USCA1 Opinion

May 13, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2302

PATRICIA L. LeFEVRE,

Plaintiff, Appellant,

v.

JESSE BROWN,
SECRETARY OF THE DEPARTMENT OF VETERANS' AFFAIRS,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Gregory P. Piccirilli with whom Sciacca & Piccirilli was on br

_____________________
_____________________
for appellant.
Sheldon Whitehouse for the United States.
__________________

____________________

____________________

Per Curiam.
___________

remedies, Patricia

After

exhausting

LeFevre filed suit in

her

administrative

the district court

seeking damages

the

United

and injunctive relief

States

Department

of

against her employer,

Veterans'

alleged gender discrimination in violation

U.S.C.

2000e-16(c).

denied

male

She

employees,

and

office.

provided to

that

supervisor she was assigned

of Title VII.

claimed that

relocation benefits

when

she

Affairs,

she was

for

42

initially

comparably situated

complained

to a lesser position at

to

her

another

An additional claim of age discrimination, 29 U.S.C.

633a(c), was withdrawn at trial and is no longer at issue.

LeFevre

presented her

and retaliation to a jury

claims of

gender discrimination

in October 1995.

At the

close of

LeFevre's evidence, the district judge in an opinion from the

bench granted

government

claims.

only

on

Fed.

judgment as

the

gender

favorable to

This

and

of the

retaliation

appeal followed.

The

whether the evidence,

taken in the

LeFevre, would permit

a reasonable

jury to decide in her favor,

de novo.
________

law in favor

discrimination

R. Civ. P. 50(a).

issue on appeal is

light most

a matter of

and our review on that issue is

Gibson v. City of Cranston, 37 F.3d 731, 735 (1st

______
_________________

Cir. 1994).

To summarize

the evidence, LeFevre was

Veterans' Administration in

Texas in early

-2-2-

working for the

1990.

In

March

1990, she applied for

a VA office in

Providence, Rhode Island.

form authorizing

expenses

were

an advertised management position with

the position specified

authorized;

mentioned

in the

testified

that during

but

an

paid for

VA's internal

that no

restriction

advertisement itself.

At

interview for

Providence Regional Manager Clyde

she would be

this

The

the

relocation

was

not

trial, LeFevre

job with

the

Waite, Waite told her that

the expense of

moving her

household

goods.

Waite testified he

benefits

told LeFevre that

were available but that

might be able

no relocation

he later told

to get reimbursement for moving

her that he

her household

goods, which in fact he did.

After LeFevre

began working in Providence,

she learned

that two men hired for similar positions had received further

benefits

such

expenses,

as

reimbursement

a per diem allowance,

LeFevre told

Waite

that she

for

lodging

and

mileage

and a home equity purchase.

believed she

was entitled

to

these benefits, but Waite again said that no further benefits

were available.

thereafter

of

complained to her

congressman and

a VA official in Washington ruled that the denial

benefits was

regulations

LeFevre

and

due

to a

that

misinterpretation of

LeFevre

was

entitled

government

to

full

reimbursement.

LeFevre eventually

was paid over $61,000 for

expenses relating to her move.

-3-3-

Shortly after LeFevre told Waite that she was contacting

her

congressman, LeFevre was

transferred from Providence to

Cranston, R.I, to another VA position, apparently one with no

management

motive

responsibility.

was

to

LeFevre contended

retaliate

against

her

complaints.

Waite testified that the

an

appraisal

ongoing

of

because

of

her

transfer stemmed from

LeFevre's

performance that had begun long

that Waite's

position

and

before she raised the

job

issue

of relocation expenses.

Against

court

this background,

that LeFevre

reasonable

jury

did

agree with

not present

to conclude

original

alleged disparity

expenses.

LeFevre's burden

Corp. v.

we

that

in

the

district

evidence permitting

gender

treatment

bias caused

as to

the

relocation

was defined by McDonnell Douglas

_________________

Green, 411 U.S. 792 (1973).

There was no specific

_____

_____

evidence of

discriminatory intent, but to

facie case it was enough

_____

establish a prima
_____

for LeFevre to show that she

was a

woman and that men, apparently similarly situated, were given

more favorable treatment.

But

it was

then

Id. at 802.
___

open to

the

This LeFevre did.

defense to

respond

showing a non-discriminatory reason for the action.

at

802-03.

The

government

evidence the VA's "request

did this

by

by

411 U.S.

introducing into

for personnel action"; this form,

authorizing

the

advertising

of

stated that

"no relocation expenses are

-4-4-

the

position,

explicitly

authorized."

Waite

testified that this document

was prepared before the

VA had

any notion whether the successful applicant would be a man or

woman.

decision

On

its face, the document provides a

to deny

relocation

benefits that

reason for the

was not

gender

based.

We

are now told that because

the convenience

LeFevre was relocated for

of the government, she

could not rightfully

be denied relocation benefits.

the

of

But it does not

government's original reason

authorization) was

based

regulations; under Title VII

wrong

so

long

discrimination.

557, 559

as

the

Pollard
_______

matter that

for denying benefits (lack

on a

misunderstanding of

the employer has a right

decision

was

not

founded" represent bad judgment, not

to be

tainted

v. Rea Magnet Wire Co.,

____________________

(7th Cir.) ("reasons honestly

the

by

824 F.2d

described but poorly

pretext), cert. denied,

____________

484 U.S. 977 (1987).

LeFevre

was

entitled

government's explanation was

to

offer

evidence

pretext, for example,

explanation had been made up after the fact.

object

that

the

that the

LeFevre did not

at trial to the authenticity of the document, but she

does

offer on

neither

reliable.

the

appeal a

host of

document nor

She

points

Waite's

out, for

arguments to

testimony

instance,

authorizing document purportedly denied

-5-5-

suggest that

about it

was

that while

the

relocation benefits,

the

public

advertisement

said

nothing

about

relocation

benefits one way or the other.

How

far

LeFevre

developed

these

arguments

in

the

district court is not entirely clear, but it does not matter.

Taking

them all

reasonable jury

together, they

simply would

to conclude--as LeFevre now

altered

inauthentic.

Thus, the public advertisement turns

government

describing

arguments

or is

form in

which there

relocation

benefits.

are

no

stronger,

in

is

whether

some

other

no separate

The

taken

urges--that the

document was

later

not permit

other

respect

out to be

box for

inference

separately

or

together.

LeFevre's other main contention

is that the document is

of no consequence because

in

denying the

argues

that

Waite did not actually rely

relocation

she was

benefits.

initially

told

In support,

by

Waite

relocation benefits would be provided, and that

on it

LeFevre

that

some
____

subsequently

the reason given for denying full benefits was that she was a

"new hire."

escape

We

agree that an employer

liability

by

exploiting

cannot automatically

nondiscriminatory

justification on which it did not actually rely.

McKennon v.
________

Nashville Banner Pub. Co., 115 S. Ct. 879, 885 (1995).

_________________________

But

any

apparent

inconsistency

between

LeFevre's

version of events and the government's proffered reason--that

the

benefits

were

not

authorized--fades

when

one

looks

-6-6-

carefully at the

testimony.

LeFevre in the initial

were

authorized, but

said he "would

Waite testified

that he

interview that no relocation benefits

that in

check with the

a subsequent

conversation he

central office" to see

could get reimbursement for the

household goods.

testified

superior in

that he

told

contacted a

if he

He further

Washington, Dr.

Blank, who authorized expenses for moving household goods.

Waite's

exception

detailed account

is consistent

personnel document

And

at the

with

that said

district court

of

his effort

his initial

no

to secure

reliance on

expenses were

hearing on

an

the

authorized.

the Rule

50 motion,

LeFevre's counsel conceded that LeFevre initially was told no

relocation

assertion

expenses

at

relocation

were

trial--that

expense for

authorized.

Waite

household

told

LeFevre's

her

she

goods--was

general

would

apparently

get

compressed version of the account given by Waite.

As

for the

"new hire"

benefits, Waite conceded that

justification for

denying full

this was one of

reasons later

given

to

originated

LeFevre.

not with

But

him but

Waite testified

that he

basis

"new

for

the

he

had

hire"

explained

with a

that

this

VA personnel

no personal

justification

-7-7-

officer.

knowledge of

and

was

deferring to the expertise of the personnel officer.

this testimony was uncontradicted.

reason

the

simply

Again,

Title VII offers remedies

only

for discrimination

confusion.

for bureaucratic

error or

LeFevre's retaliation claim might or might not

have more merit

though

and not

than her gender discrimination

the original

denial of

claim.

relocation benefits

Even

was not

shown to be gender based, the statute independently prohibits

an employer

from taking

adverse action against

an employee

because of the fact that the employee is pursuing a Title VII

claim.

42 U.S.C.

whether

the

2000e-3.

record would

In this case,

permit

an

there is doubt

inference that

Waite

engaged in retaliation, there being very little evidence that

Waite

knew

at the

time of

the

claiming gender discrimination.

transfer that

LeFevre was

But

we need not discuss the evidence at length, or rule

upon the

issue, because on

attempt to

develop the retaliation charge

claim for the jury.

developed

14, 16

n.1

appeal LeFevre makes

(1st Cir.

Argencourt v. United States, 78 F.3d

__________
______________

1996).

evidence as to retaliation,

Affirmed.
________

as an independent

We normally do not address arguments not

on appeal.

of plain error.

no serious

Given

the

thinness of

the

there is certainly no indication

-8-8-