530 F.3d 1 (1st Cir. 2008), 07-1539, DeCaire v. Mukasey

Docket Nº:07-1539.
Citation:530 F.3d 1
Party Name:Cynthia A. DeCAIRE, Plaintiff, Appellant, v. Michael B. MUKASEY, Attorney General,[*] Defendant, Appellee.
Case Date:March 11, 2008
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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530 F.3d 1 (1st Cir. 2008)

Cynthia A. DeCAIRE, Plaintiff, Appellant,

v.

Michael B. MUKASEY, Attorney General,[*] Defendant, Appellee.

No. 07-1539.

United States Court of Appeals, First Circuit.

March 11, 2008

Heard Jan. 7, 2008.

As Corrected July 10, 2008.

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[Copyrighted Material Omitted]

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Indira Talwani with whom Segal Roitman was on brief for appellant.

Stephanie R. Marcus , Attorney, Appellate Staff, Department of Justice, Civil Division, with whom Peter D. Keisler , Assistant Attorney General, Glenn T. Suddaby , United States Attorney, William H. Pease , Assistant United States Attorney, and Marleigh D. Dover , Attorney, Appellate Staff, Department of Justice, Civil Division were on brief for appellee.

Before TORRUELLA , LYNCH , and LIPEZ , Circuit Judges.

LYNCH , Circuit Judge.

Cynthia DeCaire, a Deputy U.S. Marshal, brought suit alleging that Anthony Dichio, then the U.S. Marshal for the District of Massachusetts, discriminated against her on the basis of gender and retaliated against her after she filed complaints with the Equal Employment Opportunity office. After a bench trial, the district court ruled against DeCaire on both claims. DeCaire v. Gonzales, 474 F.Supp.2d 241, 260 (D.Mass.2007) .

The district court held that Dichio did discriminate against DeCaire, that she was treated adversely after she complained, and that the government's explanations of neutral reasons were not persuasive. Id. at 260. Nonetheless, the court found Dichio's hostility was motivated by his perception that DeCaire was disloyal to him personally, and not by gender animus or retaliation. Id. The defense had never posed any such theory of motivation or so interpreted the facts on either claim. Dichio himself testified to no such motivation, nor did any witness. The facts of the record do not support the conclusions reached.

DeCaire appealed. In light of errors in the application of law and the lack of record support for the district court's factual conclusions, we vacate the verdict and remand for a new trial.

I.

On March 26, 2004, DeCaire filed suit in the District of Massachusetts alleging gender

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discrimination and retaliation under 42 U.S.C. §§ 2000e-16 and 2000e-3 , respectively. Id. at 244. She filed an amended complaint on July 7, 2004.

With respect to discrimination, DeCaire's amended complaint alleged that on account of her gender, she was assigned to weekly rotations in Worcester and Boston in or around January 2003; effectively demoted and transferred to Court Operations in Boston in February 2003; kept in Court Operations in Boston after additional employees were added to that unit; not transferred to the Boston warrants unit when an opening occurred there in or around March 2003; not assigned to the Warrant Coordinator position she sought in or around April 2003; not given the Acting Court Operations Supervisor position she sought in or around September 2003; not assigned to the Warrant Coordinator position she sought in or around September 2003; transferred to Worcester in October 2003; assigned to multiple duty stations in November 2003; assigned to the control room in the Boston federal courthouse in November 2003; and required to work in the control room with limited or no breaks. Am. Compl. ¶ 52.

With respect to retaliation, DeCaire alleged that after Dichio learned of her filing a complaint, she was transferred to a lesser position in Boston Court Operations in or around February 2003; kept in Court Operations after additional employees were added to that unit; not moved to the Boston warrants unit when an opening occurred there in or around March 2003; denied a promotion she sought to Court Operations Supervisor in or around April 2003; not assigned to the Warrant Coordinator position she sought in or around April 2003; denied an appointment to the Acting Court Operations Supervisor position she sought in or around September 2003; not assigned to the Warrant Coordinator position she sought in or around September 2003; transferred to Worcester in October 2003; assigned to multiple duty stations in November 2003; assigned to work in the Boston courthouse's control room in November 2003; and required to work in the control room with limited or no breaks. Am. Compl. ¶ 54.

The government filed a motion for summary judgment on both claims, which was denied.1 DeCaire, 474 F.Supp.2d at 245 .

DeCaire waived her right to a jury trial, and an eight-day bench trial began on June 2, 2005. Id. On February 23, 2007, the district court ruled in favor of the government on both claims. Id. at 241.

A.

At the crux of this case are the district court's ultimate conclusions rejecting the gender discrimination and retaliation claims. DeCaire's appeal argues that these conclusions rest on errors of law and are not supported by the record.

DeCaire argues that there was error in the gender discrimination claim in the court's utilizing a mixed motive analysis, which was raised sua sponte by the court. Even if use of a mixed motive analysis were appropriate, a finding of mixed motive would only constrain remedies. Indeed, DeCaire argues, once the district court found Dichio had engaged in gender discrimination, it was required to find liability.

The district court's conclusion there was no retaliation, DeCaire alleges, is based on four different errors of law. First, the

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court improperly imported a gender discrimination component into the standard for proof of retaliation. Second, the court imposed a new loyalty defense not recognized under retaliation theory. Finally, the court improperly discounted the close temporal relationship between events and imposed a heightened burden on DeCaire.

DeCaire's final appellate claim is that several of the court's factual conclusions regarding Dichio's motivations are clearly erroneous when measured against the evidence in the case. In particular, she challenges the district court's conclusions that Dichio discriminated and took post-complaint actions against her because he perceived her as disloyal and because of his hostility toward two others, Jeffrey Bohn and Paul Durette.

B.

We turn first to the evidence before the district court, and view the evidence in the light most favorable to the verdict, focusing on the evidence most relevant to the factual conclusions being challenged. Where there are credibility disputes, we credit the district court's conclusions. The district court found that DeCaire was “credible in virtually every respect," and that the credibility of Dichio was “extremely suspect." 2 Id. at 248.

1. DeCaire and Susan Williams

DeCaire began her employment with the U.S. Marshals Service in June 1991 in Boston under a different Marshal, as an “082," the entry-level Deputy U.S. Marshal (“DUSM" ) position. By all accounts, DeCaire's career with the Marshals Service was successful until Dichio's appointment. In December 1993, she was promoted to Criminal Investigator DUSM, position 1811, grade 11. In 1995, she was assigned to the FBI Violent Fugitive Task Force in Boston. In December 1996, DeCaire was promoted to Senior Criminal Investigator DUSM, position 1811, grade 12. In 1999, DeCaire was assigned to the Warrant Investigations Unit in Boston. On June 3, 2001, DeCaire became Acting Supervisory Criminal Investigator in the District's Worcester office, a temporary position.

DeCaire served in her acting supervisory position in Worcester until September 23, 2001. While in that position, she received a Superior Accomplishment Award. After September 23, DeCaire returned to the Boston office, where she served as a Team Leader in the Warrant Investigations Unit.

On August 6, 2002, Anthony Dichio was sworn in as U.S. Marshal for the District of Massachusetts.

By August 2002, DeCaire was romantically involved and living with another DUSM, Jeffrey Bohn, close to Worcester. Their relationship was common knowledge within the office. When Dichio first arrived, Bohn was serving as Acting Supervisor of the New England High Intensity Drug Trafficking Area (“HIDTA" ) task force. Approximately one month after Dichio's arrival, Bohn was promoted to Supervisor of the HIDTA task force in Boston.

Dichio conducted introductory interviews with all of the DUSMs in the District soon after his arrival. He interviewed DeCaire in late August 2002. At trial on June 2, 2005, DeCaire testified that during her initial interview with Dichio, he asked whether she wanted to be in the Worcester office, which was closer to her home. She replied that while once she had such an interest, she no longer did

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because she enjoyed her position in the warrant unit in Boston and she had worked hard to get it. He then talked about family and how family should always come first. He asked her marital status and she replied she was divorced. Dichio asked if she had any children, and DeCaire responded she had a young daughter. He also asked where her ex-husband lived and whether he supported DeCaire; DeCaire replied he did not support her.

Dichio kept returning to why DeCaire did not want to be in Worcester, which he could not understand. DeCaire replied by telling Dichio about the importance of her career and that there were not many opportunities for her in the Worcester office unless there was an opening on the HIDTA task force there. Dichio also asked about her personal relationships. She replied that she was living with Jeffrey Bohn and that her former aunt (by marriage) was a state trooper who worked on the HIDTA task force in Worcester.

At trial, Dichio presented a different account of his initial interview with...

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