Blizard v. Frechette, No. 78-1455

• Decision Date: 29 June 1979
• Docket Number: No. 78-1455
• Citation: 601 F.2d 1217
• Parties: 20 Fair Empl.Prac.Cas. 102, 20 Empl. Prac. Dec. P 30,043 Margaret M. BLIZARD, Plaintiff, Appellant, v. Alfred L. FRECHETTE, as He Is Interim Commissioner of the Department of Public Health, Commonwealth of Massachusetts, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1217

601 F.2d 1217

20 Fair Empl.Prac.Cas. 102,

20 Empl. Prac. Dec. P 30,043

Margaret M. BLIZARD, Plaintiff, Appellant, v. Alfred L. FRECHETTE, as He Is Interim Commissioner of the Department of Public Health, Commonwealth of Massachusetts, Defendant, Appellee.

No. 78-1455.

United States Court of Appeals First Circuit.

Argued May 8, 1979.

Decided June 29, 1979.

Jeanne Baker, Cambridge, Mass., with whom Rosenberg, Baker & Fine, Cambridge, Mass., was on brief, for plaintiff, appellant.

Terry Jean Seligmann, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MURRAY, Senior District Judge. ^*

COFFIN, Chief Judge.

This is the second appeal in a sex discrimination case from the trial court's ruling against plaintiff-appellant on the merits. The basic facts of the case appear in Blizard v. Fielding, 572 F.2d 13 (1st Cir. 1978). The core of appellant's complaint is that she was not promoted to the position of Deputy Commissioner of Public Health of the State of Massachusetts because of her sex and that she was retaliated against when she complained of this discrimination to state and federal authorities. Appellant now challenges the trial judge's refusal to recuse himself under 28 U.S.C. § 455(a) from hearing the case on remand. Appellant argues further that a new trial was required by our first opinion in this case and raises for a second time several evidentiary points not decided in the first appeal. We affirm the judgment below.

This case was tried fully to the court. In an unpublished opinion, the trial court ruled for the defendants, finding that any adverse employment decisions by the defendants were not sex-based and were grounded upon legitimate, nonpretextual justifications. The court found further that any adverse changes in plaintiff's work assignments and working conditions were not in retaliation for plaintiff's assertion of sex discrimination claims before state and federal agencies. The court did not, however, apply the analytical framework of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to the evidence in the case, failing to determine whether or not plaintiff had made out a prima facie case of sex discrimination. We remanded for application of the McDonnell Douglas standards.

On remand, plaintiff-appellant moved that the trial judge, the Honorable Andrew A. Caffrey, disqualify himself from further consideration of the case because "his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Appellant also moved for a new trial. In an unpublished opinion, the district court denied both motions and held that although plaintiff-appellant had made out a prima facie case under McDonnell Douglas, defendants had carried their burden of demonstrating legitimate, nonpretextual reasons for their employment decisions. The district court went on to reiterate and more fully explain its original holding that the changes in appellant's work assignments could not fairly be characterized as retaliatory because appellant substantially failed to perform her assigned duties and therefore received assignments of lesser significance, or none at all. Finally, it held that no retaliatory motive prompted the change in appellant's office location and the temporary deprivation of a secretary, both problems being a part of a restructuring necessitated by physical and fiscal restraints on department resources.

The Section 455(a) Recusal Issue

Appellant bifurcates her attack on the district judge's resolution of the recusal issue into an effort to show that he applied the wrong legal standards and a lengthy attempt to demonstrate that application of the correct legal standards would require recusal. We are not convinced by either argument.

The court began its consideration by setting forth our interpretation of the new 28 U.S.C. § 455(a), as propounded in United States v. Cepeda Penes, 577 F.2d 754 (1st Cir. 1978) and United States v. Cowden,545 F.2d 257 (1st Cir. 1976). In essence, section 455(a) allows a judge to disqualify himself if a reasonable man would have factual grounds to doubt the impartiality of the court. Such a standard allows recusal when objective appearances provide a factual basis to doubt impartiality, even though the judge himself may subjectively be confident of his ability to be evenhanded. As the court recognized, Cepeda Penes also stands for the proposition that a judge's conduct during prior judicial involvement in a case (as opposed to extrajudicial knowledge of the parties or evidence) can conceivably provide a factual basis for doubting impartiality. Finally, the new section 455(a) was expressly intended to do away with the so-called "duty to sit" doctrine, which required a judge to hear a case unless a clear demonstration of extrajudicial bias or prejudice was made. Compare In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961) With H.Rep.No.93-1453, 93d Cong., 2d Sess., Reprinted in, (1974) U.S.Code Cong. & Admin.News, pp. 6351, 6355.

Appellant does not quibble with the judge's thorough explanation of the ground rules laid out in section 455(a). Rather, appellant takes issue minutely with his application of those rules, arguing that the language of his opinion demonstrates that he used a different, and erroneous legal standard. First, appellant objects to the trial court's vehement denial of extrajudicial knowledge of appellant. Contrary to the inference drawn by appellant, we do not read this statement as basing the final decision solely on the lack of extrajudicial knowledge of appellant. The trial court's opinion does not state that a finding of bias is precluded because there is no demonstration of extrajudicial knowledge of plaintiff. It does not state that knowledge and attitudes acquired solely in judicial proceedings can never be a basis for disqualification. Rather, appellant herself raised the issue of extrajudicial knowledge in her brief supporting the motion to recuse, and the court was careful to cover that point as one of several raised.

Second, appellant argues that the judge's recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder of fact in a Title VII case, a trial judge must give his candid evaluation of plaintiff's case. If a case is weak to the point of frivolousness, it is appropriate to say so. A reasonable man evaluating the possible partiality of the judge-as-fact-finder would rationally look to the record to see if the judge's candid evaluation is fully supported. We see nothing "subjective" about objectively evaluating whether or not the content and tone of earlier findings have a solid basis in the record.

Appellant's final argument concerning legal standards faults the court's quotation of Union Leader, to the effect that "(t)here is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." In re Union Leader, supra, 292 F.2d at 391. Appellant finds in this quotation a clear invocation of the "duty to sit" doctrine. We agree that this quotation is drawn from a case applying the rigorous standards for disqualification found in 28 U.S.C. § 144. We do not agree, however, with appellant's conclusion that the use of this quotation demonstrates the application of an erroneous legal standard. Appellant reasons that because section 455(a) allows recusal if there are reasonable factual grounds to doubt a judge's impartiality, the burden is on the trial court to show impartiality beyond a reasonable doubt. Appellant goes so far as to imply an analogy between the language of the standard and its corollary in criminal procedure: whereas the "duty to sit" doctrine created a presumption against disqualification, the "reasonable doubt" standard creates a presumption of disqualification.

We do not think that the impartiality of every federal judge must be demonstrated beyond a reasonable doubt in the usual sense of that phrase. A trial judge must hear cases unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is shown by some kind of probative evidence. See, e. g., Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251 (5th Cir. 1978) (trial judge's former law clerk appears as advocate in trial on remand of case originally heard while clerk worked for trial judge; appearance of unfairness requires recusal). In this sense, i. e., that judges hear cases unless there is some reason not to, the "duty to sit" remains. It was in this sense that the court used the quote from Union Leader, after thoroughly reviewing all of appellant's arguments.

We turn next to the specific evidence of partiality cited by appellant. It seems clear that our review is limited to determining whether the trial court's evaluation of that evidence amounted to an abuse of discretion. Mayberry v. Maroney, 558 F.2d 1159, 1162 (3d Cir. 1977); Davis v. Board of Schl. Comm'rs, 517 F.2d 1044, 1052 (5th Cir.), Cert. denied,425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); H.Rep.No.93-1453, Supra, (1974) U.S.Code Cong. & Admin.News, p. 6355. We cannot say there was any such abuse here.

Appellant relies in chief upon three less than complimentary characterizations of appellant and her case included in the district court's first opinion. ¹ Even reading words out of context, as appellant presents them to us, we cannot fault the district court's conclusion that they show no factual support for a reasonable inference of partiality. The record supports the conclusions reached by the district court so fully that we cannot find any inference of partiality in the court's choice to express its...