Hazel v. U.S. Postmaster General

• Decision Date: 04 May 1993
• Docket Number: No. 92-1816,92-1816
• Citation: 7 F.3d 1
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 43, 62 Empl. Prac. Dec. P 42,617, 62 USLW 2295 George E. HAZEL, Plaintiff, Appellant, v. U.S. POSTMASTER GENERAL, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

7 F.3d 1

63 Fair Empl.Prac.Cas. (BNA) 43, 62 Empl.

Prac. Dec. P 42,617,

62 USLW 2295

George E. HAZEL, Plaintiff, Appellant, v. U.S. POSTMASTER GENERAL, Defendant, Appellee.

No. 92-1816.

United States Court of Appeals First Circuit.

Heard May 4, 1993.

Decided Oct. 14, 1993.

Stephen E. Kiley with whom Kiley & Hazel, Lynn, MA, was on brief for plaintiff, appellant.

David G. Karro, Atty., Appellate Div., U.S. Postal Service, Washington, DC with whom A. John Pappalardo, U.S. Atty., Gwen R. Tyre, Asst. U.S. Atty., Boston, MA, R. Andrew German, Chief Counsel, Appellate Div., and Cynthia J. Hallberlin, Atty., Appellate Div., U.S. Postal Service, Washington, DC, were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, FEINBERG, ^* Senior Circuit Judge, and STAHL, Circuit Judge.

FEINBERG, Senior Circuit Judge.

Plaintiff George E. Hazel appeals from a judgment of the United States District Court for the District of Massachusetts, Robert E. Keeton, J., granting a motion by defendant-appellee Anthony M. Frank, Postmaster General of the United States, for judgment on partial findings pursuant to Fed.R.Civ.Proc. 52(c). Hazel, a former postal employee, had alleged that the Postal Service violated his civil rights when it fired him in retaliation for providing legal advice to another postal employee in her sex and age discrimination claims against the Postal Service. For the reasons stated below, we affirm.

Background

George Hazel joined the Postal Inspection Service in 1971. The events giving rise to this action began on August 27, 1984 when Hazel's immediate supervisor, John Cinotti, gave him a "very good" evaluation only to have the next higher supervisor, M.W. Ryan, change it to "good," with the explanation that Cinotti had not justified the "very good." Hazel thought Ryan was reacting to the fact that Hazel was representing an Inspection Service clerk who had charged Ryan with sex and age discrimination. Hazel thought his suspicions were confirmed on September 5, 1984, when Ryan told him he would be transferred from the Fraud Section, where Hazel had been for 13 years, to the Audit Section--despite the fact that he had no auditing or accounting background. Moreover, according to Hazel, audit assignments, unlike fraud assignments, are very undesirable.

After learning of Ryan's intention to reassign him, Hazel contacted an Equal Employment Opportunity (EEO) counselor with respect to the alleged employment discrimination. Thereafter, Ryan sent written confirmation of the reassignment, and Hazel responded as follows: "Since I believe your written directive ... violates the law, I respectfully refuse to accept the reassignment." Ryan warned Hazel that his letter could "be considered evidence of refusal to obey a direct order" and gave Hazel an opportunity to obey by moving the reporting date back from October 15 to October 18, 1984. Instead of complying with the order, Hazel reported for firearms training on the 18th, had lunch with a friend and went home.

The next day, Ryan asked Hazel if he intended to report for his new assignment, and Hazel did not answer the question. Ryan then handed him a letter putting him in an off-duty status. When Hazel protested this decision, Ryan replied: "[Y]our placement in an off-duty status ... will ... remain in effect until such time as you report for duty to your new assignment." Hazel testified that he never attempted to report to the new assignment after receiving that reply. Finally, on October 22, 1984, Ryan charged Hazel with, and recommended removing him from the Postal Service for, insubordination.

The Regional Chief Inspector accepted the recommendation, and in a letter to Hazel, dated November 8, 1984, stated:

I find that the charge, insubordination, as stated in the notice of October 22, 1984, is fully supported by the evidence. You were directed by Mr. M.W. Ryan, Inspector in Charge, Boston Division, to report effective October 15, 1984 to Team Leader E.A. Jacobs for Job Assignment # 40. On that date, you directed a letter to Mr. Ryan refusing to comply with his directive.

. . . . .

On October 16, 1984, you were again ordered to report to Job Assignment # 40 no later than October 18, 1984. As of October 19, 1984, you had not reported as directed, so you were placed in a non-duty non-pay status.

. . . . .

The position of Postal Inspector requires the utmost individual loyalty, diligence and dedication in the undertaking of assigned duties as needs of the Service dictate. Accordingly, a supported charge of insubordination is an extremely serious and grave charge which will not be condoned or tolerated.

The Chief Inspector removed Hazel from the Postal Service effective November 23, 1984. In response to another appeal by Hazel, the Chief Inspector stated:

Your failure to obey a direct order from the Inspector in Charge is intolerable. This type of conduct is disruptive and undermines the morale of the employees in the office. Additionally, it is not in keeping with the image and professional standards expected of a Postal Inspector. Based on the nature of this incident your placement in a non-duty non-pay status was necessary and appropriate.

In January 1988, after exhausting his administrative and EEO remedies, Hazel filed this action. It came to trial in June 1992, almost eight years after Hazel's removal for insubordination. After three days of a bench trial, during which Hazel presented his case through the testimony of seven witnesses including himself, defendant Postmaster General moved for judgment on partial findings pursuant to Fed.R.Civ.Proc. 52(c). The district judge stated his findings of fact and conclusions of law in open court, granted the motion and entered judgment for defendant. This appeal followed.

Discussion

Hazel's retaliation claim required him to show a violation of either 29 U.S.C. § 623(d), which forbids discrimination against employees opposing age discrimination, or 42 U.S.C. § 2000e-3(a), which forbids retaliation against employees opposing sex discrimination. Under either statute, Hazel's initial burden was to "establish a prima facie case sufficient to permit an inference of retaliatory motive." The burden placed on a plaintiff at this stage "is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). To state a prima facie claim of retaliation under Title VII, the plaintiff must show: " protected participation or opposition under Title VII known by the alleged retaliator; an employment action or actions disadvantaging persons engaged in protected activities; and a causal connection between the first two elements[,] that is[,] a retaliatory motive playing a part in the adverse employment actions." Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 33 (1st Cir.1990) (quoting Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2nd Cir.1980)).

Once the prima facie case is established, the burden of production, not persuasion, shifts to the defendant to articulate a plausible, legitimate, and nondiscriminatory justification for the employment decision. Petitti, 909 F.2d at 31. Once the employer proffers such a justification,

the McDonnell Douglas framework--with its presumptions and burdens--is no longer relevant.... the defendant's "production" (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question.... Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact...., [but] the plaintiff at all times bears the "ultimate burden of persuasion."

St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993) (emphasis in original) (citations omitted).

The issue of retaliatory motive in an employment discrimination case presents "a pure question of fact," and the trial court's determination is reviewed under the clearly erroneous standard. See Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Under the clearly erroneous standard, the court's inference must be affirmed if it is "plausible." Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir.1990).

Judge Keeton heard the testimony of seven witnesses including Hazel and, as the trier of fact, was entitled to draw his own reasonable inferences as to whether Hazel was fired for a retaliatory reason. In his dispositive ruling, the judge stated:

I cannot find that the discharge was motivated by retaliation, or, to put it in language that parallels many of the precedents here, I cannot find that a retaliatory motive was a motivating factor of the discharge, even when assuming that the retaliatory motive was a motivating factor of the downgrading of the rating from very good to good and a motivating factor of the reassignment.

The judge further said that

the plaintiff was not discharged, even by the plaintiff's own proof, simply because of the protected activity but instead was discharged, by the plaintiff's own proof, because of insubordination ..., a refusal to accept orders and comply with them[.] [This] is documented and undisputed under the plaintiff's own evidence.

On review to this court, we cannot say that these findings of fact are clearly erroneous. To put it another way, Hazel's admission that he refused to report for work and the evidence that the Postal Service fired him for that very reason provided a "plausible" basis for the district court's finding that retaliation is not the most likely reason Hazel was fired.

Hazel argues to us, as a...