Clockedile v. New Hampshire Dept of Corrections

• Decision Date: 06 November 2000
• Docket Number: Nos. 00-1541,00-1578,s. 00-1541
• Citation: 245 F.3d 1
• Parties: (1st Cir. 2001) NANCY CLOCKEDILE, Plaintiff, Appellant/Cross-Appellee, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant, Appellee/Cross-Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

245 F.3d 1 (1st Cir. 2001)

NANCY CLOCKEDILE, Plaintiff, Appellant/Cross-Appellee, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant, Appellee/Cross-Appellant.

Nos. 00-1541, 00-1578

United States Court of Appeals For the First Circuit

Heard November 6, 2000

Decided March 30, 2001

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.

Before Selya, Boudin and Stahl, Circuit Judges

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.

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.

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:

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 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 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. 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 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 (...