Germane v. Heckler, 85-2558
| Decision Date | 06 January 1987 |
| Docket Number | No. 85-2558,85-2558 |
| Citation | 804 F.2d 366 |
| Parties | 42 Fair Empl.Prac.Cas. 1053, 41 Empl. Prac. Dec. P 36,573 Carmen GERMANE, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, United States Department of Health and Human Services, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Franklyn M. Gimbel, Gimbel Gimbel & Reilly, Milwaukee, Wis., for plaintiff-appellant.
Patricia J. Gorence, Asst. U.S. Atty., Milwaukee, Wis., for defendants-appellees.
Before BAUER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.
Carmen Germane is a former employee of the Milwaukee Office of the United States Department of Human Services' Office of Hearings and Appeals who claims she was discharged from that office in violation of Title VII, the Privacy Act, and the first and fifth amendments to the United States Constitution. She appeals the entry of judgment below denying her all relief and alleges several errors by the trial court. She claims the magistrate erred in finding that she was not fired on the basis of sex but rather for good cause, in denying her leave to amend her complaint, in dismissing Germane's Privacy Act claim for her failure to exhaust administrative remedies, and in refusing to consider bases for recovery under Title VII that were not included in her EEOC action. She further contends that the district court erred in referring Germane's case to a magistrate without her consent. We find no merit in Germane's arguments and affirm the judgment below.
Carmen Germane was hired on December 3, 1979 as an attorney advisor in the Milwaukee Office of the United States Department of Human Services' Office of Hearings and Appeals ("OHA") to assist administrative law judges in drafting decisions. On July 2, 1980, OHA discharged Germane. OHA informed Germane that she was fired for five reasons: poor work product, failure to return timely drafts of decisions, poor performance, failure to draft decisions as requested, and poor attitude.
On September 25, 1981, Germane filed suit against OHA and three OHA employees. Her original complaint claimed violations of Title VII, 42 U.S.C. Sec. 2000e et seq., the Fifth Amendment; and the Privacy Act, 5 U.S.C. Sec. 552a(g). Defendants moved to dismiss all claims. In response, Germane asked leave to amend her complaint to include a First Amendment claim. The magistrate dismissed the individual defendants from the case, dismissed all claims against OHA except the Title VII claim, and denied Germane's motion to amend. Germane appealed this action, but the district court dismissed the appeal. Germane then asked and was granted leave to amend her complaint to cure technical deficiencies in her four Privacy Act claims.
Trial on the liability issues was held from June 11, 1984 to June 13, 1984. At the close of Germane's case, the magistrate granted OHA's motion to dismiss two of Germane's Privacy Act claims for lack of evidence but denied dismissal of the other two Privacy Act claims and the Title VII claim.
At the conclusion of trial, the magistrate entered judgment dismissing Germane's complaint. The magistrate dismissed Germane's Title VII claim because he found that Germane had not been discharged on the basis of her sex. He dismissed for lack of evidence Germane's Privacy Act claim based on OHA's premature disclosure of her termination to office personnel. Finally, he dismissed Germane's Privacy Act claim based on OHA's failure to maintain a proper personnel file because Germane had failed to exhaust her administrative remedies.
Germane appeals. She challenges as error the entry of judgment against her on her Privacy Act and Title VII claims, the denial of her first motion for leave to amend her complaint, and the referral of the case to a magistrate.
Germane challenges the magistrate's finding that she was not fired on the basis of sex but rather for valid cause. Her attack on this finding is two-pronged. First, she claims the magistrate erred in looking only to the personal motives of the OHA official who actually fired Germane rather than also looking to the motives of those who gave information about Germane to that official that may have influenced his decision. Second, Germane claims that the magistrate was simply incorrect in his determination that the reasons given for Germane's discharge were not pretextual. We disagree with both arguments.
We disagree with Germane's first ground of attack because we disagree with Germane's assertion that the magistrate ignored the discriminatory motives of Germane's fellow employees. The magistrate correctly noted that the ultimate inquiry in a Title VII disparate treatment claim is whether discriminatory intent was a "but for" cause of the adverse action. Germane v. Heckler, No. 81-C-1274, mem. op. at 25-26 (E.D.Wis. July 12, 1985) (citing McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924, 928 (7th Cir.1984) ). As Germane accurately points out, in making this ultimate determination the magistrate focused in part on the intent of the OHA official who fired Germane.
The decision to fire plaintiff was made by [the head administrative law judge], and it is his motives that must determine defendant's liability under Title VII.
Germane, mem. op. at 30 (emphasis in original). Germane fails to note, however, that the magistrate also looked to the possible discriminatory motives of Germane's fellow employees and the influence their complaints may have had on the official's decision.
[O]f all the complainers, [one employee's] motives, viewed in isolation, were discriminatory. Her complaints even if [the official] knew of and adopted or acquiesced to her motives, were not a "but for" cause of plaintiff's termination when considered along with plaintiff's production problems and the other complaints he received.
Germane, mem. op. at 31 (emphasis added). Thus, Germane's argument that the magistrate ignored the motives of Germane's fellow employees is simply a misreading of the magistrate's decision.
We also reject Germane's assertion that the magistrate's determination that she was fired for valid cause rather than on the basis of sex is incorrect. The magistrate correctly applied the analysis for disparate treatment claims established in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The magistrate determined that Germane made out a prima facie case of discrimination by presenting evidence that she was a qualified female who had received unequal treatment as compared to her male counterparts. Germane, mem. op. at 23-24. The magistrate then correctly noted that the burden shifted to OHA to demonstrate legitimate nondiscriminatory reasons for discharging Germane. Id. at 24. This OHA did by proffering the reasons set forth in Germane's letter of termination and introducing evidence supporting those reasons. The magistrate then turned to the final determination of whether Germane could show that OHA's reasons were merely pretextual and that she was in fact fired on the basis of her sex. Id. at 24-32. The magistrate determined that although some of OHA's proffered reasons might have been pretextual (poor work product and failure timely to return drafts), others were not (poor performance and failure to draft decisions as requested). The magistrate therefore determined that Germane had not carried her ultimate burden of proving discriminatory intent. Id. at 32. This conclusion is sensible, supported by the evidence, consistent with the magistrate's underlying findings, and the result of the application of the correct analytical framework. We see no basis to overturn it as clearly erroneous. See Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 1742 n. 21, 90 L.Ed.2d 69 (1986) ().
Germane next contends the magistrate erred in denying her motion for leave to amend her complaint to add a First Amendment claim. We disagree.
In response to OHA's motion to dismiss her original complaint, Germane moved to add a First Amendment claim. She wished to allege that she was fired for engaging in a romantic relationship with an administrative law judge, and that this discharge constitutes not only a Title VII violation but also a violation of her First Amendment associational rights. The magistrate denied Germane's motion on the basis that Title VII provides the exclusive remedy for the harm alleged by Germane. Germane v. United States, No. 81-C-1274, mem. op. at 4-7 (E.D.Wis. Oct. 7, 1982).
We agree with the magistrate that Germane cannot state a separate First Amendment claim. Germane can only state a First Amendment claim if Title VII or other statutes or regulations do not embody a remedy intended by Congress to provide Germane exclusive relief for the harm alleged and if there are no "special factors counselling hesitation in the absence of affirmative action by Congress." Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980). Regardless of whether Title VII provides the exclusive remedy for a discharge motivated by disapproval of a romantic relationship between employees, the Supreme Court has already determined that the intricate regulatory framework that Congress has designed to protect the First Amendment rights of its civil service employees is a "special factor counselling hesitation." Bush v. Lucas, 462 U.S. 367, 380-90, 103 S.Ct. 2404, 2412-18, 76 L.Ed.2d 648 (1983). Thus, as a federal civil service employee, Germane cannot state a First Amendment claim, and her motion to amend her complaint to do so was properly denied.
Germane does not appeal the dismissal for lack of evidence of...
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