Roman v. Potter

• Citation: 604 F.3d 34
• Decision Date: 05 May 2010
• Docket Number: No. 09-1600.,09-1600.
• Parties: Carmen J. ROMAN, Plaintiff, Appellant,v.John E. POTTER, United States Postmaster General, United States Postal Service, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

604 F.3d 34

Carmen J. ROMAN, Plaintiff, Appellant,v.John E. POTTER, United States Postmaster General, United States Postal Service, Defendant, Appellee.

No. 09-1600.

United States Court of Appeals, First Circuit.

Heard March 1, 2010.

Decided May 5, 2010.

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Victoria A. Ferrer-Kerber, for appellant.

Ray E. Donahue, Special Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LYNCH, Chief Judge.

Carmen Roman appeals from the entry of summary judgment on her Title VII retaliation claims against the United States Postal Service (“USPS”) management in San Juan, Puerto Rico, after she earlier filed an Equal Employment Opportunity (“EEO”) complaint alleging discrimination, and on her claims under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615. See Roman v. Potter, No. 06-1941 (D.P.R. Mar. 9, 2009). On appeal, Roman's primary argument is that there were disputed issues of fact precluding entry of summary judgment on claims under both statutes.

We need not decide the questions of Title VII statutory interpretation regarding whether Roman, as a federal employee, has cognizable retaliation claims and, if so, whether they arise under Title VII's federal employee anti-discrimination provision, 42 U.S.C. § 2000e-16(a), or under Title VII's private sector retaliation provision, 42 U.S.C. § 2000e-3(a), which would invoke the Supreme Court's ruling in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Even under the most generous interpretation of Title VII towards Roman, her claims fail. We affirm the district court's thoughtful decision.

I.

The general undisputed facts follow; the facts are set forth in greater detail in the district court's opinion. See Roman, slip op. at 2-9. More particular facts as to each claim are described in the discussion of those claims.

Roman began her employment with the USPS in 1978. In March 2000, she was promoted to Customer Relations Coordinator, reporting to the Postmaster in San Juan. In 2002, Roman was detailed by an interim Postmaster to work in the Marketing Department for the USPS's Caribbean District office. Roman continued some of her duties as Customer Relations Coordinator but was also given new responsibilities by the Acting Manager of Marketing. While Roman was on detail to the Marketing Department, Grace Rodriguez was appointed the new Postmaster of San Juan.

On December 1, 2004, Roman's manager, Candido Lopez, informed her that Postmaster Rodriguez, whom Roman had never met or spoken with before, wished to meet with Roman. Lopez told Roman that Rodriguez, after conducting a study, had determined that the position of Customer Relations Coordinator was no longer necessary. Rodriguez wanted Roman to consider either shifting to the position of Family Medical Leave Act Coordinator or applying for a permanent position in the Marketing Department so that the customer relations position could be abolished. Roman flatly refused to meet Rodriguez or to discuss another position. Because Roman did not apply for a Marketing Department position, Roman's detail to the Marketing Department was to end on October 4, 2005. At that point, Roman was to return to the supervision of the Postmaster of San Juan, now Rodriguez.

On December 17, 2004, Roman filed a complaint with the EEO compliance office of the USPS, claiming discrimination on the basis of age, sex, and religion. She cited, among other things, Rodriguez's effort to abolish her position. Rodriguez and others at the USPS learned about this complaint and were interviewed by EEO staff at some point before March 16, 2005, when the USPS EEO office issued a pre-complaint counseling letter detailing its investigations.

Roman claims that in the months after Rodriguez learned of Roman's EEO complaint, Rodriguez and the Acting District Manager for the Caribbean, Pablo Claudio, retaliated against her by, inter alia, disciplining her for traffic violations in July 2005; changing her job responsibilities in August and September 2005; on one occasion in September 2005, bumping into her as she was passing through a doorway; and temporarily withholding her pay while she was on leave in late November and early December 2005.

Just before Roman's detail to the Marketing Department ended and she was required to report to Rodriguez as her new manager, Roman took FMLA sick leave, beginning October 3, 2005, citing to stress associated with the claimed retaliation. She never showed up for work again; she never reported to or even met with Rodriguez. Roman remained on leave until November 30, 2006, when all of her accrued sick and annual leave time had been exhausted, and then, at the age of fifty-five, retired from the USPS.

II.

Having exhausted her retaliation claims administratively,¹ Roman then filed suit in federal district court in Puerto Rico against John E. Potter, United States Postmaster General, in his official capacity on September 21, 2006. Roman's amended complaint alleged (1) individual acts of retaliation, a retaliatory hostile work environment, and constructive discharge, all under Title VII, 42 U.S.C. § 2000e-3(a), and (2) denial of her FMLA rights and retaliation under 29 U.S.C. § 2615. In March 2009, the district court granted summary judgment in Potter's favor and dismissed the case with prejudice. Roman, slip op. at 20.

III.

We review a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006). “We may affirm the district court on any basis apparent in the record.” Chiang v. Verizon New England Inc., 595 F.3d 26, 34 (1st Cir.2010).²

A. Individual Acts of Retaliation

We turn first to Roman's five specific retaliation claims. Roman argues on appeal that the district court erred in finding that she had not made out a prima facie case of retaliation. She incorrectly argues that the district court looked only to whether she had suffered adverse employment actions and that the court should have considered more broadly whether she had been subject to any “materially adverse” action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation marks omitted); Billings v. Town of Grafton, 515 F.3d 39, 51 (1st Cir.2008). In fact, the district court did consider the evidence under the Burlington Northern standard.

Potter insists that Roman, as a federal employee, can at most only bring a retaliation claim for “personnel actions affecting employees” under Title VII's federal employee anti-discrimination provision, 42 U.S.C. § 2000e-16(a). ³ The broader standard, Potter argues, applies only to private sector retaliation claims, under 42 U.S.C. § 2000e-3(a), pursuant to the Supreme Court's decision in Burlington Northern. Roman counters that she may, nonetheless, bring her claim under the broader standard because § 2000e-3(a) is incorporated into Title VII's federal employee anti-discrimination provision through § 2000e-16(d) and 42 U.S.C. § 2000e-5(g).

The Supreme Court has not decided whether federal employees can make retaliation claims under Title VII. The Court alluded to some of these arguments in Gomez-Perez v. Potter, 553 U.S. 474, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008), but did not resolve them. Id. at 1941 & n. 4. Before Gomez-Perez this court had recognized retaliation claims by federal employees under § 2000e-3(a). See, e.g., DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008).

Here, we need not address these questions, or whether the actions alleged by Roman, under Burlington Northern, “might well have dissuaded a reasonable employee from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. We assume, dubitante, that Roman made out a prima facie case as to all of her Title VII retaliation claims. Nonetheless, Roman's claims fail under the McDonnell Douglas burden-shifting approach because she has not shown either pretext or that the acts at issue resulted from retaliatory animus in light of the employer's explanation. See Enica v. Principi, 544 F.3d 328, 343 (1st Cir.2008).

Once a plaintiff makes out a prima facie case of retaliation, the burden shifts to the defendant, Potter, to “articulate a legitimate, non-retaliatory reason for [the USPS's] employment decision[s].” Id. If Potter provides such a reason, the burden shifts back to Roman to “show that ‘the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus.’ ” Id. (quoting Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 26 (1st Cir.2004)).

Roman alleges five incidents of retaliation; as to each, we conclude that Potter has provided legitimate, nonretaliatory reasons for the actions and Roman has not provided evidence that would permit a reasonable factfinder to find either pretext or retaliatory animus. See Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 857 (1st Cir.2008). We note that during this period of claimed retaliation she received favorable performance evaluations, a bonus, and no reduction in pay or benefits.

1. The most serious of the retaliation claims concerns the USPS's initial failure, beginning with Roman's November 18, 2005, paycheck, to immediately approve pay for Roman as part of her FMLA leave for a period of approximately four weeks in late November and early December 2005. Rather, the USPS records showed her as away without leave-a consequence of a mistake described below. It is undisputed that Roman received all of her withheld pay in January 2006.⁴ Potter does not dispute that Roman was approved for FMLA leave from September 3, 2005, through March 3, 2006. Nor...