USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 96-1950
JEAN M. RANDLETT,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY,
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
____________________
Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Robert Le Roux Hernandez for appellant.
Lori
J.
Holik,
Assistant
United States Attorney, with whom Donald
Stern, United States Attorney, was on brief for the United States.

____________________
July 10, 1997
____________________

BOUDIN, Circuit Judge.

This appeal brings to the

court

the
most
recent chapter in a 20-year quarrel between a federal
department
and
its
former employee, Jean Randlett.
an

It presents

important
legal
issue
concerning the reach of the protection
afforded by

Title VII of

U.S.C. S 2000e
protection

et seq.

against a

employee,

but

that

the Civil Rights

We hold

retaliatory
no

evidence

Act of 1964,

that Title
refusal
existed

VII can
to

offer

transfer

here

42

to

an
show

retaliation.
I.
Because Randlett's claims
summary

judgment, we

state

were resolved against her

the

facts in

the

light

on
most

favorable
to
her.
Sargen
t v. Tenaska, Inc., 108 F.3d 5, 6 (1st
Cir. 1997).

In 1975, Randlett worked in Denver in the Office

of Civil Rights

of the Department

of Health, Education

and

Welfare
as
an
equal
opportunity specialist with a civil service
grade

of GS-12.

She

applied for

a promotion

to a

GS-13

position
in
Denver
but
was denied promotion in favor of another
candidate.

A few

months

later, in

August 1975,

she

was

terminated.
Randlett

filed a

complaint with

the Equal

Employment

Opportunity
Commission,
alleging discrimination based on gender
and national origin

(she is white and of European

descent).

Six
years
later, the EEOC ruled in her favor, finding that the
record

showed

"[n]o

other

credible

reason

for

[her]

-2-2-

nonselection

. . .

other than the

fact that the

official wanted to insure that the Hispanic male was

the GS-13 position."

selecting
awarded

It found that Randlett's discharge

similarly motivated by discriminatory animus.

was

In particular,

the EEOC

found that the

official who considered

Randlett's

promotion
had applied pressure on the selecting panel to alter
its
rankings, which favored Randlett, so that the job could go
instead to a friend of the selecting official.
The

EEOC's 1981

order

directed

the

Department,

now

metamorphosed
into
Health and Human Services ("HHS"), to cancel
Randlett's 1975
Randlett

in

discharge

and

Denver

office

the

to

"immediately
as

an

equal

reinstate"
opportunity

specialist,
grade GS-13.
pay

and

other

The order also awarded Randlett back

entitlements

for

the

period

since

her

termination,
and
it
required HHS to report within 30 days as to
the
steps
it
planned to take to implement the required action.
In late

June

extensive exchange

1981, Randlett
of

began

telephone calls

what would
and

be

an

correspondence,

primarily with

Thomas Jefferson,

an HHS

official based

in

Washington,
D.C., who was apparently charged with coordinating
Randlett's
Taphorn,

reinstatement.
a personnel

She

official in

also talked
the Denver

with

Patricia

office.

The

upshot,
according to Randlett, was an agreement that she would
return
to
the payroll of the HHS Denver office as of August 9,

-3-3-

1981, but by using four weeks of accumulated leave, would not

actually report for work until early September 1981.
According
to
both
Randlett and Taphorn, Jefferson was very
difficult to reach over the course of the summer and did
act quickly enough to

confirm this understanding, nor

not
would

anyone else in the Washington office take responsibility

for

doing
so.
We
pass
over
the details, but there is no indication
that
anything other than bureaucratic sloth was the cause.

In

any
event,
in August 1981, Randlett signed a contract with her
then-current employer, the Barnstable, Massachusetts,

school

system,
extending her employment there for an additional year.
Not

long afterwards,

Randlett received

Jefferson, confirming that she

office

as

of

September

a letter

was reinstated in the

1981;

he

also

referred

from
Denver

to

the

possibility
of a transfer to another regional office, but said
that

this was

not certain.

Further

telephone calls

were

exchanged,
and
the
matter was still unresolved in October 1981,
when Randlett's father became

seriously ill.

Randlett

then

told
Jefferson that she would need to stay in Massachusetts to
care for her father.
After
further
confusion,
Randlett in February 1982 secured
from
another
HHS
official in Washington a temporary "detail" to
a Boston HHS office, effective March 1, 1982, for a period of
not

more than

120 days.

The

official--Betty Lou

Dotson,

director of the Office for Civil Rights--wrote Randlett

that

-4-4-

the
detail
was
"granted
to accommodate your personal situation"
and
concluded
by
saying
that "I trust this detail will give you

the opportunity to attend to your personal responsibilities."

Randlett resigned from

her schoolteaching position

and

began
working
in
the
Boston HHS office in March 1982.

By then,

her
father
had
died,
but
her aging mother's health was failing.
Randlett also claims that,
experience problems

in

the

almost immediately, she began

Boston HHS

office

to

because

of

inadequate training on work assignments, that she received

"low satisfactory" ranking in an evaluation, and that she was

listed
at
a
GS-12
level
in Boston (even though she continued to
receive a GS-13 salary).
According to Randlett, Jefferson called her in May
and asked her when she planned to return to Denver.

1982

Randlett

replied
that
she thought her position in Boston was permanent,

but in

June 1982, she

sent a letter

to HHS in

Washington,

requesting
a
permanent assignment to the Boston office, saying
"this
is
an
unusual request, but probably no more unusual than
the six and a half years of injustices" that she had endured.
It appears that Randlett also had a telephone conversation on
the subject with Bart Crivella, Jefferson's supervisor.
In
early
July
1982,
the
request was answered in writing by
Nathan

Dick, the

Rights.

Dick's

deputy director

of the

Office for

letter denied the transfer request but

Civil
said

that HHS was willing to extend the temporary detail in Boston

-5-5-

until

September
30,
1982, with Randlett returning on October 1,
1982, to her "permanent duty station in Denver."

The

letter

explained:
[I]t
is
not
possible for the Office for Civil Rights
to
offer
you
a permanent assignment in Boston.

Your

requested
assignment and subsequent detail to Boston
was
a
temporary action taken only to accommodate you
during
the
adjustment period after the death of your
father. . . .

However, the recent RIF actions

in

the
regions
and the continuing ceiling and budgetary
constraints

have

eliminated

practically

any

potential
options for this office [in Washington] to
assign you

to

the Boston

office on

permanent

basis.
In September, Randlett received another letter from Dick
requesting
her
to

report
for work in Denver on October 1, 1982.
Randlett
then
filed
a
complaint with the EEO officer in Boston,
alleging
that
Washington
officials were retaliating against her
"for having filed a previous complaint in Denver . . .
was resolved in my favor."

which

Randlett's new complaint named as

the
persons
who had retaliated against her Jefferson, Dick and
Crivella.
Instead
of
reporting
to
work in Denver on October 1, 1982,
Randlett arranged
Boston for

to use accrued

the remainder

Randlett's prospective

of the

leave credits
year.

supervisor in

to stay

In November

Denver, Alex

in

1982,

Aguilar,

confirmed
the request for leave from October 1 to December 31,
1982; but the letter also said that Aguilar expected Randlett

to report

for work

on January 3,

1983, and

that he

would

-6-6-

consider
any
request for further leave to be "unreasonable and
not in the best interests of our organization."
Randlett then asked Aguilar for leave-without-pay status
after December 1982.

Aguilar refused, saying that Randlett's

"prolonged" absence was detrimental to his office.

Randlett

then
asked
for
sick
leave.

Aguilar wrote that the agency might

be
able
to
make
health-related accommodations for her in Denver
so long

as she documented her

ailments; but some two

later Aguilar told Randlett that the documents she

weeks

submitted

were not adequate.

that it

was done

In March 1983, Randlett resigned,

involuntarily to

harassment" from Aguilar

or "any

saying

prevent any

"additional

other further

retaliatory

acts."
Randlett's
September 1982 complaint--directed against the
three named Washington officials--was originally rejected
HHS on the ground that
reversed by

it was untimely, but this ruling

the EEOC in 1985.

internal investigation

Incredibly, the ensuing

lasted over seven

years.

In

by
was
HHS

August

1992, an HHS administrative law judge denied Randlett's claim

of retaliation.

His

denial was

sustained by

the EEOC

in

November 1993.
In
December
1993, Randlett filed her present complaint in
the federal district court under Title VII.

The core of

the

complaint
was
that
"[a]lthough HHS had full power and authority
to
assign
plaintiff a permanent position in the Boston office,

-7-7-

it unreasonably refused to do so in order ultimately to force

plaintiff
to
resign."
The complaint attributed this refusal to
retaliation for Randlett's successful 1975 complaint

against

the department, saying that hardship transfers were routinely

granted to individuals with

hardship requests similar to

or

less serious than Randlett's.

Randlett
also charged that she had been given an improper
"low satisfactory" performance rating and inadequate training
in Boston.

She asked for "[r]einstatement to her position in

Boston" with back pay and benefits and reimbursement for some
health insurance premiums and out-of-pocket medical expenses.
She
also

sought
compensatory and punitive damages of $1 million
each.
After a

period

of

discovery, HHS

moved

for

summary

judgment.
It argued that the denial of permanent transfer was
not
an
adverse employment action under Title VII, and that the
agency
had
made
an
effort to accommodate Randlett's requests by
granting

a temporary detail

required

to go further.

to Boston but

HHS also

that it was

supplied the court

not
with

correspondenc
e and a transcript of Randlett's testimony in the
EEOC's recent investigation.
Randlett
responded
with
her own version of events and also
submitted
affidavits from HHS employees attesting that HHS did
approve
hardship
transfers with some regularity, and suggesting

that she could

have been accommodated in the Boston

office.

-8-8-

The most dramatic affidavit was submitted by an EEOC employee

who
had
previously worked in the Denver HHS office.

According

to
the
affiant, in the spring of 1982 he had been talking with
Aguilar about a GS-13 position in the Denver office and asked
if it was going to be filled permanently and if so, by

whom.

The affidavit continued:

Alex

Aguilar told

me "That

position [cannot]

be

filled
permanently until the matter of Jean Randlett
is resolved, but I

am going to make sure that

she

does not come to Denver.

We are going to put a lot

of

she will

pressure on

her

so

not

return

to

Denver."
On June

5, 1996, the

district judge

issued a

29-page

memorandum
and
order
granting HHS' motion for summary judgment.
The decision dealt in different ways with Randlett's
claims, as will appear from our own discussion.

various

The decision

went some distance in the direction that HHS had urged in its
original
motion, holding that "rejection of Randlett's request
to
continue
to stay in Boston for personal reasons is not a[n]
adverse action cognizable by federal law."
II.
A grant of summary judgment is subject to de novo review
on appeal, and this includes any claim that the evidence made
out a material issue of fact that precludes summary judgment.
Sargent
,
108
F.3d at 6.

Before addressing the central issue--

the denial of Randlett's request for a transfer to Boston--we

consider
briefly, and then put to one side, certain rulings by
the district court that require no extended treatment.

-9-9-

In the district court, Randlett urged that she had

"promised"

a permanent

Assuming arguendo

transfer

that such a

to

Boston

by

been

Jefferson.

"promise" might receive

some

special protection, the district court carefully reviewed the

pertinent proffers

of

evidence,

exchanged

between Randlett

concluded

that no

and the

reasonable jury

promise had been made.

especially

the

documents

Washington office,
could find

and

that such

Without repeating the details,

which

are set forth in the district court's decision, we agree with

this ruling.
The district
claim that

court also made

she had received

short work of

Randlett's

inadequate training in

Boston,

saying
that
even if this were true, there was no evidence that

it was based upon a

motive to retaliate against her for

earlier complaint.

her

"At most," the district judge ruled, "the

evidence shows that the

Boston assignment was an

designed and

expedient

temporary

to

awkwardly-

accommodate

Randlett

pending
her
return
to
the duty station [Denver] directed by the
1981 EEOC decision."

This ruling also is well supported.

The
district
court
also
rejected Randlett's claim that she
was improperly listed

as a GS-12 employee in Boston,

saying

that this was not an adverse employment action since Randlett

continued
to
be
paid
at
the GS-13 level.
on a narrower ground:

We affirm this ruling

no evidence exists that this

Boston-office "error" was motivated by a desire to

-10-10-

alleged
retaliate

against Randlett

for filing a

complaint seven years

before

against
a
different HHS office.

Whether in some other case an

inaccurate listing could be an adverse action under Title VII

need not be pursued here.
The
central
issue is HHS' refusal to transfer Randlett to
the
Boston
office.
a[n] adverse action
said that not

The district court said that this was "not

cognizable by federal law," but it

even a "scintilla

of evidence" supported

also
the

claim
"that
the agency retaliated against Randlett by refusing
to
provide
a
permanent transfer to Boston for hardship reasons
or to extend her temporary detail."

These are two

reasons, one relating to law and the other to fact.

different

The
more
difficult
of
the two is the legal question:
types of employer actions adverse to the employee can,

what
where

improperly

district

motivated, give rise to a Title VII complaint.

The

judge, arguably

the

supported

by

references

in

decisions of a few other courts, accepted HHS' argument

the refusal

of a lateral transfer

agency does

not rise to the

action compensable

to another office of

level of an adverse

under

Title

itself

says

VII--even if

that
the

employment

done

for

an

improper motive.
The

statute

that

an

employer

may

not

"discriminate" against an employee or applicant "because [the

employee
or
applicant] has made a charge . . . or participated
in
any
manner" in a Title VII investigation or proceeding.

-11-11-

42

U.S.C.
S
2000e-3(a).
Elsewhere, the statute lists actions that
can
constitute discrimination, specifying a refusal to hire, a
discharge, or any

discriminatory treatment

with respect

to

"compensation,
terms,
conditions, or privileges of employment."
Id. S 2000e-2(a).

Arguably, the two sections should be

read

together.
Even so, "terms,

conditions, or

privileges" is

pretty

open-ended
language.

It obviously includes opportunities that

are not strictly entitlements, Hishon v. King & Spalding, 467

U.S. 69, 75-76 (1984) (promotion to partner); and a number of
cases have extended coverage
might seem
Transp., 92
tedious

to slights or indignities

evanescent, e.g., McKenzie

F.3d 473, 484

(7th Cir.

that

v. Illinois Dep't
1996) (employee

of

given

minor duties); Aviles-Martinez v. Monroig, 963 F.2d 2,

6 (1st Cir. 1992) (daily ridicule in clients' presence).
On occasion, disadvantageous transfers have been treated
as
potentially
within
the scope of Title VII.

E.g., Collins v.

Illinois
,
830 F.2d 692, 702-04 (7th Cir. 1987) (citing cases).
The main authority cited by the district court, Haimovitz
United States

Dep't of Justice, 720

F. Supp. 516 (W.D.

v.
Pa.

1989),
aff'd
,
902 F.2d 1560 (3d Cir. 1990), did reject a claim
where the employee had been transferred to another

location;

but
while
the
opinion
is
not crystal clear, the main reason was
apparently
a
failure to show an illegal motive. Id. at 525-27.

-12-12-

Here, the claim concerns a refusal to transfer, arguably

less intrusive than
affidavits make clear

involuntary relocation.
that at HHS

But

Randlett's

a permanent transfer

for

hardship
reasons is a common enough practice and so arguably a
"privilege"
of
employment.

For Randlett, the transfer here was

doubtless as important as a promotion.

Assuming an

improper

motive,
it
is hard to see why denial of a hardship transfer in
this case could not

be discrimination under Title VII.

See

Bauman
v.
Blo
ck, 940 F.2d 1211, 1229 (9th Cir.), cert. denied,
502 U.S. 1005 (1991).
No doubt construing the statute in this manner opens the
way

to

whimsical claims

by

employees

who

complaints and are now aggrieved by slights.

earlier

filed

Possibly, there

is room for a de minimis threshold, Williams v. Bristol-Myers

Squibb Co., 85 F.3d

270, 274 (7th Cir. 1996), and

certainly

good reason to insist on firm evidence of improper motive

the employer.

But

given the

impact on

Randlett, and

by
her

affidavits about customary practice, we cannot accept the HHS

view
that
a
refusal to transfer is automatically outside Title
VII.
We turn, therefore, to the district court's

alternative

ground, namely, the lack of a "scintilla of evidence" to show

retaliation.
To
make
out a retaliation claim requires not only
an
adverse
employment action and previously protected conduct,
but
also
a
colorable showing that "a causal connection existed

-13-13-

between
the
protected
conduct and the adverse action."

Fennell

v.
First
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
In
other
words,
the
adverse action must have been taken for the
purpose of retaliating.
plaintiff must

And to

point to some

pertinent decisionmaker.

defeat summary judgment,

evidence of

retaliation by

a
a

Id.

The
denial
of
a
permanent transfer to the Boston office is
the

principal decision

challenged

by Randlett,

and

every

indication
is
that
this
decision was made by the HHS Office for
Civil
Rights

in
Washington.
Washington

office

and

Randlett herself wrote to

Randlett's request was made to the

denied

by

the

Washington

office.

the Boston EEO officer a few

after filing her complaint to say that the concern was

days
"with

the
actions
of OCR [Office of Civil Rights] in Washington, not
Denver."
See
generally Long v. Eastfield College, 88 F.3d 300
(5th Cir. 1996).
It was thus

incumbent on Randlett, to justify trial

on

this
issue,
to
point
to
some evidence to show that officials in
the Washington establishment had refused a permanent transfer
to retaliate against
Mesnick

Randlett for her

v. General Elec.

Co., 950 F.2d

1975 complaint.

See

816, 822 (1st

Cir.

1991),
cert.
denied, 504 U.S. 985 (1992).

This need to show a

connection exists whether Randlett was seeking to make out

prima
facie
case
or
by
independent evidence challenging the HHS
explanation

as pretext

and urging

independent evidence

of

-14-14-

discrimination.

Fennell, 83 F.3d at 535.

The latter is

the

better
perspective
since
(even before the lawsuit began) Dick's
letter did

explain

HHS'

reasons for

denying

permanent

transfer.
The
difficulty for Randlett is that there is virtually no
evidence

that HHS

officials in

Washington acted

out of

retaliatory
motive
in
denying the permanent transfer to Boston.
Randlett's
main

argument
for inferring an improper motive--that
is, a connection

to her previous complaint--is based on

her

affidavits about HHS practice in granting hardship transfers.

If HHS handed out transfers as a matter of course whenever an
employee showed a hardship need, it might well be

suspicious

were Randlett alone singled out for a denial.

But
in
fact
there
is
no
showing that in denying Randlett's
request,
HHS
was departing from its usual practice.
read, all that the

affidavits say is that HHS often

hardship transfers in similar

that HHS granted
convenience of

Carefully

cases; there is no

them invariably and

the agency.

And

granted

indication

without regard to

in this

instance HHS,

the
in

denying
Randlett's request, explained that reductions in force
("RIFs")
and
budget
cuts
had reduced its flexibility and it was

not convenient to the agency to transfer Randlett permanently

to Boston.
Randlett's only

other

evidence is

several

affidavits

describing
reassignments and hires within the Boston office in

-15-15-

or

around

1982.

This

confirms

that

there

were

some

reassignments
(due, at least in part, to the RIFs mentioned in
Dick's letter) and at least one new hire for a GS-12 position
after Randlett's resignation.
shows retaliation
conclude that
produced a

some

GS-13

against

But nothing in the

Randlett.

other mix
position for

At

most,

of reassignments

affidavits
one

might

might

have

Randlett, doubtless

to

the

of

the

disadvantage of some other employee.

Whatever

inference

might be

drawn

from

any

affidavits
has
to
be
set
against other facts.
Jefferson

may

have

been

reassignment to Denver,
were responsible

for

in

arranging

However careless
Randlett's

higher officials in
refusing the

permanent

timely

Washington--who
transfer--had

helped Randlett from the start, both by securing a

temporary

position in Boston and by deferring her start date in Denver.

Taking everything

together, no basis

exists for

a jury

to

conclude that the

permanent transfer was denied in order

to

retaliate.
Our

causation analysis

Randlett's claim related to

would

be

quite

different

if

Aguilar's action in refusing

to

grant an additional temporary delay to Randlett to permit her

to delay reporting to duty in Denver in early 1983.

The tone

of
Aguilar's
alleged
remarks, quoted above, might create a jury
issue as

to

Aguilar's

own motive

in

refusing

Randlett's

requests to him.

This is so even though, absent the remarks,

-16-16-

the Denver

office had good

reason for

wanting Randlett

to

report
to
duty
(apparently, it was paying for Randlett's detail
to Boston and had to leave her permanent position unfilled).
We need not

decide this issue because Randlett has

not

complained of the Denver office's denial of further temporary

deferrals

in

her

reporting

date.

Rather,

her

1982

administrativ
e complaint, which was the condition precedent to
this lawsuit, see 42 U.S.C. S 2000e-5(f), is directed at

the

Washington
officials' denial of a permanent transfer.

That is

the
relief
she seeks in the district court.

No claim was made

concerning
Aguilar's denial of a further temporary deferral of

her return to Denver.

The

statutory

regime

requiring

exhaustion

of

administrative
remedies
itself precludes any effort by Randlett
at this late date to develop and pursue a new charge directed
against Aguilar's own conduct in refusing further

deferrals.

Lattimore
v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
Nor is this some slip

of the pen:

situation makes clear that

Washington's

denial

Accordingly, Aguilar's
motive,

of

everything in

Randlett's

the central grievance relates

a

permanent

actions

would not support

in

transfer

Denver,

a trial of

to

to

Boston.

whatever

their

the only claims

that

Randlett has made and preserved.

No one

can view

with

pride HHS'

record of

delay

in

investigating this case or fail to sympathize with Randlett's

-17-17-

predicament-a job in one city and an aging parent in another.

At oral argument, we
settlement and

asked

program, delaying

forcefully urged the parties to seek

them

to use

our

this decision until

court's

settlement

we were advised

that

efforts
at
settlement had failed.

It will now be obvious that

both sides would have gained through a settlement.

In sum, we affirm the decision of the district judge

on

the grant of summary judgment, although our reasoning differs

in certain respects, and we decline to order costs for either
side.

It

appears from the briefs

and oral argument that

ministerial
issue
relating to the calculation of certain health
insurance
benefits due to Randlett remains to be resolved.
therefore

remand the

limited purpose.

case to

the district

court for

We
this

It is so ordered.

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