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Date: 12-22-2018
Case Style:
Diping Y. Anderson v. Megan J. Brennan
Case Number: 17-2162,17-2170
Judge: Lynch
Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)
Plaintiff's Attorney: Emily Smith-Lee
Defendant's Attorney: Jennifer Utrecht, Chad A. Reidler, Andrew E. Lelling, Jason C. Weida, Marleigh D. Dover and Andrew Rhobach
Description:
In the end in these cross-appeals
after a bench trial, we leave the parties just where they were, as
we see no error by the trial court.
Plaintiff Diping Anderson was a Postal Police Officer
(PPO) employed by the U.S. Postal Service and terminated on
September 9, 2013. Her Title VII lawsuit alleged that her
termination as a PPO was unlawfully discriminatory on the basis of
race and national origin, and independently was in retaliation for
her having filed earlier Equal Employment Opportunity (EEO)
complaints.
After a seven-day bench trial, the district court
concluded that Anderson was not discriminated against but that the
decision to terminate her employment, rather than impose lesser
discipline, was in retaliation for her protected conduct -- the
assertion of her EEO rights. The Postal Service appeals that
ruling here and Anderson appeals from the remedy awarded -- back
pay, but not reinstatement or front pay. We affirm the district
court's rulings.
I.
We take the facts as found by the district court,
consistent with record support. Nevor v. Moneypenny Holdings,
LLC, 842 F.3d 113, 116 (1st Cir. 2016).
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A. Background
Diping Anderson was raised in Shanghai, China. She
immigrated to the United States in 1990 and became a U.S. citizen
in 1993. She began work for the Postal Service in 1995, first as
a letter carrier, then as a window clerk. In 2000, she became a
PPO. In her first sixteen years of employment with the Postal
Service, from 1995 to 2011, Anderson was never disciplined.
In 2011, Anderson took time off for a workplace ankle
injury. She reported back to work on May 1, 2011, with a doctor's
note approving her return. Her supervisor, Captain Gerald
Harrington, refused to allow Anderson to return to work, for a
reason not specified in the record. On May 12, 2011, Anderson
filed a request for EEO pre-complaint counseling, alleging race
discrimination by Captain Harrington. Anderson returned to work
later, at a time not specified in the record.
On May 23, 2011, an EEO dispute resolution specialist
emailed Captain Harrington and then-Sergeant Peter Ford to inform
them of Anderson's EEO filing. The specialist asked to schedule
a redress conference.
On May 21, 2011, Anderson had been assigned to check the
identification of people entering the employee entrance of the
Boston General Mail Facility. Anderson got a call informing her
that her mother had been admitted to a hospital, so she left in
the middle of her shift. She did not get prior approval for this
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departure, but she filled out an emergency leave request form and
left it on the duty sergeant's desk. Then-Sergeant Ford approved
this emergency leave request on May 24, 2011.
Anderson reported to work the next day, May 25, 2011, to
find a broken and unstable stool in place of her normal chair, and
attempted to borrow a different chair from a nearby office. Then-
Sergeant Ford told her, "No. This chair is not authorized."
Anderson brought the matter to Captain Harrington. She
told Harrington that she could not complete her job assignment
without a standard-size chair because of her ankle injury. She
added, "I cannot get on the [stool]. Even if I get on, I have a
hard time getting off." Harrington responded, "If you don't like
it, go home." There is no evidence that he had treated others
similarly. Anderson said that she would leave, that she wanted to
be put back on workers' compensation status, and that she would
come back to work when the broken stool was replaced. Anderson
did not hear back from Captain Harrington.
Anderson did not report to work on May 26, 2011. Then-
Sergeant Ford called to ask why she was absent. Anderson said
that Captain Harrington had told her to go home. Ford told
Anderson that he would consider her to be on sick leave.
Later that day, Ford changed the status of Anderson's
May 21 leave request (from when Anderson's mother was in the
hospital) from approved to "AWOL" (Away Without Leave). A note on
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the leave request form said that Anderson's leave status was
"[c]hanged to AWOL per Capt. H[arrington]." The Postal Service
offered no evidence which explained Captain Harrington's decision
to reverse Ford's prior approval of Anderson's leave.
On June 15, 2011, Anderson attended an EEO redress
conference with Captain Harrington, then-Sergeant Ford, and an EEO
mediator, in response to Anderson's May 12 EEO request for precomplaint
counseling. Anderson testified that Captain Harrington
and then-Sergeant Ford refused to discuss her allegations of
discrimination and told her to file a formal EEO complaint.
On June 24, 2011, then-Sergeant Ford issued Anderson a
seven-day suspension for having left her assigned post on May 21,
25, and 26, 2011 (when no stool was provided), before being
properly relieved or dismissed. This was the first discipline
Anderson received as a Postal Service employee.
Around this same time, a different PPO, Martha Barris,
had several conversations with Captain Harrington in which
Harrington said that he found Anderson's EEO complaints
"distasteful" and that he did not understand why Anderson was
filing them.
Anderson later filed a complaint with the EEOC about the
seven-day suspension, asserting that the suspension was racially
discriminatory. An EEOC Administrative Judge dismissed Anderson's
complaint in September 2012 because Anderson had failed to identify
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any similarly situated comparator outside her protected group who
was treated more favorably. The Postal Service issued a Notice of
Final Action in December 2012 adopting the Administrative Judge's
decision. Anderson did not appeal this decision.
In early 2012, Anderson filed several requests for precomplaint
EEO counseling, alleging incidents of race
discrimination and retaliation that had taken place on several
dates from December 2011 to February 2012. The forms listed
Captain Ford as a responsible official, and then-Sergeant Joseph
Motrucinski was also listed on the last of the request forms.
On March 29, 2012, Anderson filed a formal EEO complaint
alleging race discrimination and retaliation by Captain Ford.1
Anderson voluntarily withdrew the complaint in its entirety in
October 2012. The record does not reveal the reason for this
withdrawal.
Later in 2012, Anderson received two Letters of Warning.
The first stated it came from Anderson's failure to carry her
firearm during the performance of her official duties. Anderson
did not file an EEO complaint in response to that first Letter.
1 Anderson entered into the district court record a
version of that EEO complaint that also listed then-Sergeant
Motrucinski as a responsible official. The Postal Service's
version listed only Ford. Anderson admitted that she added
Motrucinski's name sometime later. The district court found that
Anderson had made this alteration to bolster her retaliation claims
against Motrucinski, and that this detracted from her credibility.
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The second Letter, issued on August 29, 2012, stated it
came from Anderson's failure to properly protect and secure her
weapon. On September 11, 2012, Anderson filed another request for
EEO pre-complaint counseling, asserting that the second Letter of
Warning represented unlawful retaliation for her prior EEO
activity. Anderson named Captain Ford and then-Sergeant
Motrucinski as responsible officials.
About two weeks later, on September 26, 2012, Anderson
received a fourteen-day suspension.2 There were two bases stated
for this discipline. The first went back to July 2012, when then-
Sergeant Motrucinski told Anderson that she should not store her
weapon locker key inside the weapon locker itself, because doing
so was potentially dangerous (an unauthorized person might gain
access to the firearms). Anderson stopped storing her key in this
way. Even so, Sergeant Gregg McGee told then-Sergeant Motrucinski
that, on four separate occasions after, he found Anderson's weapon
locker key stored in her weapon locker. McGee, however, admitted
that he did not confront Anderson on any of those four occasions,
that he did not tell any of her supervisors, and that he took no
pictures of the alleged infractions, as was his normal practice.
2 To be more precise, Anderson received a Letter of Warning
in Lieu of a Fourteen-Day Suspension. This Letter carries the
same weight as a fourteen-day suspension, but does not require the
PPO to take time off work. The district court referred to this
discipline as a "fourteen-day suspension." For the sake of
clarity, we do too.
- 9 -
The district court found McGee's testimony "unlikely."3 Anderson
v. Brennan, No. CV 14-13380-PBS, 2017 WL 1032502, at *6 (D. Mass.
Mar. 16, 2017), on reconsideration in part, 254 F. Supp. 3d 253
(D. Mass. 2017).
Anderson's Letter said the second basis for discipline
involved Anderson's loss of keys. On August 17, 2012, Anderson
had left her keys in the keyhole on the weapon room door at the
end of her shift. Anderson realized that she was missing her keys
when she arrived for her shift the next day. The keys were
recovered and returned to her the day after that.
Anderson was instructed three times to complete an
incident report about the misplaced keys. The first two
instructions came from Sergeant Pare. Anderson did not comply.
Then-Sergeant Motrucinski also told Anderson to complete an
incident report about the misplaced keys. Anderson responded that
an incident report was unnecessary because she had her keys back.
Motrucinski asked her, "Are you refusing my direct order to
complete the incident report?" Anderson replied, "yes, I refuse,"
and left Motrucinski's office.
On November 16, 2012, Anderson attended an EEO redress
conference concerning her September 11, 2012 request for EEO pre-
3 On September 5, 2012, then-Sergeant Motrucinski asked
Anderson if she had ever left her weapon locker key in the weapon
locker since their discussion on July 18, 2012. Anderson replied,
"No, never."
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complaint counseling. In addition to Anderson, PPO Barris, Captain
Ford, then-Sergeant Motrucinski, and an EEO mediator attended. At
the conference, Ford and Motrucinski proposed as a resolution of
the matter that if Anderson resigned from her position as a PPO,
her disciplinary record would be wiped clean. They said she could
then take a position as a post office clerk. Ford and Motrucinski
otherwise refused to discuss the disputes.
Barris, the other PPO at the redress conference, had
further conversations with Captain Ford about Anderson's EEO
activity around the same time. In one conversation, Ford got upset
about Anderson's EEO complaints and yelled, "How dare she do this
to me? I've been nothing but nice to her." Captain Ford also
said, referring to Anderson, "I want her gone. I want her gone
before I retire. I want her gone." And Ford screamed to Barris
that he wanted "both of [them] gone" because he thought Barris was
encouraging Anderson to file the complaints.
In mid-December 2012, Anderson filed another request for
pre-complaint EEO counseling, charging Captain Ford and then-
Sergeant Motrucinski with race discrimination and retaliation for
an incident on October 19, 2012. That incident involved Anderson's
removal from the acting sergeant's list following her fourteenday
suspension. A PPO on the acting sergeant's list may fill in
to supervise a shift (though the PPO acting as sergeant has limited
disciplinary authority).
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On December 28, 2012, Anderson filed a formal complaint
with the EEOC charging Captain Ford and then-Sergeant Motrucinski
with race discrimination and retaliation.
Anderson's termination as a PPO took place about six
months later. On the morning of June 6, 2013, a fire at the
Brockton, Massachusetts mail processing and distribution center
left the building flooded and without power. The doors were left
open to air out smoke from the fire, and the side of the building
had a gaping hole about 100 feet long and taller than a person.
The building was in use otherwise.
At around 2:00 p.m., the inspector service decided to
send PPOs to help the postal inspectors maintain building security.
The PPOs were to provide a visible police presence, to prevent
onlookers from getting hurt, and to prevent unauthorized access.
Anderson was the first PPO to arrive, at about 2:15 p.m.
At some point in the afternoon, Postal Inspector
Patricia Rebello assigned Anderson to guard the hole in the
building's wall. Rebello told Anderson it was necessary to have
an officer present because of the people trying to access the
building. Rebello specifically instructed Anderson to stay out of
her vehicle and to walk around her assigned area.
Inspector Rebello checked on Anderson that afternoon,
between 4:00 p.m. and 5:00 p.m. Rebello found Anderson in the
rear passenger seat of her police cruiser with her head tilted
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back, appearing to be sleeping. Rebello said it took several tries
to rouse Anderson. Rebello told her, "You're not supposed to be
in here sleeping" and that "You're supposed to have officer
presence. You're not to sleep in the vehicle. You're to be out
of the vehicle." Anderson responded, "Oh, okay. I just sat down."
Anderson testified that she was not sleeping. The
district court credited this testimony. See Anderson, 2017 WL
1032502, at *8. The record includes Anderson's cell phone call
log, which shows several calls between 4:00 and 5:00 p.m. The
district court found it "unlikely that [Anderson] fell asleep in
the car between her phone calls." Id. Even so, the district court
found that Anderson had disobeyed Rebello's instructions by
sitting in her cruiser. Id.
Another Postal Inspector observed Anderson, again in her
cruiser, on another cell phone call at around 6:00 p.m. Anderson
did not respond to that Inspector's presence. The district court
found that "[w]hen Anderson was sitting in her cruiser, she was
inattentive and could have appeared to be asleep to a passerby."
Id.
On June 12, 2013, Acting Captain Motrucinski placed
Anderson on pre-investigation emergency non-pay status4 for her
4 The Postal Service's collective bargaining agreement
with its PPOs provides that a PPO "may be immediately placed in an
off-duty status (without pay) by the Employer, but remain on the
rolls where the allegation involves . . . failure to observe safety
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"misconduct" at the Brockton facility. The district court found
this action "unwarranted as there was no emergency."5 Id.
While Anderson was suspended, the Postal Service Office
of Inspector General (OIG) investigated the Brockton incident.
The OIG interviewed Captain Motrucinski on June 25, 2013, and
Anderson and several Postal Inspectors the next week. The OIG
report summarized statements by the interviewees but made no
factual findings about what took place at Brockton.
On September 9, 2013, Captain Motrucinski issued
Anderson a Notice of Removal for failure to perform her duties.
The Notice explained:
Despite having been placed on full and proper
notice that you were to provide a Uniformed
presence at the site, you were observed
sitting Inside your Postal Police vehicle
('cruiser') when you should have been standing
outside the cruiser as a visible presence to
prohibit unauthorized access.
The Notice then conducted a penalty analysis. It emphasized the
"serious nature" of Anderson's offenses and specifically
referenced three prior disciplinary actions: (1) the June 24, 2011
seven-day suspension; (2) the August 29, 2012 Letter of Warning;
and (3) the September 26, 2012 fourteen-day suspension. The Notice
rules and the Security Force regulations . . . . The PPO shall
remain on the rolls (non-pay status) until disposition of the case
has been made."
5 Anderson later grieved the emergency suspension and
received back pay for her period of emergency nonduty status.
- 14 -
concluded that "there [wa]s no penalty short of removal adequate
to deter [Anderson] from such conduct in the future." Inspectorin-
Charge Kevin Niland, who oversaw a seven-state region, reviewed
the OIG's report and concurred in Motrucinski's decision.
At trial, the district court asked Motrucinski, "If
[Anderson] had a less severe set of prior disciplinary warnings
and suspensions, would you have removed her?" Motrucinski
responded, "Possibly. The serious nature of the entire event that
day was of great concern to me."
In November 2013, Anderson filed an EEO complaint
against Captain Motrucinski challenging her removal as racially
discriminatory and retaliatory. The Postal Service appears to
have issued a final agency decision dismissing the complaint
sometime later, but the exact details of the agency decision and
its date are not in the record.
B. Procedural History
Anderson timely filed suit challenging her removal. Her
federal complaint did not seek damages stemming from prior
disciplinary actions taken against her (her June 2011 suspension,
her August 2012 Letter of Warning, and her September 2012
suspension). And she did not dispute that her conduct during the
Brockton fire warranted discipline. Her claim was that the
penalty, termination of employment, was disproportionate, and
resulted from discrimination, and independently, from retaliation.
- 15 -
Anderson sought reinstatement as a PPO, back pay, lost pension and
medical benefits, earned sick leave, emotional distress damages,
and attorney fees.
1. Initial Decision
Because Anderson did not appeal from the finding against
her on her discrimination claim, we focus on each side's arguments
as to the district court's finding of liability on her retaliation
claim. The court determined that "Anderson's misconduct at the
Brockton facility merited discipline for two legitimate,
nondiscriminatory reasons": (1) Anderson's inattentiveness in the
discharge of her duties, and (2) her disregard for the instructions
of her supervisors during an emergent situation. Anderson, 2017
WL 1032502, at *11. The court then found that the penalty of
removal was disproportionate and retaliatory. Id. at *13.
The court initially reasoned, in part, that two alleged
comparators -- PPOs Healey and Pasquale -- who "regularly fell
asleep on duty" were not terminated and that they were allowed to
retire in 2005 and 2007, respectively. Id. at *12. Their
supervisor had imposed no discipline on them, despite the multiple
occasions on which Healey and Pasquale were found sleeping, but
instead simply told them to get coffee and splash water on their
faces. Id.
Healey and Pasquale both worked the "graveyard shift"
and performed the type of access control now done by private
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contractors. At trial, Motrucinski testified that falling asleep
during "post coverage" handled by Healey and Pasquale was "less
dangerous" than being inattentive during an emergent situation
because post coverage involves "pretty much a static environment."
Acknowledging these differences, the district court concluded
that, "in light of the lax treatment of similarly situated white
PPOs, [Anderson's] removal was disproportionate and supports a
claim of retaliation particularly in light of the temporal
proximity to Anderson's EEO complaints." Id. at *13.
The district court also found that the seven-day
suspension (in 2011), which then-Sergeant Ford imposed on
Anderson, "had no legitimate, non-retaliatory justification." Id.
And it found that the fourteen-day suspension (in 2012) was too
severe a punishment for Anderson's infractions. Id. at *16. The
court then determined that if these disciplinary incidents had not
been considered, "Anderson would not have been removed." Id.
These were not the only bases for the district court's
finding of retaliation. Significantly, "the evidence at trial
showed [the district court] that Captain Motrucinski's removal of
Anderson was motivated by retaliation even if her three prior
disciplinary actions were taken as a given." Anderson v. Brennan,
254 F. Supp. 3d 253, 257-58 (D. Mass. 2017).
After the evidence closed, the court permitted both
sides to make simultaneous post-trial findings, but did not allow
- 17 -
any replies. In her post-trial findings, Anderson stated for the
first time that, while her preferred remedy was reinstatement as
a PPO, she would also accept reinstatement as a full-time window
clerk, a job she once held, so long as she was given twenty-one
years' seniority. Failing that, she requested five years' front
pay.
The Postal Service argued in its simultaneous post-trial
findings that Anderson was not entitled to reinstatement and that
reinstatement would be impracticable "because of the obvious
antagonistic relationship demonstrated at trial between her and
her former supervisors." The Postal Service also argued that
Anderson was not entitled to monetary recovery, including front
pay.
After taking these submissions, the district court
concluded that reinstatement as a PPO was inappropriate because
Anderson had an "irreparably antagonistic" relationship with the
leaders of the "small workforce of PPOs" in the Boston area.
Anderson, 2017 WL 1032502, at *17. The court instead awarded
Anderson reinstatement as a window clerk because "[r]einstatement
is the 'preferred remedy under Title VII.'" Id. (quoting Valentín-
Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 105 (1st Cir.
2006)). (This would change on reconsideration.)
The court also awarded Anderson attorney fees; $223,164
for three years of back pay; and $25,000 in compensatory damages.
- 18 -
Id. at *19. The court later adjusted this amount to give Anderson
3.3 years of back pay, granting her a total award of $278,760,
plus attorney fees. Anderson, 254 F. Supp. 3d at 260.
2. Reconsideration
The parties cross-moved for reconsideration on liability
and damages.
a. Liability
The district court rejected the Postal Service's
arguments attacking its liability finding. Id. at 256-59. The
court explained that "the Postal Service makes a strong argument
that a Title VII plaintiff should be barred from attacking an old,
unchallenged retaliatory sanction that underpins a termination in
a progressive discipline system." Id. at 257. But the court
determined that it could consider these incidents as "background
evidence" that Motrucinski had a retaliatory motive. Id. at 258
(quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977)). The court noted that Captain Ford, who had ordered
Anderson's first suspension, had made comments expressing his
distaste for Anderson's EEO filings. Id. The court also noted
that Motrucinski had issued the second (unjustifiably severe)
suspension only two weeks after Anderson named him in an EEO precomplaint
counseling form, which the court concluded evidenced his
own retaliatory animus. Id.
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"By itself," the court explained, "the fact that the
Brockton incident was six months after EEO activity (and Anderson's
subsequent removal was nine months removed) might not permit an
inference of retaliation." Id. at 258-59. But the court found
that its conclusion that Motrucinski had issued discipline it found
to be in retaliation, together with "evidence that removal was a
disproportionate level of discipline," supported an inference of
retaliatory motive. Id. at 259.
The court also rejected the argument that Healey and
Pasquale were not appropriate comparators. Id. Even acknowledging
differences between those PPOs and Anderson, it found that the
stark difference in their treatment supported a finding of
retaliation. Id.
b. Remedy -- Denial of Reinstatement to Window Clerk
with Seniority
In its motion for reconsideration, the Postal Service
argued that the court's award of the newly requested relief of
reinstatement of Anderson to a position as a window clerk with
seniority would conflict with separate Postal Service collective
bargaining agreements, which require such window clerk employees
to begin a new period of seniority upon reinstatement or return to
a position. It attached those collective bargaining agreements
and an affidavit to that effect.
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Anderson submitted an affidavit repeating her testimony
that at a previous EEO redress conference she had received offers
that if she settled this matter and resigned her position as a PPO
the Postal Service would give her a position as a window clerk
with her seniority intact. Her affidavit also stated that a
representative for the PPO union told her in February 2014 that
she could have a position as a Postal Service custodian, with
seniority intact, in settlement of her claims.
After examining both parties' positions, the court
determined "in its equitable discretion, that front pay is a more
appropriate remedy than reinstatement to a window clerk position."
Anderson, 254 F. Supp. 3d at 261. Since the trial record contained
no evidence about how much longer Anderson -- who was then sixtytwo
years old -- would have worked, the court ordered the parties
to supplement the record with evidence about the amount of front
pay. Id. The court also allowed Anderson to file a late petition
for attorney fees. Id. at 262.
c. Remedy -- Denial of Front Pay
Anderson requested $764,360 in front pay, representing
"the equivalent of eight years continued compensation by USPS less
her anticipated income from alternative employment during those
[eight] years." Anderson stated that there is no mandatory
retirement age for PPOs. In an affidavit, she stated that she,
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then nearly sixty-two years old, had intended to work until she
was seventy. Anderson also sought $286,275 in attorney fees.
The Postal Service argued that the district court should
not award front pay because Anderson had the opportunity, and the
obligation, to present evidence regarding front pay at trial. She
had failed to do so. The Postal Service also argued that the
district court could not rely on post-trial supplemental evidence
to award front pay unless it either reopened the record or
scheduled an evidentiary hearing on front pay.6 The Postal Service
did not object to Anderson's petition for attorney fees.
On July 24, 2017, seven months after evidence had closed
at trial (on December 20, 2016), the court denied Anderson's
request for front pay. Anderson v. Brennan, 267 F. Supp. 3d 270,
272 (D. Mass. 2017). The court explained that it would be
inappropriate to reopen the trial record without also providing
"'the standard prophylaxis that generally obtains at trial,'
including 'the right to object to evidence, the right to question
its source, relevance, and reliability, the right to cross-examine
its proponent, and the right to impeach or contradict it.'" Id.
at 273 (quoting Lussier v. Runyon, 50 F.3d 1103, 1113 & n.13 (1st
6 In the alternative, the Postal Service argued that the
existing back-pay-damages award already made Anderson whole, that
Anderson failed to mitigate her damages, that any front-pay award
would be zero, and that any front-pay award would be subject to
offsets.
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Cir. 1995)). The district court, rather than reopening, instead
exercised its discretion "to disregard the post-trial evidence
submitted by both parties on the appropriate amount of front pay"
and to "rely solely on the original bench trial record." Id.
"The trial evidence on the appropriate remedy," the
court noted, was "sparse." Id. "There was no trial evidence on
the length of time for which it would be appropriate to award front
pay," "on how long Anderson intended to remain a PPO," or "on what
age PPOs tend to retire." Id. And though Anderson's post-trial
submission had claimed five years' front pay, the court could
"discern no basis in the trial record for why five years would be
appropriate." Id. at 273 n.1. "Because Anderson had full
opportunity to enter trial evidence" on front pay "but failed to
do so," the court decided to award no front pay, rather than
speculate about its amount. Id. at 274. The district court did,
however, grant Anderson's request for $286,275 in attorney fees.
Id.
d. Denial of Anderson's Motion to Alter or Amend the
Judgment or for New Trial
Anderson moved to alter or amend the judgment or, in the
alternative, for a new trial on remedies. She argued that the
court erred when it reconsidered its prior award of reinstatement
because, in doing so, it had considered the Postal Service's
collective bargaining agreements with the American Postal Workers
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Union (which represents window clerks, not PPOs), which were not
in the trial record. (Anderson had not previously made this
argument.) Anderson also argued that the court erred by failing
to consider her supplementation of the record on the issue of front
pay.
Anderson made no offer of proof, and she did not offer
anything to dispute the Postal Service's reading of the collective
bargaining agreements. And she gave no example in which an
employee had been reinstated with seniority to a window clerk
position. Anderson did refer to a situation in which an employee
had been reinstated with seniority to a janitorial position. She
said janitors were represented by the same union as window clerks,
but offered no proof that those employees were covered by the same
collective bargaining agreements.
The district court rejected Anderson's arguments, and
gave three reasons. Anderson v. Brennan, No. 1:14-cv-13380-PBS,
slip op. at 2-3 (D. Mass. Sept. 26, 2017). First, it found Anderson
had waived the argument that the court could not consider the
collective bargaining agreements by failing to raise that
objection in her opposition to reconsideration of reinstatement.
Id. Second, the court said that, even absent Anderson's waiver,
there was no error in considering the collective bargaining
agreements without reopening the trial record because the
documents "are subject to judicial notice." Id. at 3. Third, the
- 24 -
court noted that awards of front pay are discretionary, and that
it acted within its discretion when it declined to reopen the
evidentiary record because "Anderson had full opportunity to
introduce trial evidence on the appropriate amount . . . but failed
to do so." Id.
II.
A. USPS Appeal from Decision on Liability for Retaliation
To bring a successful retaliation claim under Title VII,
a plaintiff must prove that (1) "she engaged in protected activity
under Title VII," (2) "she suffered an adverse employment action,"
and (3) that "the adverse employment action was causally connected
to the protected activity." Ray v. Ropes & Gray LLP, 799 F.3d 99,
107 (1st Cir. 2015) (quotation marks omitted). In this context,
a causal connection requires "but-for causation." Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). So a Title VII
plaintiff must show that her protected activity was a but-for cause
of the adverse employment action against her.
The district court concluded that Captain Motrucinski
had a retaliatory motive in choosing to terminate Anderson's
employment as an appropriate level of discipline. We review the
factual conclusion "regarding an employer's intent" for clear
error, DeCaire v. Mukasey, 530 F.3d 1, 21 (1st Cir. 2008), and
must affirm "unless, after carefully reading the record and
according due deference to the trial court's superior ability to
- 25 -
judge credibility, we form a strong, unyielding belief that a
mistake has been made," In re Pharm. Indus. Average Wholesale Price
Litig., 582 F.3d 156, 163 (1st Cir. 2009) (quoting Williams v.
Poulos, 11 F.3d 271, 278 (1st Cir. 1993)).
The district court made no such mistake. It concluded
that "sleeping on the job was not taken particularly seriously"
"in the Boston PPO workforce." Anderson, 254 F. Supp. 3d at 258.
It noted that, even beyond Boston, termination of employment of
PPOs was rare: "only five or six PPOs were terminated nationwide
in the past three years and nobody had been removed from the Boston
PPO service at any time within any witness's recollection." Id.
(emphasis added). And it considered the "history of interactions
between Captain Motrucinski and Anderson," as well as the
interactions between "Captain Motrucinski's predecessor, Captain
Ford," and Anderson. Id. All this "strong background evidence of
retaliation" led to the district court's finding "of present
retaliatory motive by Motrucinski" in his treatment of Anderson.
Id. at 259.
The Postal Service's arguments require no analysis
because they miss the mark. The Postal Service focuses on alleged
errors as to the consideration of comparators and of the prior
disciplinary acts. But it ignores the district court's conclusion
that, even apart from these two matters, the other evidence
supported a finding of retaliation anyway.
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Our recitation of the record provides ample support for
the court's finding. We see no need to further discuss the Postal
Service's arguments.
B. Remedial Decisions
The procedural context in which the district court made
its ultimate remedial decisions does warrant more discussion. We
review a district court's decisions about the remedies of front
pay and reinstatement, including whether to take judicial notice
of facts, whether to reopen the record after trial, and whether to
grant a new trial, for abuse of discretion. See Franchina v. City
of Providence, 881 F.3d 32, 56 (1st Cir. 2018) (front pay); Kennedy
v. Town of Billerica, 617 F.3d 520, 527 (1st Cir. 2010) (new
trial); Prescott v. Higgins, 538 F.3d 32, 41 (1st Cir. 2008)
(judicial notice); Valentín-Almeyda, 447 F.3d at 104
(reinstatement); Lussier, 50 F.3d at 1113 (reopen the record). In
each instance, a district court has only abused its discretion if
it "indulged in a serious lapse in judgment." Desrosiers v.
Hartford Life & Accident Ins. Co., 515 F.3d 87, 91 (1st Cir. 2008).
In the end we cannot say that there was any abuse of
discretion. Anderson had a fair and ample opportunity to present
evidence and argument to the trial court during the trial, however
disappointed she is that her remedy did not go beyond her $253,760
(plus prejudgment interest) back-pay award, her $25,000
compensatory-damages award, and her $286,275 attorney-fee award.
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There was nothing unfair about the trial court's application of
the Lussier standard to the post-trial proceedings.
1. Post-Trial Evidence
Anderson first argues that the district court erred in
relying on what she calls post-trial "evidence" to reconsider and
vacate its prior award of reinstatement to a position as a window
clerk with seniority. A district court may rely on facts that are
judicially noticeable even if obtained after trial. See Lussier,
50 F.3d at 1113-14.
This district court was also correct that Anderson's
objection to consideration of the collective bargaining agreement
is waived. A Rule 59(e) motion "is not the place to present
arguments that could, and should, have been raised before the
court's pulling of its judgment trigger." Markel Am. Ins. Co. v.
Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012).7
Even were the argument not waived, the district court
did not abuse its discretion. Generally, a court may consider
"documents the authenticity of which are not disputed by the
parties." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see
7 Anderson raises her own waiver argument. She says the
Postal Service should have raised its collective-bargainingagreement-
based objections to reinstatement before judgment
issued. But the Postal Service had no occasion to present the
collective bargaining agreement earlier because Anderson had not
first requested reinstatement as a window clerk as an alternative
remedy until her post-trial proposed findings and conclusions of
law.
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also Lussier, 50 F.3d at 1114. The collective bargaining agreement
at issue here is just such a document. Cf. Minch v. City of Chi.,
486 F.3d 294, 330 n.3 (7th Cir. 2007). Anderson raises no actual
dispute about the collective bargaining agreement's authenticity.
And as the Postal Service notes, the agreement is publicly
available on the American Postal Workers Union's website.
In explaining why it was denying reconsideration, the
district court did say that it found no collective-bargainingagreement
provision "that provides for rehire or reinstatement of
a window clerk with seniority intact." Anderson, 254 F. Supp. 3d
at 261. Anderson does not, even now, question the accuracy of
that statement by the court. The court determined, "in its
equitable discretion, that front pay [wa]s a more appropriate
remedy than reinstatement to a window clerk position." Id.
2. Reopening the Record
Anderson next argues that the district court's decision
not to reopen the record, combined with its statement about the
collective bargaining agreement, amounted to an abuse of
discretion. We have dealt with the latter part of the argument
alone; it does no better in combination. A district court's
decision to reopen the record "turns on flexible and case-specific
criteria." Davignon v. Hodgson, 524 F.3d 91, 114 (1st Cir. 2008).
These criteria include "whether (1) the evidence sought to be
introduced is especially important and probative; (2) the moving
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party's explanation for failing to introduce the evidence earlier
is bona fide; and (3) reopening will cause no undue prejudice to
the non-moving party." Id. (quoting Rivera–Flores v. Puerto Rico
Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995)).
When the district court considered awarding front pay,
it explained that "there is a lack of evidence in the record about
the appropriate amount of front pay" and ordered the parties to
supplement the record. Anderson, 254 F. Supp. 3d at 261. After
reviewing Anderson's request and the Postal Service's objections,
the district court "elect[ed] to disregard the post-trial evidence
submitted by both parties on the appropriate amount of front pay"
and to "rely solely on the original bench trial record." Anderson,
267 F. Supp. 3d at 273.
We described earlier Anderson's failure to create an
adequate evidentiary record at trial. Because Anderson had "full
opportunity to enter trial evidence on the appropriate amount of
front pay but failed to do so," the Court awarded none. Id. at
274.
In Lussier, we specifically stated the district court
could, "if it so elects, hold the parties to their proof at trial
and determine the front pay award on the existing record." 50
F.3d at 1115. The district court followed this path.
To be clear, there could be no claim that Anderson was
somehow lulled into ignoring her burden as to front pay. The
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district court explicitly raised the issue of front pay with
Anderson's counsel at trial. The court asked, "how do I think
about front pay, if I went that way?" The court warned that "I've
got nothing. I've got one slip of paper that I can see on what
she made at the Postal Police." And the district court told
Anderson's counsel, "Well, I would ask that you address [front pay
offsets] with respect to admissible evidence that I can look at."
Anderson failed to do so.
Outcome: We affirm the district court's judgments. No costs are
awarded.
Plaintiff's Experts:
Defendant's Experts:
Comments: