Randlett v. Shalala ( 1997 )


Menu:
  • 
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIRST CIRCUIT
                                            
    
    No. 96-1950
    
                          JEAN M. RANDLETT,
    
                        Plaintiff, Appellant,
    
                                 v.
    
                    DONNA E. SHALALA, SECRETARY,
              DEPARTMENT OF HEALTH AND HUMAN SERVICES,
    
                        Defendant, Appellee.
    
                                            
    
            APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                  FOR THE DISTRICT OF MASSACHUSETTS
    
           [Hon. Douglas P. Woodlock, U.S. District Judge]
    
                                            
    
                               Before
    
                        Boudin, Circuit Judge,
    
                   Aldrich, Senior Circuit Judge,
    
                      and Lynch, Circuit Judge.
    
                                            
    
    Robert Le Roux Hernandez for appellant.
    Lori 
                    J. 
                       Holik, 
                             Assistant 
                                      United States Attorney, with whom Donald K.
    Stern, United States Attorney, was on brief for the United States.
    
                                            
    
                            July 10, 1997
                                            
    
    
         BOUDIN, Circuit Judge.  This appeal brings to the  court
    
    the 
                   most 
                        recent chapter in a 20-year quarrel between a federal
    
    department 
                          and 
                             its 
                                 former employee, Jean Randlett.  It presents
    
    an 
                  important 
                            legal 
                                 issue 
                                       concerning the reach of the protection
    
    afforded by  Title VII of  the Civil Rights  Act of 1964,  42
    
    U.S.C. S 2000e  et seq.   We hold  that Title  VII can  offer
    
    protection  against a  retaliatory  refusal  to  transfer  an
    
    employee,  but  that  no   evidence  existed  here  to   show
    
    retaliation.
    
                                 I.
    
         Because Randlett's claims  were resolved against her  on
    
    summary  judgment, we  state  the  facts in  the  light  most
    
    favorable 
                         to 
                            her. 
                                 
                                 Sargen
                                       t v. Tenaska, Inc., 
    108 F.3d 5
    , 6 (1st
    
    Cir. 1997).  In 1975, Randlett worked in Denver in the Office
    
    of Civil Rights  of the Department  of Health, Education  and
    
    Welfare 
                       as 
                          an 
                            equal 
                                  opportunity specialist with a civil service
    
    grade  of GS-12.   She  applied for  a promotion  to a  GS-13
    
    position 
                        in 
                           Denver 
                                 but 
                                     was denied promotion in favor of another
    
    candidate.   A few  months  later, in  August 1975,  she  was
    
    terminated.  
    
         Randlett  filed a  complaint with  the Equal  Employment
    
    Opportunity 
                           Commission, 
                                      alleging discrimination based on gender
    
    and national origin  (she is white and of European  descent).
    
    Six 
                   years 
                         later, the EEOC ruled in her favor, finding that the
    
    record  showed  "[n]o   other  credible   reason  for   [her]
    
                                 -2-
                                             -2-
    
    
    nonselection  . . .  other than the  fact that the  selecting
    
    official wanted to insure that the Hispanic male was  awarded
    
    the GS-13 position."  It found that Randlett's discharge  was
    
    similarly motivated by discriminatory animus.  In particular,
    
    the EEOC  found that the  official who considered  Randlett's
    
    promotion 
                         had applied pressure on the selecting panel to alter
    
    its 
                   rankings, which favored Randlett, so that the job could go
    
    instead to a friend of the selecting official.
    
         The  EEOC's 1981  order  directed  the  Department,  now
    
    metamorphosed 
                             into 
                                 Health and Human Services ("HHS"), to cancel
    
    Randlett's 1975  discharge  and  to  "immediately  reinstate"
    
    Randlett  in  the  Denver  office  as  an  equal  opportunity
    
    specialist, 
                           grade GS-13.  The order also awarded Randlett back
    
    pay  and  other  entitlements   for  the  period  since   her
    
    termination, 
                            and 
                               it 
                                  required HHS to report within 30 days as to
    
    the 
                   steps 
                         it 
                            planned to take to implement the required action.
    
         In late  June  1981, Randlett  began  what would  be  an
    
    extensive exchange  of  telephone calls  and  correspondence,
    
    primarily with  Thomas Jefferson,  an HHS  official based  in
    
    Washington, 
                           D.C., who was apparently charged with coordinating
    
    Randlett's  reinstatement.   She  also talked  with  Patricia
    
    Taphorn,  a personnel  official in  the Denver  office.   The
    
    upshot, 
                       according to Randlett, was an agreement that she would
    
    return 
                      to 
                         the payroll of the HHS Denver office as of August 9,
    
                                 -3-
                                             -3-
    
    
    1981, but by using four weeks of accumulated leave, would not
    
    actually report for work until early September 1981.
    
         According 
                              to 
                                both 
                                     Randlett and Taphorn, Jefferson was very
    
    difficult to reach over the course of the summer and did  not
    
    act quickly enough to  confirm this understanding, nor  would
    
    anyone else in the Washington office take responsibility  for
    
    doing 
                     so. 
                          
                          We 
                            pass 
                                 over 
                                      the details, but there is no indication
    
    that 
                    anything other than bureaucratic sloth was the cause.  In
    
    any 
                   event, 
                          in August 1981, Randlett signed a contract with her
    
    then-current employer, the Barnstable, Massachusetts,  school
    
    system, 
                       extending her employment there for an additional year.
    
         Not  long afterwards,  Randlett received  a letter  from
    
    Jefferson, confirming that she  was reinstated in the  Denver
    
    office  as  of  September  1981;  he  also  referred  to  the
    
    possibility 
                           of a transfer to another regional office, but said
    
    that  this was  not certain.   Further  telephone calls  were
    
    exchanged, 
                          and 
                             the 
                                 matter was still unresolved in October 1981,
    
    when Randlett's father became  seriously ill.  Randlett  then
    
    told 
                    Jefferson that she would need to stay in Massachusetts to
    
    care for her father.
    
         After 
                          further 
                                 confusion, 
                                            Randlett in February 1982 secured
    
    from 
                    another 
                           HHS 
                               official in Washington a temporary "detail" to
    
    a Boston HHS office, effective March 1, 1982, for a period of
    
    not  more than  120 days.   The  official--Betty Lou  Dotson,
    
    director of the Office for Civil Rights--wrote Randlett  that
    
                                 -4-
                                             -4-
    
    
    the 
                   detail 
                          was 
                             "granted 
                                      to accommodate your personal situation"
    
    and 
                   concluded 
                             by 
                               saying 
                                      that "I trust this detail will give you
    
    the opportunity to attend to your personal responsibilities."
    
         Randlett resigned from  her schoolteaching position  and
    
    began 
                     working 
                             in 
                               the 
                                   Boston HHS office in March 1982.  By then,
    
    her 
                   father 
                          had 
                             died, 
                                   but 
                                       her aging mother's health was failing.
    
    Randlett also claims that,  almost immediately, she began  to
    
    experience problems  in  the  Boston HHS  office  because  of
    
    inadequate training on work assignments, that she received  a
    
    "low satisfactory" ranking in an evaluation, and that she was
    
    listed 
                      at 
                         a 
                          GS-12 
                                level 
                                      in Boston (even though she continued to
    
    receive a GS-13 salary).  
    
         According to Randlett, Jefferson called her in May  1982
    
    and asked her when she planned to return to Denver.  Randlett
    
    replied 
                       that 
                            she thought her position in Boston was permanent,
    
    but in  June 1982, she  sent a letter  to HHS in  Washington,
    
    requesting 
                          a 
                            permanent assignment to the Boston office, saying
    
    "this 
                     is 
                        an 
                           unusual request, but probably no more unusual than
    
    the six and a half years of injustices" that she had endured.
    
    It appears that Randlett also had a telephone conversation on
    
    the subject with Bart Crivella, Jefferson's supervisor.
    
         In 
                       early 
                             July 
                                 1982, 
                                       the 
                                           request was answered in writing by
    
    Nathan  Dick, the  deputy director  of the  Office for  Civil
    
    Rights.  Dick's  letter denied the transfer request but  said
    
    that HHS was willing to extend the temporary detail in Boston
    
                                 -5-
                                             -5-
    
    
    until 
                     September 
                              30, 
                                  1982, with Randlett returning on October 1,
    
    1982, to her "permanent duty station in Denver."  The  letter
    
    explained:
    
         [I]t 
                         is 
                            not 
                                possible for the Office for Civil Rights
         to 
                       offer 
                             you 
                                 a permanent assignment in Boston.  Your
         requested 
                              assignment and subsequent detail to Boston
         was 
                        a 
                          temporary action taken only to accommodate you
         during 
                           the 
                               adjustment period after the death of your
         father. . . .   However, the recent RIF actions  in
         the 
                        regions 
                                and the continuing ceiling and budgetary
         constraints   have   eliminated   practically   any
         potential 
                              options for this office [in Washington] to
         assign you  to  the Boston  office on  a  permanent
         basis.
    
         In September, Randlett received another letter from Dick
    
    requesting 
                          her 
                              to 
                                report 
                                       for work in Denver on October 1, 1982.
    
    Randlett 
                        then 
                             filed 
                                  a 
                                    complaint with the EEO officer in Boston,
    
    alleging 
                        that 
                            Washington 
                                       officials were retaliating against her
    
    "for having filed a previous complaint in Denver . . .  which
    
    was resolved in my favor."  Randlett's new complaint named as
    
    the 
                   persons 
                           who had retaliated against her Jefferson, Dick and
    
    Crivella.
    
         Instead 
                            of 
                               reporting 
                                        to 
                                           work in Denver on October 1, 1982,
    
    Randlett arranged  to use accrued  leave credits  to stay  in
    
    Boston for  the remainder  of the  year.   In November  1982,
    
    Randlett's prospective  supervisor in  Denver, Alex  Aguilar,
    
    confirmed 
                         the request for leave from October 1 to December 31,
    
    1982; but the letter also said that Aguilar expected Randlett
    
    to report  for work  on January 3,  1983, and  that he  would
    
                                 -6-
                                             -6-
    
    
    consider 
                        any 
                            request for further leave to be "unreasonable and
    
    not in the best interests of our organization."   
    
         Randlett then asked Aguilar for leave-without-pay status
    
    after December 1982.  Aguilar refused, saying that Randlett's
    
    "prolonged" absence was detrimental to his office.   Randlett
    
    then 
                    asked 
                          for 
                             sick 
                                  leave.  Aguilar wrote that the agency might
    
    be 
                  able 
                       to 
                         make 
                              health-related accommodations for her in Denver
    
    so long  as she documented her  ailments; but some two  weeks
    
    later Aguilar told Randlett that the documents she  submitted
    
    were not adequate.  In March 1983, Randlett resigned,  saying
    
    that it  was done  involuntarily to  prevent any  "additional
    
    harassment" from Aguilar  or "any  other further  retaliatory
    
    acts."
    
         Randlett's 
                               September 1982 complaint--directed against the
    
    three named Washington officials--was originally rejected  by
    
    HHS on the ground that  it was untimely, but this ruling  was
    
    reversed by  the EEOC in 1985.   Incredibly, the ensuing  HHS
    
    internal investigation  lasted over seven  years.  In  August
    
    1992, an HHS administrative law judge denied Randlett's claim
    
    of retaliation.   His  denial was  sustained by  the EEOC  in
    
    November 1993.
    
         In 
                       December 
                                1993, Randlett filed her present complaint in
    
    the federal district court under Title VII.  The core of  the
    
    complaint 
                         was 
                            that 
                                 "[a]lthough HHS had full power and authority
    
    to 
                  assign 
                         plaintiff a permanent position in the Boston office,
    
                                 -7-
                                             -7-
    
    
    it unreasonably refused to do so in order ultimately to force
    
    plaintiff 
                         to 
                            resign." 
                                     
                                     The complaint attributed this refusal to
    
    retaliation for Randlett's successful 1975 complaint  against
    
    the department, saying that hardship transfers were routinely
    
    granted to individuals with  hardship requests similar to  or
    
    less serious than Randlett's.
    
         Randlett 
                             also charged that she had been given an improper
    
    "low satisfactory" performance rating and inadequate training
    
    in Boston.  She asked for "[r]einstatement to her position in
    
    Boston" with back pay and benefits and reimbursement for some
    
    health insurance premiums and out-of-pocket medical expenses.
    
    She 
                   also 
                       sought 
                              compensatory and punitive damages of $1 million
    
    each.
    
         After a  period  of  discovery, HHS  moved  for  summary
    
    judgment. 
                          
                          It argued that the denial of permanent transfer was
    
    not 
                   an 
                      adverse employment action under Title VII, and that the
    
    agency 
                      had 
                          made 
                              an 
                                 effort to accommodate Randlett's requests by
    
    granting  a temporary detail  to Boston but  that it was  not
    
    required  to go further.   HHS also  supplied the court  with
    
    correspondenc
                            e and a transcript of Randlett's testimony in the
    
    EEOC's recent investigation.
    
         Randlett 
                             responded 
                                      with 
                                           her own version of events and also
    
    submitted 
                         affidavits from HHS employees attesting that HHS did
    
    approve 
                       hardship 
                               transfers with some regularity, and suggesting
    
    that she could  have been accommodated in the Boston  office.
    
                                 -8-
                                             -8-
    
    
    The most dramatic affidavit was submitted by an EEOC employee
    
    who 
                   had 
                       previously worked in the Denver HHS office.  According
    
    to 
                  the 
                      affiant, in the spring of 1982 he had been talking with
    
    Aguilar about a GS-13 position in the Denver office and asked
    
    if it was going to be filled permanently and if so, by  whom.
    
    The affidavit continued:
    
         Alex  Aguilar told  me "That  position [cannot]  be
         filled 
                           permanently until the matter of Jean Randlett
         is resolved, but I  am going to make sure that  she
         does not come to Denver.  We are going to put a lot
         of  pressure on  her  so  she will  not  return  to
         Denver."
    
         On June  5, 1996, the  district judge  issued a  29-page
    
    memorandum 
                          and 
                             order 
                                   granting HHS' motion for summary judgment.
    
    The decision dealt in different ways with Randlett's  various
    
    claims, as will appear from our own discussion.  The decision
    
    went some distance in the direction that HHS had urged in its
    
    original 
                        motion, holding that "rejection of Randlett's request
    
    to 
                  continue 
                           to stay in Boston for personal reasons is not a[n]
    
    adverse action cognizable by federal law."
    
                                 II.
    
         A grant of summary judgment is subject to de novo review
    
    on appeal, and this includes any claim that the evidence made
    
    out a material issue of fact that precludes summary judgment.
    
    Sargent
                      , 
                        108 
                            F.3d at 6.  Before addressing the central issue--
    
    the denial of Randlett's request for a transfer to Boston--we
    
    consider 
                        briefly, and then put to one side, certain rulings by
    
    the district court that require no extended treatment.
    
                                 -9-
                                             -9-
    
    
         In the district court, Randlett urged that she had  been
    
    "promised"  a permanent  transfer  to  Boston  by  Jefferson.
    
    Assuming arguendo  that such a  "promise" might receive  some
    
    special protection, the district court carefully reviewed the
    
    pertinent proffers  of  evidence,  especially  the  documents
    
    exchanged  between Randlett  and the  Washington office,  and
    
    concluded  that no  reasonable jury  could find  that such  a
    
    promise had been made.  Without repeating the details,  which
    
    are set forth in the district court's decision, we agree with
    
    this ruling.
    
         The district  court also made  short work of  Randlett's
    
    claim that  she had received  inadequate training in  Boston,
    
    saying 
                      that 
                           even if this were true, there was no evidence that
    
    it was based upon a  motive to retaliate against her for  her
    
    earlier complaint.  "At most," the district judge ruled, "the
    
    evidence shows that the  Boston assignment was an  awkwardly-
    
    designed and  temporary  expedient  to  accommodate  Randlett
    
    pending 
                       her 
                           return 
                                 to 
                                    the duty station [Denver] directed by the
    
    1981 EEOC decision."  This ruling also is well supported.
    
         The 
                        district 
                                 court 
                                      also 
                                           rejected Randlett's claim that she
    
    was improperly listed  as a GS-12 employee in Boston,  saying
    
    that this was not an adverse employment action since Randlett
    
    continued 
                         to 
                            be 
                              paid 
                                   at 
                                      the GS-13 level.  We affirm this ruling
    
    on a narrower ground:   no evidence exists that this  alleged
    
    Boston-office "error" was motivated by a desire to  retaliate
    
                                -10-
                                            -10-
    
    
    against Randlett  for filing a  complaint seven years  before
    
    against 
                       a 
                         different HHS office.  Whether in some other case an
    
    inaccurate listing could be an adverse action under Title VII
    
    need not be pursued here.  
    
         The 
                        central 
                                issue is HHS' refusal to transfer Randlett to
    
    the 
                   Boston 
                          office.  The district court said that this was "not
    
    a[n] adverse action  cognizable by federal law," but it  also
    
    said that not  even a "scintilla  of evidence" supported  the
    
    claim 
                     "that 
                           the agency retaliated against Randlett by refusing
    
    to 
                  provide 
                          a 
                            permanent transfer to Boston for hardship reasons
    
    or to extend her temporary detail."  These are two  different
    
    reasons, one relating to law and the other to fact.
    
         The 
                        more 
                             difficult 
                                      of 
                                         the two is the legal question:  what
    
    types of employer actions adverse to the employee can,  where
    
    improperly 
                          motivated, give rise to a Title VII complaint.  The
    
    district  judge, arguably  supported  by  references  in  the
    
    decisions of a few other courts, accepted HHS' argument  that
    
    the refusal  of a lateral transfer  to another office of  the
    
    agency does  not rise to the  level of an adverse  employment
    
    action compensable  under  Title  VII--even if  done  for  an
    
    improper motive.
    
         The  statute  itself  says  that  an  employer  may  not
    
    "discriminate" against an employee or applicant "because [the
    
    employee 
                        or 
                           applicant] has made a charge . . . or participated
    
    in 
                  any 
                      manner" in a Title VII investigation or proceeding.  42
    
                                -11-
                                            -11-
    
    
    U.S.C. 
                      S 
                        2000e-3(a). 
                                    
                                    Elsewhere, the statute lists actions that
    
    can 
                   constitute discrimination, specifying a refusal to hire, a
    
    discharge, or any  discriminatory treatment  with respect  to
    
    "compensation, 
                              terms, 
                                    conditions, or privileges of employment."
    
    Id. S 2000e-2(a).  Arguably, the two sections should be  read
    
    together.
    
         Even so, "terms,  conditions, or  privileges" is  pretty
    
    open-ended 
                          language.  It obviously includes opportunities that
    
    are not strictly entitlements, Hishon v. King & Spalding, 
    467 U.S. 69
    , 75-76 (1984) (promotion to partner); and a number of
    
    cases have extended coverage  to slights or indignities  that
    
    might seem  evanescent, e.g., McKenzie  v. Illinois Dep't  of
    
    Transp., 
    92 F.3d 473
    , 484  (7th Cir.  1996) (employee  given
    
    tedious 
                       minor duties); Aviles-Martinez v. Monroig, 
    963 F.2d 2
    ,
    
    6 (1st Cir. 1992) (daily ridicule in clients' presence).
    
         On occasion, disadvantageous transfers have been treated
    
    as 
                  potentially 
                             within 
                                    the scope of Title VII.  E.g., Collins v.
    
    Illinois
                       , 
                         
    830 F.2d 692
    , 702-04 (7th Cir. 1987) (citing cases).
    
    The main authority cited by the district court, Haimovitz  v.
    
    United States  Dep't of Justice, 
    720 F. Supp. 516
     (W.D.  Pa.
    
    1989), 
                      aff'd
                           ,
                             
    902 F.2d 1560
     (3d Cir. 1990), did reject a claim
    
    where the employee had been transferred to another  location;
    
    but 
                   while 
                         the 
                            opinion 
                                    is 
                                       not crystal clear, the main reason was
    
    apparently 
                          a 
                            failure to show an illegal motive. Id. at 525-27.
    
                                -12-
                                            -12-
    
    
         Here, the claim concerns a refusal to transfer, arguably
    
    less intrusive than  involuntary relocation.  But  Randlett's
    
    affidavits make clear  that at HHS  a permanent transfer  for
    
    hardship 
                        reasons is a common enough practice and so arguably a
    
    "privilege" 
                           of 
                             employment.  For Randlett, the transfer here was
    
    doubtless as important as a promotion.  Assuming an  improper
    
    motive, 
                       it 
                          is hard to see why denial of a hardship transfer in
    
    this case could not  be discrimination under Title VII.   See
    
    Bauman
                      
                      v. 
                         Blo
                            ck, 
    940 F.2d 1211
    , 1229 (9th Cir.), cert. denied,
    
    
    502 U.S. 1005
     (1991).
    
         No doubt construing the statute in this manner opens the
    
    way  to  whimsical claims  by  employees  who  earlier  filed
    
    complaints and are now aggrieved by slights.  Possibly, there
    
    is room for a de minimis threshold, Williams v. Bristol-Myers
    
    Squibb Co., 
    85 F.3d 270
    , 274 (7th Cir. 1996), and  certainly
    
    good reason to insist on firm evidence of improper motive  by
    
    the employer.   But  given the  impact on  Randlett, and  her
    
    affidavits about customary practice, we cannot accept the HHS
    
    view 
                    that 
                         a 
                           refusal to transfer is automatically outside Title
    
    VII.
    
         We turn, therefore, to the district court's  alternative
    
    ground, namely, the lack of a "scintilla of evidence" to show
    
    retaliation. 
                             
                             To 
                               make 
                                    out a retaliation claim requires not only
    
    an 
                  adverse 
                          employment action and previously protected conduct,
    
    but 
                   also 
                        a 
                          colorable showing that "a causal connection existed
    
                                -13-
                                            -13-
    
    
    between 
                       the 
                          protected 
                                    conduct and the adverse action."  Fennell
    
    v. 
                  First 
                        Step Designs, Ltd., 
    83 F.3d 526
    , 535 (1st Cir. 1996).
    
    In 
                  other 
                        words, 
                              the 
                                  adverse action must have been taken for the
    
    purpose of retaliating.   And to  defeat summary judgment,  a
    
    plaintiff must  point to some  evidence of  retaliation by  a
    
    pertinent decisionmaker.  Id.
    
         The 
                        denial 
                               of 
                                 a 
                                   permanent transfer to the Boston office is
    
    the  principal decision  challenged  by Randlett,  and  every
    
    indication 
                          is 
                             that 
                                 this 
                                      decision was made by the HHS Office for
    
    Civil 
                     Rights 
                           in 
                              Washington.  Randlett's request was made to the
    
    Washington  office  and  denied  by  the  Washington  office.
    
    Randlett herself wrote to  the Boston EEO officer a few  days
    
    after filing her complaint to say that the concern was  "with
    
    the 
                   actions 
                           of OCR [Office of Civil Rights] in Washington, not
    
    Denver." 
                         
                         See
                             generally Long v. Eastfield College, 
    88 F.3d 300
    
    (5th Cir. 1996).
    
         It was thus  incumbent on Randlett, to justify trial  on
    
    this 
                    issue, 
                           to 
                             point 
                                   to 
                                      some evidence to show that officials in
    
    the Washington establishment had refused a permanent transfer
    
    to retaliate against  Randlett for her  1975 complaint.   See
    
    Mesnick  v. General Elec.  Co., 
    950 F.2d 816
    , 822 (1st  Cir.
    
    1991), 
                      cert. 
                            denied, 
    504 U.S. 985
     (1992).  This need to show a
    
    connection exists whether Randlett was seeking to make out  a
    
    prima 
                     facie 
                           case 
                               or 
                                  by 
                                     independent evidence challenging the HHS
    
    explanation  as pretext  and urging  independent evidence  of
    
                                -14-
                                            -14-
    
    
    discrimination.  Fennell, 83 F.3d at 535.  The latter is  the
    
    better 
                      perspective 
                                 since 
                                       (even before the lawsuit began) Dick's
    
    letter did  explain  HHS'  reasons for  denying  a  permanent
    
    transfer.
    
         The 
                        difficulty for Randlett is that there is virtually no
    
    evidence  that HHS  officials in  Washington acted  out of  a
    
    retaliatory 
                           motive 
                                 in 
                                    denying the permanent transfer to Boston.
    
    Randlett's 
                          main 
                              argument 
                                       for inferring an improper motive--that
    
    is, a connection  to her previous complaint--is based on  her
    
    affidavits about HHS practice in granting hardship transfers.
    
    If HHS handed out transfers as a matter of course whenever an
    
    employee showed a hardship need, it might well be  suspicious
    
    were Randlett alone singled out for a denial.
    
         But 
                        in 
                           fact 
                                there 
                                     is 
                                        no 
                                           showing that in denying Randlett's
    
    request, 
                        HHS 
                            was departing from its usual practice.  Carefully
    
    read, all that the  affidavits say is that HHS often  granted
    
    hardship transfers in similar  cases; there is no  indication
    
    that HHS granted  them invariably and  without regard to  the
    
    convenience of  the agency.   And  in this  instance HHS,  in
    
    denying 
                       Randlett's request, explained that reductions in force
    
    ("RIFs") 
                        and 
                            budget 
                                  cuts 
                                       had reduced its flexibility and it was
    
    not convenient to the agency to transfer Randlett permanently
    
    to Boston.
    
         Randlett's only  other  evidence is  several  affidavits
    
    describing 
                          reassignments and hires within the Boston office in
    
                                -15-
                                            -15-
    
    
    or  around  1982.    This  confirms  that  there  were   some
    
    reassignments
                             (due, at least in part, to the RIFs mentioned in
    
    Dick's letter) and at least one new hire for a GS-12 position
    
    after Randlett's resignation.  But nothing in the  affidavits
    
    shows retaliation  against  Randlett.   At  most,  one  might
    
    conclude that  some  other mix  of reassignments  might  have
    
    produced a  GS-13  position for  Randlett, doubtless  to  the
    
    disadvantage of some other employee.
    
         Whatever  inference  might be  drawn  from  any  of  the
    
    affidavits 
                          has 
                              to 
                                be 
                                   set 
                                       against other facts.  However careless
    
    Jefferson  may  have  been  in  arranging  Randlett's  timely
    
    reassignment to Denver,  higher officials in  Washington--who
    
    were responsible  for  refusing the  permanent  transfer--had
    
    helped Randlett from the start, both by securing a  temporary
    
    position in Boston and by deferring her start date in Denver.
    
    Taking everything  together, no basis  exists for  a jury  to
    
    conclude that the  permanent transfer was denied in order  to
    
    retaliate.
    
         Our  causation analysis  would  be  quite  different  if
    
    Randlett's claim related to  Aguilar's action in refusing  to
    
    grant an additional temporary delay to Randlett to permit her
    
    to delay reporting to duty in Denver in early 1983.  The tone
    
    of 
                  Aguilar's 
                           alleged 
                                   remarks, quoted above, might create a jury
    
    issue as  to  Aguilar's  own motive  in  refusing  Randlett's
    
    requests to him.  This is so even though, absent the remarks,
    
                                -16-
                                            -16-
    
    
    the Denver  office had good  reason for  wanting Randlett  to
    
    report 
                      to 
                        duty 
                             (apparently, it was paying for Randlett's detail
    
    to Boston and had to leave her permanent position unfilled).
    
         We need not  decide this issue because Randlett has  not
    
    complained of the Denver office's denial of further temporary
    
    deferrals  in   her  reporting  date.     Rather,  her   1982
    
    administrativ
                            e complaint, which was the condition precedent to
    
    this lawsuit, see 42 U.S.C. S 2000e-5(f), is directed at  the
    
    Washington 
                          officials' denial of a permanent transfer.  That is
    
    the 
                   relief 
                          she seeks in the district court.  No claim was made
    
    concerning 
                          Aguilar's denial of a further temporary deferral of
    
    her return to Denver.
    
         The   statutory    regime   requiring   exhaustion    of
    
    administrative 
                              remedies 
                                      itself precludes any effort by Randlett
    
    at this late date to develop and pursue a new charge directed
    
    against Aguilar's own conduct in refusing further  deferrals.
    
    Lattimore
                         
                         v. 
                            Polaroid Corp., 
    99 F.3d 456
    , 464 (1st Cir. 1996).
    
    Nor is this some slip  of the pen:  everything in  Randlett's
    
    situation makes clear that  the central grievance relates  to
    
    Washington's  denial  of  a  permanent  transfer  to  Boston.
    
    Accordingly, Aguilar's  actions  in  Denver,  whatever  their
    
    motive,  would not support  a trial of  the only claims  that
    
    Randlett has made and preserved.
    
         No one  can view  with  pride HHS'  record of  delay  in
    
    investigating this case or fail to sympathize with Randlett's
    
                                -17-
                                            -17-
    
    
    predicament--
                            a job in one city and an aging parent in another.
    
    At oral argument, we  forcefully urged the parties to seek  a
    
    settlement and  asked  them  to use  our  court's  settlement
    
    program, delaying  this decision until  we were advised  that
    
    efforts 
                       at 
                          settlement had failed.  It will now be obvious that
    
    both sides would have gained through a settlement.  
    
         In sum, we affirm the decision of the district judge  on
    
    the grant of summary judgment, although our reasoning differs
    
    in certain respects, and we decline to order costs for either
    
    side.  It  appears from the briefs  and oral argument that  a
    
    ministerial 
                           issue 
                                relating to the calculation of certain health
    
    insurance 
                         benefits due to Randlett remains to be resolved.  We
    
    therefore  remand the  case to  the district  court for  this
    
    limited purpose.
    
         It is so ordered.
    
                                -18-
                                            -18-