USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1816
GEORGE E. HAZEL,
Plaintiff, Appellant,
v.
U.S. POSTMASTER GENERAL,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Feinberg,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Stephen E. Kiley with whom Kiley & Hazel was on brief for
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appellant.
David G. Karro, Attorney, Appellate Division, United States
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Postal Service, with whom A. John Pappalardo, United States Attorney,
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Gwen R. Tyre, Assistant United States Attorney, R. Andrew German,
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Chief Counsel, Appellate Division, and Cynthia J. Hallberlin,
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Attorney, Appellate Division, United States Postal Service, were on
brief for appellee.
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October 14, 1993
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*Of the Second Circuit, sitting by designation.
FEINBERG, Senior Circuit Judge. Plaintiff George E.
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Hazel appeals from a judgment of the United States District
Court for the District of Massachusetts, Robert E. Keeton, J.,
granting a motion by defendant-appellee Anthony M. Frank,
Postmaster General of the United States, for judgment on
partial findings pursuant to Fed. R. Civ. Proc. 52(c). Hazel,
a former postal employee, had alleged that the Postal Service
violated his civil rights when it fired him in retaliation for
providing legal advice to another postal employee in her sex
and age discrimination claims against the Postal Service. For
the reasons stated below, we affirm.
Background
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George Hazel joined the Postal Inspection
Service in 1971. The events giving rise to this action began
on August 27, 1984 when Hazel's immediate supervisor, John
Cinotti, gave him a "very good" evaluation only to have the
next higher supervisor, M. W. Ryan, change it to "good," with
the explanation that Cinotti had not justified the "very
good." Hazel thought Ryan was reacting to the fact that Hazel
was representing an Inspection Service clerk who had charged
Ryan with sex and age discrimination. Hazel thought his
suspicions were confirmed on September 5, 1984, when Ryan told
him he would be transferred from the Fraud Section, where
2
Hazel had been for 13 years, to the Audit Section -- despite
the fact that he had no auditing or accounting background.
Moreover, according to Hazel, audit assignments, unlike fraud
assignments, are very undesirable.
After learning of Ryan's intention to reassign
him, Hazel contacted an Equal Employment Opportunity (EEO)
counselor with respect to the alleged employment
discrimination. Thereafter, Ryan sent written confirmation of
the reassignment, and Hazel responded as follows: "Since I
believe your written directive ... violates the law, I
respectfully refuse to accept the reassignment." Ryan warned
Hazel that his letter could "be considered evidence of refusal
to obey a direct order" and gave Hazel an opportunity to obey
by moving the reporting date back from October 15 to October
18, 1984. Instead of complying with the order, Hazel reported
for firearms training on the 18th, had lunch with a friend and
went home.
The next day, Ryan asked Hazel if he intended
to report for his new assignment, and Hazel did not answer the
question. Ryan then handed him a letter putting him in an
off-duty status. When Hazel protested this decision, Ryan
replied: "[Y]our placement in an off-duty status ... will ...
remain in effect until such time as you report for duty to
your new assignment." Hazel testified that he never attempted
to report to the new assignment after receiving that reply.
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Finally, on October 22, 1984, Ryan charged Hazel with, and
recommended removing him from the Postal Service for,
insubordination.
The Regional Chief Inspector accepted the
recommendation, and in a letter to Hazel, dated November 8,
1984, stated:
I find that the charge, insubordination, as
stated in the notice of October 22, 1984, is
fully supported by the evidence. You were
directed by Mr. M.W. Ryan, Inspector in Charge,
Boston Division, to report effective October
15, 1984 to Team Leader E.A. Jacobs for Job
Assignment #40. On that date, you directed a
letter to Mr. Ryan refusing to comply with his
directive.
. . .
On October 16, 1984, you were again ordered to
report to Job Assignment #40 no later than
October 18, 1984. As of October 19, 1984, you
had not reported as directed, so you were
placed in a non-duty non-pay status.
. . .
The position of Postal Inspector requires the
utmost individual loyalty, diligence and dedication in
the undertaking of assigned duties as needs of
the Service dictate. Accordingly, a supported
charge of insubordination is an extremely
serious and grave charge which will not be
condoned or tolerated.
The Chief Inspector removed Hazel from the Postal Service
effective November 23, 1984. In response to another appeal by
Hazel, the Chief Inspector stated:
Your failure to obey a direct order from the
Inspector in Charge is intolerable. This type
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of conduct is disruptive and undermines the
morale of the employees in the office.
Additionally, it is not in keeping with the
image and professional standards expected of a
Postal Inspector. Based on the nature of this
incident your placement in a non-duty non-pay
status was necessary and appropriate.
In January 1988, after exhausting his
administrative and EEO remedies, Hazel filed this action. It
came to trial in June 1992, almost eight years after Hazel's
removal for insubordination. After three days of a bench
trial, during which Hazel presented his case through the
testimony of seven witnesses including himself, defendant
Postmaster General moved for judgment on partial findings
pursuant to Fed. R. Civ. Proc. 52(c). The district judge
stated his findings of fact and conclusions of law in open
court, granted the motion and entered judgment for defendant.
This appeal followed.
Discussion
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Hazel's retaliation claim required him to show
a violation of either 29 U.S.C. 623(d), which forbids
discrimination against employees opposing age discrimination,
or 42 U.S.C. 2000e-3(a), which forbids retaliation against
employees opposing sex discrimination. Under either statute,
Hazel's initial burden was to "establish a prima facie case
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sufficient to permit an inference of retaliatory motive." The
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burden placed on a plaintiff at this stage "is not onerous."
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
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(1981). To state a prima facie claim of retaliation under
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Title VII, the plaintiff must show: "[1] protected
participation or opposition under Title VII known by the
alleged retaliator; [2] an employment action or actions
disadvantaging persons engaged in protected activities; and
[3] a causal connection between the first two elements[,] that
is [,] a retaliatory motive playing a part in the adverse
employment actions." Petitti v. New England Tel. & Tel. Co.,
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909 F.2d 28, 33 (1st Cir. 1990) (quoting Grant v. Bethlehem
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Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980)).
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Once the prima facie case is established, the burden
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of production, not persuasion, shifts to the defendant to
articulate a plausible, legitimate, and nondiscriminatory
justification for the employment decision. Petitti, 909 F.2d
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at 31. Once the employer proffers such a justification,
the McDonnell Douglas framework -- with its
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presumptions and burdens -- is no longer
relevant....the defendant's "production" (whatever
its persuasive effect) having been made, the trier
of fact proceeds to decide the ultimate
question....Thus, rejection of the defendant's
proffered reasons will permit the trier of fact to
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infer the ultimate fact...., [but] the plaintiff at
all times bears the "ultimate burden of persuasion."
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993)
(emphasis in original) (citations omitted).
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The issue of retaliatory motive in an employment
discrimination case presents "a pure question of fact," and
the trial court's determination is reviewed under the clearly
erroneous standard. See Pullman-Standard v. Swint, 456 U.S.
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273, 287-88 (1982). Under the clearly erroneous standard, the
court's inference must be affirmed if it is "plausible."
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152
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(1st Cir. 1990).
Judge Keeton heard the testimony of seven
witnesses including Hazel and, as the trier of fact, was
entitled to draw his own reasonable inferences as to whether
Hazel was fired for a retaliatory reason. In his dispositive
ruling, the judge stated:
I cannot find that the discharge was motivated
by retaliation, or, to put it in language that
parallels many of the precedents here, I cannot
find that a retaliatory motive was a motivating
factor of the discharge, even when assuming
that the retaliatory motive was a motivating
factor of the downgrading of the rating from
very good to good and a motivating factor of
the reassignment.
The judge further said that
the plaintiff was not discharged, even by the
plaintiff's own proof, simply because of the
protected activity but instead was discharged,
by the plaintiff's own proof, because of
insubordination ..., a refusal to accept orders
and comply with them[.] [This] is documented
and undisputed under the plaintiff's own
evidence.
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On review to this court, we cannot say that
these findings of fact are clearly erroneous. To put it
another way, Hazel's admission that he refused to report for
work and the evidence that the Postal Service fired him for
that very reason provided a "plausible" basis for the district
court's finding that retaliation is not the most likely reason
Hazel was fired.
Hazel argues to us, as a procedural matter,
that the district court should have limited itself to
determining whether he proved a prima facie case and then
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waited to hear the Postmaster General's evidence and Hazel's
rebuttal case. It is true that in this type of litigation
courts generally wait until after a defendant has put on its
case to pass on the sufficiency of its nondiscriminatory
explanation. This is because nondiscriminatory explanations
usually do not surface fully until the defendant's case. But
here, Hazel, in his own case, introduced evidence that he was
discharged for insubordination as well as evidence purporting
to show that the insubordination charge was only a pretext for
firing him. In this court, Hazel points to no further
evidence that he was unable to present because the district
court's procedure took him by surprise. (Indeed, Hazel
apparently made no such claim in the district court).
Hazel also argues to us that his refusal to
work was an activity protected by the anti-retaliation
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statutes. However, he cites no persuasive authority for the
proposition that an employee claiming discrimination can on
that basis absolutely refuse to work where his employer
directs. On the contrary, the right to oppose discrimination
is not a right to refuse to work on account of discrimination.
We have held that a plaintiff goes "beyond the scope of
protected opposition" when he "damages the basic goals and
interests" of the employer, who has a "legitimate interest in
seeing that its employees perform their work well." Hochstadt
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v. Worcester Foundation for Experimental Biology, 545 F.2d
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222, 233 (1st Cir. 1976). The district judge could accept, as
he obviously did, the judgment of the Postal Service that
"insubordination is an extremely serious and grave charge,"
that it is "disruptive and undermines the morale of the
employees in the office," that it is "not in keeping with the
image and professional standards expected of a Postal
Inspector," and that, if proved, it should "not be condoned or
tolerated."
We are aware that the timing of Ryan's
downgrading of Hazel's evaluation and the subsequent transfer
have the smell of bureaucratic retaliation.1 Indeed, the
district judge assumed that to be so. Moreover, we are not
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1 We are also aware, of course, that the
Postmaster General did not present his case in the
district court.
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unsympathetic to Hazel's plight. After a successful career of
13 years in the Fraud Section, including responsibility for
major criminal investigations, Hazel obviously regarded his
reassignment to the Audit Section -- where his
responsibilities would have included such routine and
monotonous work as the adjustment of slip-and-fall cases up to
$5,000 -- as demeaning. Perhaps Hazel is arguing that his
refusal to work was not insubordination because he was
constructively discharged when Ryan reassigned him. But Hazel
could have taken the new job under protest while pursuing his
remedies. This he failed to do. The humiliation Hazel may
have felt in the new job is a far cry from the serious
hardship in cases where we have found constructive discharge.
See, e.g., Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir.
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1992).
Hazel relies on Curran v. Department of the
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Treasury, 714 F.2d 913 (9th Cir. 1983), for the proposition
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that an employee need not obey an improper order. The legal
issue there was whether the mandate of 5 U.S.C. 7701(c) and
7513 compelled the Merit Systems Protection Board (the Board)
to reinstate an employee who was removed for refusing to obey
an improper order that caused serious hardship. Putting to
one side the different remedial powers and obligations of the
Board in that case and the federal district court here, Curran
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is distinguishable. It is clear that the order that the
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plaintiff there refused to obey -- that he transfer from
Seattle to San Francisco -- would have imposed serious
hardships on him that could not be made good by returning him
a few years later at the end of administrative and legal
proceedings. 714 F.2d at 918. The plaintiff apparently
persuaded the court that "the transfer would threaten his
family's financial security, interfere with his wife's
employment, and prevent his completion of a graduate degree."
714 F.2d at 916. In contrast, Hazel's only concrete
complaints about being assigned to the Audit Section were that
audit assignments are boring (the work is "useless and
repetitive") and involve overnight travel. Yet, the district
court, as factfinder, was not even obliged to take this claim
of inconvenience at face value, given Hazel's admission that
another employee was given an assignment to the Audit Section
because it would not require her to travel.
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Finally, even if we assume, as did the trial
court, that Hazel's reassignment and downgraded performance
evaluation were the product of impermissible retaliation in
contravention of Title VII, he cannot recover any damages
because of his failure to mitigate by reporting to work in the
new post. And, granting equitable relief would be equally
futile. The failure to mitigate undercuts any claim for back
pay. As for reinstatement, we realize that our dissenting
brother suggests a remand so that the district court may
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consider ordering that statutory remedy by reinstating
plaintiff to his original "very good" rating and fraud
inspector's job. But the able district judge has already
considered this possibility by assuming that the demotion and
transfer were both unlawful and by specifically considering
whether plaintiff was entitled to "back pay or other remedies
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available under Title VII" (emphasis supplied). The judge
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nevertheless chose not to grant any relief on the record
before him. The judge certainly had discretion in this
respect, see Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,
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320-22 (1st Cir. 1989) (en banc), and, on the record before
us, we cannot say that he abused it. Under the circumstances,
a remand would serve no useful purpose and we will therefore
not order it. See Equitable Life Assurance Soc'y v. Porter-
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Englehart, 867 F.2d 79, 84 n.3 (1st Cir. 1989) (refusing the
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remedy appellant sought as "utterly pointless" because it
would leave her in no better position than she was during
litigation).
In sum, Hazel's proof was sufficient to justify
the district judge's finding that Hazel was fired for refusing
to report to work rather than for opposing discrimination.
Under the circumstances, the district court was entitled to
enter judgment for the Postmaster General at the close of
Hazel's case. Accordingly, the judgment of the district court
is Affirmed.
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STAHL, Circuit Judge, dissenting. Because I
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disagree with the majority's reading of the record, I would
remand in order to give the district court the opportunity to
consider restoration of plaintiff's "very good" rating and
reinstatement of plaintiff to his fraud inspector's job.
Given plaintiff's refusal to comply with a reassignment which
he alleged to have been unlawful and in retaliation for
protected behavior, the district court reasoned that it need
not reach those issues. This decision of the district court
was erroneous. Cf. Garcia v. Lawn, 805 F.2d 1400, 1401-02
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(9th Cir. 1986) (holding that district court was not without
power to reinstate plaintiff even though plaintiff had been
dismissed during the pendency of his case for failure to
report to an allegedly unlawful reassignment). Accordingly,
this case should be remanded for consideration of these claims
and possible equitable relief under Title VII.
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