United States Court of Appeals
For the First Circuit
Nos. 01-1866
01-1903
01-2488
DAVID C. BISHOP,
Plaintiff-Appellee/Cross-Appellant,
v.
BELL ATLANTIC CORPORATION,
Defendant-Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Martha S. Temple, with whom Foote & Temple was on brief, for
David C. Bishop.
Barry A. Guryan, with whom Jeffrey M. Rosin and Epstein Becker
& Green, P.C., were on brief, for Bell Atlantic Corporation and Lon
Bannett for Verizon Corporation.
August 9, 2002
BOWNES, Senior Circuit Judge. Plaintiff-appellee/cross-
appellant David C. Bishop brought numerous claims of unlawful
retaliation against his employer, defendant-appellant/cross-
appellee Bell Atlantic Corporation, under the Maine Whistleblower’s
Protection Act, 26 M.R.S.A. § 831 et seq. (MWPA), and the Maine
Human Rights Act, 5 M.R.S.A. § 4572 (MHRA). A jury found in
Bishop's favor on three of the six claims of retaliation that went
to trial. Bell Atlantic contends that Bishop neither exhausted his
administrative remedies nor established a prima facie case of
retaliation as to any of the three claims. We hold that Bishop's
claims fail on the merits; accordingly, we reverse and direct entry
of judgment for Bell Atlantic.
I. BACKGROUND
Since 1988, Bishop has been employed by Bell Atlantic as
a Splice Service Technician (SST), installing and repairing
telephone line service. On August 26, 1997, Bishop filed his first
charge with the Maine Human Rights Commission (MHRC), alleging that
Bell Atlantic retaliated against him in violation of the MWPA after
he reported an assault by his supervisor, Frank Szylvian, on or
about May 7, 1997. He contended that the retaliation took the form
of Szylvian (1) interfering with his overtime opportunities; and
(2) following him around and taking notes on his work.1
1
We set forth the individual claims of retaliation
sequentially as they appear in Bishop’s filings.
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Several months later, Bishop filed a second charge, in
which he alleged that Bell Atlantic retaliated against him in
violation of the MHRA by (3) refusing to provide him with a hard
hat liner for warmth; (4) refusing to pair him up with another
employee during an ice storm in 1998; and (5) not paying him for
overtime in January, 1998. The MHRC dismissed both of these
charges on April 28, 1999.
On February 3, 1999, Bishop filed his third MHRC charge,
in which he alleged that Bell Atlantic retaliated against him by
(6) forcing him to work with an injured elbow. The MHRC dismissed
this charge on October 6, 1999. It appears that at least some of
the retaliation complaints were investigated by the MHRC.
On May 3, 1999, Bishop filed suit in the Maine Superior
Court against Bell Atlantic, asserting the same factual claims as
in his three MHRC charges. He did not assert either a continuing
violation or a general harassment theory in his lawsuit. Bishop's
case was removed to the United States District Court for the
District of Maine.
On July 23, 1999, Bell Atlantic moved to dismiss Bishop's
claims. It argued that the claims required interpretation of the
terms of the collective bargaining agreement governing his
employment and thus were preempted by section 301(a) of the Labor-
Management Relations Act. On November 19, 1999, the district court
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allowed Bell Atlantic's motion as to Bishop’s MWPA count.2 It
denied the motion as to claims (3), (4), (5) and (6).
After the close of discovery on April 13, 2000, Bishop
alleged two additional incidents of retaliation: (7) that he was
wrongfully suspended for three days on February 28, 2000; and
(8) that his temporary transfer to the Bar Harbor, Maine, reporting
area was canceled. Bishop did not file any new MHRC charges
relative to these allegations.
On July 17, 2000, Bell Atlantic moved for summary
judgment. In his opposition brief, Bishop alleged ten new
incidents of retaliation:
(9) Bell Atlantic sent him for retraining on October 6, 1997;
(10) Bell Atlantic placed new negative documents in his
personnel file between the time he saw his file on
September 23, 1997, and the time he saw it in
December 1997;
(11) he did not receive rain gear between February and May
1999;
(12) he was not reimbursed for traveling to Portland, Maine,
on August 23, 1998;
(13) he did not receive credit for the third of three jobs he
performed on October 18, 1998;
(14) he was recalled from two job sites on November 19, 1999,
and did not receive credit for the jobs;
(15) he was placed on an "action plan" on November 16, 1999;
2
The court treated Bell Atlantic’s motion as one for summary
judgment.
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(16) Bell Atlantic hid documents related to this lawsuit from
him in the summer of 2000;
(17) he was missing pay for overtime from August 1997 through
March 1998; and
(18) he was denied overtime opportunities.
Again, Bishop did not file any new MHRC charges relative to these
allegations. In ruling on Bell Atlantic's summary judgment motion,
the district court found no genuine dispute of fact as to claims
(3), (4), (5), (6), (8), (10), (12), (14) and (16) above.
On February 5, 2001, Bishop stated in his trial brief
that he intended to introduce at trial additional retaliation
claims based on a one-day suspension for his conduct on
September 16, 2000, and a two-week delay in his receipt of
retroactive wages on November 2, 2000. Bell Atlantic moved in
limine to prevent Bishop from doing so, pointing out that Bishop
had known about these incidents months earlier. On February 6,
2001, the district court allowed Bell Atlantic's motion.
The trial began on February 12, 2001, based upon the
remaining claims of retaliation:
(1) on February 28, 2000, Bell Atlantic suspended Bishop for
three days;
(2) on October 6, 1997, Bishop was sent for retraining;
(3) between February and May, 1999, Bishop was not given rain
gear;
(4) on October 18, 1998, Bishop was not given credit for the
third of three jobs he performed;
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(5) on November 16, 1999, Bishop was placed on an "action
plan";
(6) from August 1997 through March 1998, Bishop was missing
pay for overtime; and
(7) Bishop was denied overtime opportunities.
On February 16, 2001, at the close of Bishop's case, Bell
Atlantic moved for judgment as a matter of law. It challenged the
merits of Bishop's retaliation claims, but did not argue that
Bishop failed to exhaust his administrative remedies. The district
court allowed the motion only as to trial issue (2), on the ground
that events giving rise to this claim occurred before Bishop's
first MHRC charge.
Bell Atlantic renewed its motion for judgment as a matter
of law at the close of its own case. The district court reserved
decision and submitted the case on special interrogatories to the
jury. The court asked whether each of the six remaining incidents
was individually an act of retaliation against Bishop "because" he
filed charges with the MHRC.
The jury found in favor of Bishop on the first, fourth
and fifth of the seven claims set forth above. It awarded him
$250,000 in compensatory damages flowing from his emotional
distress. The jury also awarded $50,000 in punitive damages. The
court denied Bell Atlantic's motion for judgment as a matter of
law.
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After the trial, Bishop requested specific injunctive
relief. He asked the district court for an award of prejudgment
interest on the verdict and for a cease and desist order. On
February 27, 2001, the court entered a cease and desist order, but
declined to award prejudgment interest. Bell Atlantic’s appeals
and Bishop’s cross-appeal followed.
II. DISCUSSION
We review de novo the denial of a motion for judgment as
a matter of law. Andrade v. Jamestown Hous. Auth., 82 F.3d 1179,
1186 (1st Cir. 1996). We apply the same standard as the trial
court, which allows the motion only if "the evidence, viewed from
the perspective most favorable to the non-movant, is so one-sided
that the movant is plainly entitled to judgment, for reasonable
minds could not differ as to the outcome." FHS Props. Ltd. P'Ship
v. BC Assocs., 175 F.3d 81, 85 (1st Cir. 1999) (quoting Gibson v.
City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994)).
Bell Atlantic first argues that Bishop failed to exhaust
his administrative remedies as to his successful retaliation
claims. Like Title VII, the MHRA requires that a plaintiff file a
discrimination claim at the agency level before proceeding to
court. Walton v. Nalco Chemical Co., 272 F.3d 13, 20-21 (1st Cir.
2001); Gordan v. Cummings, 756 A.2d 942, 944-45 (Me. 2000); see
also Clockedile v. N.H. Dep't of Corrections, 245 F.3d 1, 3 (1st
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Cir. 2001) (Title VII requires administrative charge as predicate
to civil action).
Bell Atlantic failed to preserve its exhaustion argument
for our usual review on appeal. Although it presented this
argument at summary judgment, it did not do so in either of its
motions for judgment as a matter of law. See Scarfo v. Cabletron
Sys., Inc., 54 F.3d 931, 951 (1st Cir. 1995); Whalen v. Unit Rig,
Inc., 974 F.2d 1248, 1250-51 (10th Cir. 1992), and cases cited.
Accordingly, we "review only for plain error resulting in a
manifest miscarriage of justice." Hammond v. T.J. Litle & Co.,
Inc., 82 F.3d 1166, 1172 (1st Cir. 1996); Scarfo, 54 F.3d at 951.
Although we decline to hold that a miscarriage of justice
occurred here, we conclude that reversal is appropriate in any
event. As set forth below, Bishop failed to adduce sufficient
evidence to support his claims on their merits.
Where, as here, there is no direct evidence of
retaliation, "the McDonnell Douglas burden-shifting framework is
used to allocate and order the burdens of producing evidence."3
Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)). To establish a prima facie case of retaliation under the
3
The Supreme Court of Maine explicitly adopted the McDonnell
Douglas framework as applied to employment discrimination claims
brought under the MHRA. Me. Human Rights Comm'n v. Auburn, 408
A.2d 1253, 1261-63 (Me. 1979).
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MHRA, Bishop must show that: (1) he engaged in protected conduct
under the statute; (2) he suffered an adverse employment action;
and (3) a causal connection existed between the protected conduct
and the adverse action. See id.; Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 262 (1st Cir. 1999). Once he makes his
prima facie showing, the burden shifts to Bell Atlantic to
articulate legitimate, non-retaliatory reasons for its employment
decisions. See Fennell, 83 F.3d at 535; see also Texas Dep't of
Comty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the
defendant does so, the ultimate burden falls on the plaintiff to
show that the proffered legitimate reason is pretextual and that
the adverse employment action resulted from the defendant's
retaliatory animus. Fennell, 83 F.3d at 535 (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)).
A. The October 18, 1998 Lack Of Credit
Bishop alleged that he did not receive credit for one of
three jobs he performed on October 18, 1998. To receive credit, a
SST must "close out" each job on an automated computer system.
Bell Atlantic's trial evidence showed that the system shuts down in
the evening to back up and compile the data, and that thereafter,
SSTs cannot enter additional jobs. Bishop and another SST
testified that in the past, they had received credit for work
performed after 7:00 p.m.
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The lack of credit for this job had only a de minimis
impact on Bishop's overall work performance numbers, and no effect
on his pay. Records for January through November, 1998, showed
that Bishop completed 503 out of 571 combined assignments during
the first eleven months of 1998, or 88.1% of his assigned jobs.
Had he received credit for his third job on October 18, 1998, he
would have had credit for 504 jobs, or 88.2%.
Given the absence of evidence of meaningful consequence
to Bishop, we cannot conclude that he satisfied his prima facie
burden to show that he experienced an adverse employment action.
See Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991).
The denial of credit simply did not alter a term or condition of
employment. See Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.
1997) (discussing which of employer's actions can give rise to
adverse impact on employee with respect to "compensation, terms,
conditions, or privileges of employment."). "Work places are
rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer's act or omission does not elevate that
act or omission to the level of a materially adverse employment
action." Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996). To
allow this claim to go to the jury was error.
B. The November 16, 1999 Action Plan
The record indicates that on November 16, 1999, Bishop
was placed on an "action plan" after repeated problems with low
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productivity and warnings from his supervisors. According to Bell
Atlantic, the action plan was intended to address Bishop’s low
productivity and his failure to adequately communicate with his
supervisor about completing jobs. The plan required Bishop, if he
was unable to complete a job by the end of a day, to inform one of
his supervisors by telephone. He was provided a list of several
supervisors and their telephone numbers; if he could not reach the
first supervisor on his list, then he was required to call another.
Bishop contends that the action plan was so onerous that
it reduced his productivity and his overtime opportunities. It is
undisputed, however, that Bishop's productivity increased for a
period of time shortly after he was placed on the action plan.
Nor is there sufficient evidence suggesting that Bishop
was somehow singled out for this treatment. It is uncontested that
company policy (predating Bishop's MHRA charges) required all SSTs
to call a supervisor if they had difficulty completing a job.
Moreover, other employees were identified as substandard performers
and placed on action plans until their work improved. This
apparently routine application of pre-existing company policy to
Bishop cannot be construed as adverse employment action as required
under the MHRA. See Connell, 924 F.2d at 1179. Hence, we conclude
that no reasonable jury could find in Bishop's favor on this claim.
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C. The February 28, 2000 Three-Day Suspension
On February 28, 2000, Bishop was suspended for three
days. Bell Atlantic imposed this discipline after Bishop sliced
partway through the fibers in a telephone wire, rendering them
useless, and then left for the day without telling anyone that
future work needed to be done. Bishop contended at trial that the
wire was defective; he stated that he had "trimmed out" such
defective wire in the past without punishment, but had never before
"clipped" a wire. Bell Atlantic contended that Bishop’s actions
were professionally unprecedented and inappropriate, and that he
had violated company policy by failing to report that the wire
needed to be replaced.
Bishop’s suspension was imposed after an investigation by
his supervisors and by Bell Atlantic's corporate security
department.4 This investigation included a referral of the matter
to corporate security, a view of the scene both the day after the
incident and immediately before Bishop's suspension, and interviews
of Bishop. The suspension was imposed following Bishop's admission
that he made the cut and that he did so to ensure that the wire
could not be reused and would have to be replaced.
4
Bishop committed this act on November 16, 1999, the same day
that he was informed about his action plan. Bishop's supervisor,
James Jordan, testified that he perceived the act to be a "willful
destruction of telephone company property."
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As Bell Atlantic conceded below, the suspension
undoubtedly constituted an adverse action against Bishop. We think
that Bishop failed to adduce sufficient evidence of another element
of his retaliation case, however: the required nexus between the
protected conduct (in this case, filing his MHRC charges) and the
suspension. See Higgins, 194 F.3d at 262. In light of Bell
Atlantic's evidence concerning the nature of Bishop's conduct and
the resulting investigation, Bishop simply did not provide
sufficient basis for the jury to conclude that the suspension was
imposed because of his agency filings. We note that Bishop’s
suspension did not follow closely on the heels of his MHRC charges:
it was imposed thirty months after the first charge, twenty-four
months after the second, and twelve months after the third. In the
absence of other evidence of retaliatory animus, this substantial
amount of time between the administrative filings and the alleged
retaliation does not support the required nexus. See Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 272-74 (2001) (if temporal
proximity is the only evidence of causality establishing prima
facie retaliation, proximity must be "very close"; twenty months is
insufficient); see also Oliver v. Digital Equip. Corp., 846 F.2d
103, 110-11 (1st Cir. 1988). In sum, we think the district court
erred in allowing the jury to consider this claim.
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Because we reverse the judgment below, we need not
address Bell Atlantic’s other appeal (concerning attorneys’ fees)
or Bishop’s cross-appeal (concerning prejudgment interest).
The judgment of the district court is REVERSED. Costs on
appeal are awarded to defendant-appellant.
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