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    Welsh v. Derwinski, 1st Cir. (1994)

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    The district court granted summary judgment for the defendant on the plaintiff's claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The appeals court considered only the plaintiff's last claim that a reduction in his duties prior to a job classification audit was unlawful retaliation under the ADEA. The court affirmed the judgment, finding that the plaintiff failed to demonstrate an "adverse employment action" as required to establish a prima facie case of retaliation, since he would not have received a status upgrade in any event.

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    Welsh v. Derwinski, 1st Cir. (1994)

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    Scribd Government Docs
    33 views9 pages
    The district court granted summary judgment for the defendant on the plaintiff's claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The appeals court considered only the plaintiff's last claim that a reduction in his duties prior to a job classification audit was unlawful retaliation under the ADEA. The court affirmed the judgment, finding that the plaintiff failed to demonstrate an "adverse employment action" as required to establish a prima facie case of retaliation, since he would not have received a status upgrade in any event.

    Original Description:

    Filed: 1994-01-19 Precedential Status: Precedential Docket: 93-1410

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    The district court granted summary judgment for the defendant on the plaintiff's claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The appeals court considered only the plaintiff's last claim that a reduction in his duties prior to a job classification audit was unlawful retaliation under the ADEA. The court affirmed the judgment, finding that the plaintiff failed to demonstrate an "adverse employment action" as required to establish a prima facie case of retaliation, since he would not have received a status upgrade in any event.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    33 views9 pages

    Welsh v. Derwinski, 1st Cir. (1994)

    Uploaded by

    Scribd Government Docs
    The district court granted summary judgment for the defendant on the plaintiff's claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA). The appeals court considered only the plaintiff's last claim that a reduction in his duties prior to a job classification audit was unlawful retaliation under the ADEA. The court affirmed the judgment, finding that the plaintiff failed to demonstrate an "adverse employment action" as required to establish a prima facie case of retaliation, since he would not have received a status upgrade in any event.

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    USCA1 Opinion

    United States Court of Appeals


    United States Court of Appeals
    For the First Circuit
    For the First Circuit
    ____________________
    No. 93-1410
    THOMAS WELSH,
    Plaintiff, Appellant,
    v.
    EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS,
    Defendant, Appellee.
    ____________________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Rya W. Zobel, U.S. District Judge]
    ___________________
    ____________________
    Before
    Stahl, Circuit Judge,
    _____________
    Aldrich and Campbell, Senior Circuit Judges.
    _____________________
    ____________________
    Ernest C. Hadley for appellant.
    ________________

    Roberta T. Brown, Assistant United States Attorney, with whom


    _________________
    John Pappalardo, United States Attorney, was on brief for appellee.
    _______________
    ____________________
    January 18, 1994
    ____________________

    Per Curiam.
    ____________
    Thomas Welsh

    In this

    challenges the

    appeal, plaintiff-appellant

    district court's

    determination

    that he had not suffered retaliation actionable under the Age


    Discrimination Employment Act ("ADEA").
    In

    1987,

    Brockton-West
    Center's

    plaintiff

    Roxbury

    ("VA Medical

    Veterans
    Center's")

    recreational therapy program.


    time was General
    believing

    became

    We affirm.
    coordinator

    Administration
    Key

    the

    Medical
    outpatient

    His job classification at that

    Service ("GS") level 6.

    that he was

    Club, an

    of

    In February 1989,

    performing duties above

    the level of

    GS-6, plaintiff sought


    by requesting a

    an upgrade of his

    "desk audit."1

    job classification

    The audit

    was not performed

    until May 1989.


    Meanwhile, in
    being

    denied

    an

    March 1989, maintaining that

    upgrade

    discrimination2, plaintiff
    the

    Equal

    Employment

    because

    of

    age

    and

    filed an informal

    Opportunity

    he was

    disability

    complaint with

    Commission

    ("EEOC").3

    ____________________
    1. In a desk audit, a Personnel Specialist interviews the
    employee and his/her supervisor and determines (1) whether
    the employee's job description accurately depicts the work
    performed by the employee, and (2) whether the job is
    classified at the proper GS level.
    2. Plaintiff
    alcoholic.

    has

    heart condition

    and

    is

    a recovering

    3. The charges in plaintiff's informal complaint formed the


    basis for a formal EEOC complaint filed by plaintiff in June
    1989, and for plaintiff's non-retaliation discrimination
    claims in the instant lawsuit.
    The district court granted
    defendant summary judgment on these claims in June 1991.
    Plaintiff does not appeal from this ruling.
    -22

    Plaintiff

    asserts

    that, as

    complaint, he suffered

    result

    the following

    of

    his filing

    forms of

    this

    retaliation:

    (1)

    an unpleasant discussion

    the filing of the complaint;


    Club position to
    an

    unfounded

    Thanksgiving

    funds

    by
    in

    his

    inpatient setting; (3)

    supervisor

    connection

    that

    with

    he
    Key

    had
    Club

    dinner; (4) a reprimand from his supervisor for

    a previously approved absence from an


    a

    supervisor regarding

    (2) a reassignment from the Key

    a job working in an

    accusation

    misappropriated

    with his

    reduction

    in

    eliminating the

    duties

    prior

    potential of a

    to

    awards dinner; and (5)


    the

    desk

    audit,

    status upgrade.

    thus

    These five

    incidents formed the basis for his retaliation claim.


    In

    addition

    to

    granting

    summary

    plaintiff's non-retaliation discrimination


    note

    3,

    judgment

    the district
    stage, that

    court
    the

    incidents did not give rise


    ADEA.

    also

    first

    of

    at

    the

    the

    summary

    above-named

    to a retaliation claim under the

    However, the court found that the issue of whether the

    reduction

    in

    violated

    the

    plaintiff's
    ADEA's

    duties prior

    retaliation

    to

    provision,

    the
    29

    desk audit
    U.S.C.

    623(d),4 was triable.


    ____________________
    4.

    on

    claims, see supra


    ___ _____

    ruled,
    four

    judgment

    In pertinent part, 29 U.S.C.

    623(d) provides:

    It
    shall
    be unlawful
    for
    an employer
    to
    discriminate against any
    of his employees or
    applicants for employment . . . because such
    individual . . . has opposed any practice made
    unlawful by [the ADEA], or because such individual
    -33

    We

    consider only this

    Defendant Secretary argues

    that a reduction in

    not be an "adverse employment


    under Section
    F.2d 1169,
    (1991).

    623(d) under

    1179 (1st
    There,

    last claim to

    be raised.5
    duties could

    action" giving rise to a claim


    Connell v.
    _______

    Bank of Boston, 924


    _______________

    Cir.), cert. denied,


    _____ ______

    applying the

    rule that

    111 S.

    Ct. 2828

    where there

    is no

    direct evidence of retaliation, a plaintiff must demonstrate,


    inter alia, that s/he suffered an "adverse employment action"
    _____ ____
    in order to make out a prima facie showing of retaliation, we
    said,

    with respect to

    that phrase, "Most

    cases involving a

    retaliation claim are based on an employment action which has


    an adverse impact on the employee, i.e., discharge, demotion,
    or failure to promote."

    924 F.2d at 1179.

    The

    to

    Secretary points

    reads into them


    failure

    to

    action within

    a ruling that

    promote

    can

    the Act.

    every unpleasant

    the

    only discharge, demotion,

    constitute an
    We do not

    matter short

    letters "i.e."

    adverse

    agree.

    of those

    and
    or

    employment

    Concededly, not

    listed in

    Connell,
    _______

    ____________________
    . . . has made a charge, testified, assisted, or
    participated in any manner in an investigation,
    proceeding, or litigation under [the ADEA].
    5. Plaintiff also generally contends, without explanation,
    that, "unlike the plaintiff in Connell," he was harmed by the
    _______
    other alleged instances of retaliation cited above. We have
    repeatedly warned litigants that issues adverted to in a
    perfunctory manner and without developed argumentation are
    deemed waived on appeal. E.g., United States v. Innamorati,
    ____ _____________
    __________
    996 F.2d 456, 468 (1st Cir. 1993).
    Here, plaintiff's
    attempts to distinguish Connell with regard to the other
    _______
    alleged
    instances
    of discrimination
    are
    perfunctory.
    Accordingly, we regard them as waived.
    -44

    supra creates
    _____
    constant
    could

    a cause

    rudeness,

    have

    an

    of action, but

    many things,

    conspicuous discriminatory

    adverse

    reasonable limits, in

    effect

    upon

    employment.

    order to arrive at

    case by case review is necessary.

    an inadvertency for

    dictum far beyond

    the opinion that, after

    we

    do not

    have

    to

    etc.,
    Within

    a determination, a

    With respect, we take the

    court's "i.e." as

    feel

    acts,

    such as

    recognize.

    "e.g.", or, at

    most,

    consideration, we
    We say

    this

    fully

    realizing that, as

    newly constituted panels we

    bound by prior panel decisions

    on point.

    E.g., Broderick v.
    ____ _________

    Roache, 996 F.2d 1294, 1298 (1st Cir. 1993).


    ______
    for

    our

    reading

    reference

    of

    to "most

    pointing to

    Connell,
    _______

    appears

    cases" and

    incidents beyond

    to

    are normally

    Further support

    from

    that

    reliance upon

    mere "discharge,

    panel's
    precedent

    demotion, or

    failure to promote."
    The
    case

    fact, however, that

    could survive

    mean

    that

    Plaintiff's
    meant that he
    status.

    the

    a motion

    court

    for summary judgment

    could

    complaint was that


    would not be

    the action taken

    not

    thereafter

    the reduction in

    eligible for an

    in this
    does not

    weigh

    it.

    his duties

    upgrade in

    his

    As to this claim, the court made a finding, not here

    challenged,

    that plaintiff would

    upgrade in any event.


    plaintiff failed
    employment action

    not have received

    such an

    On this basis the court's finding that

    to make

    a prima

    must stand.

    plaintiff cannot make out

    facie showing of

    adverse

    And, as we have

    made clear,

    a prima facie case of

    retaliation

    -55

    without showing such

    adverse action.

    See Connell,
    ___ _______

    924 F.2d

    at 1179.
    Accordingly,

    we

    affirm

    the

    court's

    entry

    of

    judgment against plaintiff on his retaliation claim.6

    ____________________
    6.

    Because we affirm

    the court's ruling that

    plaintiff did

    not make out a prima facie case of retaliation, we need not


    reach
    plaintiff's challenge
    to
    the district
    court's
    alternative finding regarding pretext.
    -66

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