and would in any event have taken

the same actions on permissible grounds, Tanca v. Nordberg, 98

F.3d 680, 684-85 (1st Cir. 1996), cert. denied, 520 U.S. 1119

(1997).

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 The history of interactions between Clockedile and

various individuals within the Department is remarkably

complicated, given her short tenure (less than two years before

her final medical leave). What the evidence shows is that from

the time of her internal complaint against Martin, she and the

Department were constantly at odds on a succession of seemingly

small matters, such as who was to blame for cancelled classes

and problems with her paperwork for medical leave, as well as

alleged acts of individualized disparagement and harassment by

guards or other staff.

Given the jury verdict, we must largely accept

Clockedile's version of what events occurred. Still,

Clockedile's case as to the retaliatory motive for most of these

actions is weak. The timing of some events (e.g., the transfer

to the hallway desk) creates an arguable inference of

retaliation, see Hodgens v. General Dynamics Corp., 144 F.3d

151, 168 (1st Cir. 1998), but the Department offered some

objective evidence to explain such actions, and Clockedile was

or became a troublesome employee whose conduct at work could

explain some of the Department's actions. The legal counsel's

memorandum aside, little direct evidence links specific actions

with an explicit retaliatory motive.

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 However, the memorandum is direct evidence of an

explicit retaliatory reaction to the right-to-sue letter, and it

was soon followed by a severe reprimand to Clockedile from the

addressee of the memorandum. The Department, in its very able

brief, says that the reprimand alone had no concrete

consequences, but the Department's brief fails fully to credit

the possibility that the jury could have regarded the memorandum

as casting a sinister light on the prior actions complained of

by Clockedile.

Having read much of the transcript, we doubt that a

retaliatory motive figured decisively in most of the

Department's conduct. But we are also unwilling to upset a

jury's assessment of the pattern of events where there was

direct evidence of a wrongful motive and the jury could

reasonably have disbelieved some of the Department's

explanations. See White v. New Hampshire Dep't of Corrections,

221 F.3d 254, 259 (1st Cir. 2000). The jury showed a sense of

proportion limiting claims and damages, and an attentive trial

judge declined to find the evidence insufficient.

The judgment of the district court is vacated and the

case is remanded for reinstatement of the jury verdict.

It is so ordered.

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