DeNovellis v. Shalala

• Decision Date: 07 February 1997
• Docket Number: No. 96-2050,96-2050
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1520, 72 Empl. Prac. Dec. P 45,029 Vincent DeNOVELLIS, Plaintiff, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 298

124 F.3d 298

74 Fair Empl.Prac.Cas. (BNA) 1520,

72 Empl. Prac. Dec. P 45,029

Vincent DeNOVELLIS, Plaintiff, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services,

Defendant, Appellee.

No. 96-2050.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 1997.

Decided Sept. 2, 1997.

Jodie Grossman, Boston, MA, with whom ALEF, Inc., was on brief for appellant.

George B. Henderson, II, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff Vincent DeNovellis brought this action alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., against his employer, the Secretary of the United States Department of Health and Human Services (HHS). He alleged that he was discriminated against on the basis of his race, national origin, and age, in his work assignments, in denials of promotions and awards, and in being subjected to a hostile work environment. The district court granted summary judgment to the defendant. We affirm.

I.

A. Facts

Viewed in the light most favorable to the nonmoving party (DeNovellis) and drawing all reasonable inferences in his favor, the following facts are treated as undisputed for purposes of the motion for summary judgment. DeNovellis is a white male of Italian descent. He was sixty-six years old at the time he filed this action in 1994.

From 1979 to 1991 DeNovellis served as Deputy Regional Administrator (DRA) of the Boston Regional Office of Human Development Services (HDS), which was part of HHS. DeNovellis's position was eliminated in an agency reorganization that occurred in the spring of 1991. After some months "in limbo," in the form of temporary assignments to "meaningless" positions, DeNovellis became the program manager of the Aid to Families with Dependent Children (AFDC) program within the recently formed Administration for Children and Families (ACF). His civil service grade remained the same: GS-14.

Until the reorganization, DeNovellis's supervisor, A. Kenton Williams, was the Regional Administrator (RA) of HDS. Williams was a black male of the age of fifty-five when this action was filed. There were racial tensions in the office. Williams often spoke out against the "insidious racism that exists in our society," and, according to DeNovellis, "would try to justify the behavior and reactions of black staff persons, who having been subjected to racial discrimination over the years, reacted differently under certain circumstances." Williams also wrote a letter to the editor of the Boston Globe commenting on the "tremendous pressures" faced by black executives. These comments about the inequities suffered by blacks made DeNovellis feel uncomfortable.

There were also ethnic and race-related comments around the office that Williams condoned. Members of the staff would say things like "Vinnie, why don't you have your people (Mafia) in the North End take care of them." (The North End is a largely Italian neighborhood of Boston.) Both Williams and a black friend of his, St. Clair Phillips, made negative comments about DeNovellis's ethnicity. And staff members made general references to "you whites" in Williams's presence.

Williams and DeNovellis also had work-related conflicts. Part of DeNovellis's job as DRA was to take charge of the regional activities during the RA's absence. Williams was often absent from the office and became concerned that DeNovellis was signing so much correspondence on Williams's behalf that it would highlight the frequency of his absences. For this reason, Williams ordered DeNovellis in 1989 to stop signing letters on his behalf.

In 1989 and 1990, other government administrators, including Williams's supervisor in Washington, Pamela Coughlin, who was white, told Williams that DeNovellis was spreading negative comments about Williams. On more than one occasion, Williams also had to intervene in heated disputes that DeNovellis had with other people in the office. One such incident pertained to the distribution of space, and another concerned whether a minority student (who did not report to DeNovellis) had been absent from work.

In 1990, certain federal employees were given the opportunity to choose early retirement. DeNovellis was eligible to retire but rejected the offer. Several people, including Williams and two of his black friends, urged DeNovellis to take this opportunity and retire.

The heart of DeNovellis's complaint is an assignment to a temporary "detail" to an "unestablished position" in the Office of Fiscal Operations (OFO) in October 1990. Williams claims he was instructed to order this reassignment by Coughlin, his (white) supervisor. Nevertheless, Williams now admits that the detail was "a sham," and was concocted in part because Williams did not want DeNovellis to be his deputy. On October 9, 1990, Williams removed DeNovellis from the order of succession to act as RA.

DeNovellis suffered no diminution in grade, pay, or benefits during the detail. He worked under the supervision of Williams's friend, St. Clair Phillips, who was black. Officially, DeNovellis was responsible for financial activities, for which he had no training or capability. For the first month and a half, he "performed the same (DRA) duties under a new supervisor." In mid-November, the new supervisor, Phillips, asked Williams to end the detail because DeNovellis did not have the background to perform the OFO work and he was refusing to perform his old DRA duties. Williams refused. The detail was due to expire in February 1991 but, upon Williams's request, was extended through March 31, 1991.

On March 8, 1991, DeNovellis filed an EEO complaint, alleging age, race, and national origin discrimination in assignment of duties, awards, and reassignment. On April 11, three days after the EEO officer interviewed Williams, Williams filed forms requesting that DeNovellis's position be switched with that of Paul Kelley, a black male who was a friend of Williams's and who was a supervisory accountant in OFO. According to DeNovellis, Williams's purpose in making this request was to protect the grades of Phillips and Kelley, both black and both friends of his, in an impending classification review. However, the classification review and the proposed "job swap" were never carried out, overtaken by the agency's restructuring in the spring of 1991.

Around the same time that DeNovellis's initial detail expired at the end of March 1991, HHS underwent an internal restructuring. The former HDS and another sub-agency of HHS, the Family Support Administration, were merged into a new entity, the Administration for Children and Families (ACF). The restructuring took several months to effectuate. During the transition, DeNovellis maintained his title of DRA of HDS and carried out some tasks of the Deputy position, but he received no official assignments; as before, people came to him for information.

In April or May 1991, Hugh Galligan, a white male, was appointed Acting Regional Administrator of the new ACF; he appointed Williams as his Deputy. By May, Williams was no longer in charge of the Boston office. The appointments of Galligan and Williams were finalized on August 23, 1991. Two days later, DeNovellis's position was "realigned"; his official title remained DRA of HDS (even though HDS was phasing out) but this was now within the new ACF. The result was that Williams was DRA of ACF, and DeNovellis retained the job title "DRA" but remained unassigned in the new agency. His grade remained unchanged throughout this period.

In December 1991 Williams left Boston for a position in Washington, D.C. Galligan then transferred Phillips, who had been the head of OFO of the new agency, to the DRA position at the new agency. Because Phillips was a GS-15 and the new DRA opening was a GS-15, Galligan could transfer Phillips laterally into the position without a competitive search. Since DeNovellis was a GS-14, he could not have been promoted to Williams's former position unless a job vacancy announcement had been made and a competitive search performed. There is no evidence that Galligan was precluded from instituting such a search and considering DeNovellis for the position.

In May 1992 DeNovellis was reassigned from DRA of the Office of Family Security (OFS) in the new agency, to a supervisory position as program manager in the same OFS. This was not part of the management team of the new agency. DeNovellis was the last person appointed to a permanent position in the new agency. Galligan has since detailed him twice to the OFO as an assistant goal leader for ongoing restructuring. (Thus, in some respects, DeNovellis claims his job assignments have been inappropriate because they were beneath his DRA status and in other respects inappropriate because the positions required accounting or financial qualifications which he did not possess.)

According to DeNovellis, at least part of the reason for the delay in his reassignment in the new agency was a "position paper" he wrote in early 1992. The paper pointed out the "convoluted interactions that were going on," and it accidently was mailed to a lot of people in the region, creating a furor. Galligan was asked to find out who was responsible for this position paper. During the investigation, DeNovellis's computer was confiscated.

B. District Court Proceedings

The district court granted summary judgment to the Secretary as to all claims. It dealt separately with each of the four types of adverse action alleged by DeNovellis. The court relied on Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to reject the Title VII claim for deprivation of duties that...