DeNovellis v. Shalala ( 1997 )


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                    United States Court of Appeals
                        For the First Circuit
                                    For the First Circuit
                                             
    
    No. 96-2050
    
                         VINCENT DeNOVELLIS,
    
                        Plaintiff, Appellant,
    
                                  v.
    
      DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,
    
                         Defendant, Appellee.
    
                                             
    
             APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                  FOR THE DISTRICT OF MASSACHUSETTS
    
              [Hon. Patti B. Saris, U.S. District Judge]
                                                                   
    
                                             
    
                                Before
    
                        Boudin, Circuit Judge,
                                                         
    
                    Bownes, Senior Circuit Judge,
                                                            
    
                      and Stahl, Circuit Judge.
                                                          
    
                                             
    
    Jodie Grossman, with whom ALEF, Inc., was on brief for appellant.
                                                    
    George B. Henderson, II, Assistant United States Attorney, with
                                       
    whom Donald K. Stern, United States Attorney, was on brief for
                                
    appellee.
    
                                             
    
                          September 2, 1997
                                             
    
    
              BOWNES,  Senior Circuit  Judge.   Plaintiff Vincent
                          BOWNES,  Senior Circuit  Judge.
                                                        
    
    DeNovellis   brought   this    action   alleging   employment
    
    discrimination  under Title  VII of the  Civil Rights  Act of
    
    1964,  42  U.S.C.     2000e   et  seq.,  and  under  the  Age
                                                      
    
    Discrimination  in Employment Act (ADEA), 29  U.S.C.   621 et
                                                                             
    
    seq.,  against  his  employer, the  Secretary  of  the United
                    
    
    States  Department of Health  and Human  Services (HHS).   He
    
    alleged that he was discriminated against on the basis of his
    
    race, national origin, and  age, in his work  assignments, in
    
    denials of promotions and awards, and in being subjected to a
    
    hostile work environment.  The district court granted summary
    
    judgment to the defendant.  We affirm.
    
                                  I.
    
                               A. Facts
                                                   
    
              Viewed in the light most favorable to the nonmoving
    
    party (DeNovellis) and  drawing all reasonable inferences  in
    
    his favor,  the following facts are treated as undisputed for
    
    purposes of the motion for summary judgment.  DeNovellis is a
    
    white male of Italian descent.  He was sixty-six years old at
    
    the time he filed this action in 1994.  
    
              From  1979  to  1991 DeNovellis  served  as  Deputy
    
    Regional Administrator (DRA) of the Boston Regional Office of
    
    Human  Development Services  (HDS), which  was  part of  HHS.
    
    DeNovellis's   position   was   eliminated   in   an   agency
    
    reorganization  that occurred in  the spring of  1991.  After
    
                                 -2-
                                              2
    
    
    some  months "in limbo," in the form of temporary assignments
    
    to  "meaningless" positions,  DeNovellis  became the  program
    
    manager of the Aid to Families with Dependent Children (AFDC)
    
    program  within   the  recently  formed   Administration  for
    
    Children  and  Families  (ACF).    His  civil  service  grade
    
    remained the same:  GS-14.  
    
              Until the reorganization,  DeNovellis's supervisor,
    
    A.  Kenton Williams, was  the Regional Administrator  (RA) of
    
    HDS.  Williams was a black male of the age of fifty-five when
    
    this action  was filed.   There were  racial tensions  in the
    
    office.   Williams  often spoke  out  against the  "insidious
    
    racism  that  exists  in  our  society,"  and,  according  to
    
    DeNovellis,  "would try to justify the behavior and reactions
    
    of  black staff persons, who having  been subjected to racial
    
    discrimination  over  the  years,  reacted differently  under
    
    certain circumstances."  Williams also wrote a  letter to the
    
    editor  of the  Boston Globe  commenting  on the  "tremendous
                                            
    
    pressures" faced by  black executives.  These  comments about
    
    the  inequities  suffered  by  blacks  made  DeNovellis  feel
    
    uncomfortable. 
    
              There were  also ethnic  and race-related  comments
    
    around the  office that  Williams condoned.   Members  of the
    
    staff would say things like  "Vinnie, why don't you have your
    
    people (Mafia) in  the North  End take care  of them."   (The
    
    North End is a largely Italian neighborhood of Boston.)  Both
    
                                 -3-
                                              3
    
    
    Williams and a black friend  of his, St. Clair Phillips, made
    
    negative comments about  DeNovellis's ethnicity.   And  staff
    
    members made general references to "you whites" in Williams's
    
    presence.
    
              Williams  and  DeNovellis   also  had  work-related
    
    conflicts.   Part  of DeNovellis's  job  as DRA  was to  take
    
    charge  of the regional  activities during the  RA's absence.
    
    Williams   was  often  absent  from  the  office  and  became
    
    concerned that DeNovellis was signing  so much correspondence
    
    on Williams's behalf that it would highlight the frequency of
    
    his absences.   For this reason, Williams  ordered DeNovellis
    
    in 1989 to stop signing letters on his behalf.
    
              In 1989 and  1990, other government administrators,
    
    including   Williams's  supervisor   in  Washington,   Pamela
    
    Coughlin,  who was white,  told Williams that  DeNovellis was
    
    spreading negative comments about Williams.  On more than one
    
    occasion, Williams also  had to intervene in  heated disputes
    
    that DeNovellis  had with  other people in  the office.   One
    
    such incident  pertained to  the distribution  of space,  and
    
    another concerned  whether a  minority student  (who did  not
    
    report to DeNovellis) had been absent from work.
    
              In 1990,  certain federal employees were  given the
    
    opportunity  to  choose  early  retirement.   DeNovellis  was
    
    eligible  to retire but rejected  the offer.  Several people,
    
                                 -4-
                                              4
    
    
    including  Williams and  two  of  his  black  friends,  urged
    
    DeNovellis to take this opportunity and retire.
    
              The   heart   of  DeNovellis's   complaint   is  an
    
    assignment  to  a  temporary  "detail"  to  an "unestablished
    
    position" in the Office of Fiscal Operations (OFO) in October
    
    1990.   Williams  claims  he was  instructed  to  order  this
    
    reassignment   by    Coughlin,   his    (white)   supervisor.
    
    Nevertheless,  Williams now  admits that  the  detail was  "a
    
    sham," and was  concocted in  part because  Williams did  not
    
    want  DeNovellis to  be  his  deputy.   On  October 9,  1990,
    
    Williams removed DeNovellis  from the order of  succession to
    
    act as RA.
    
              DeNovellis suffered no diminution in grade, pay, or
    
    benefits during the detail.  He worked under  the supervision
    
    of  Williams's friend,  St. Clair  Phillips,  who was  black.
    
    Officially,   DeNovellis   was  responsible   for   financial
    
    activities, for which he had  no training or capability.  For
    
    the  first month  and a  half, he  "performed the  same (DRA)
    
    duties under  a new  supervisor."  In  mid-November, the  new
    
    supervisor,  Phillips,  asked  Williams  to  end  the  detail
    
    because DeNovellis did not have the background to perform the
    
    OFO work and he  was refusing to perform his old  DRA duties.
    
    Williams refused.   The detail was due to  expire in February
    
    1991 but, upon Williams's request, was extended through March
    
    31, 1991.  
    
                                 -5-
                                              5
    
    
              On  March   8,  1991,   DeNovellis  filed   an  EEO
    
    complaint,  alleging   age,   race,   and   national   origin
    
    discrimination   in   assignment  of   duties,   awards,  and
    
    reassignment.  On April 11,  three days after the EEO officer
    
    interviewed Williams,  Williams filed  forms requesting  that
    
    DeNovellis's position be switched with that of Paul Kelley, a
    
    black  male who  was a  friend of  Williams's  and who  was a
    
    supervisory  accountant in  OFO.    According to  DeNovellis,
    
    Williams's purpose in making this request  was to protect the
    
    grades of Phillips and Kelley, both black and both friends of
    
    his, in  an impending  classification review.   However,  the
    
    classification  review and the proposed "job swap" were never
    
    carried out, overtaken  by the agency's restructuring  in the
    
    spring of 1991.
    
              Around  the  same  time  that DeNovellis's  initial
    
    detail expired  at the  end of March  1991, HHS  underwent an
    
    internal  restructuring.   The former  HDS  and another  sub-
    
    agency of HHS, the Family Support Administration, were merged
    
    into  a new  entity,  the  Administration  for  Children  and
    
    Families (ACF).   The  restructuring took  several months  to
    
    effectuate.  During the transition, DeNovellis maintained his
    
    title of DRA of HDS and carried out some tasks of  the Deputy
    
    position, but he received no official assignments; as before,
    
    people came to him for information.  
    
                                 -6-
                                              6
    
    
              In  April or May 1991, Hugh Galligan, a white male,
    
    was appointed Acting  Regional Administrator of the  new ACF;
    
    he appointed Williams as his Deputy.  By May, Williams was no
    
    longer in charge  of the Boston office.   The appointments of
    
    Galligan and Williams were finalized on August 23, 1991.  Two
    
    days  later,  DeNovellis's  position   was  "realigned";  his
    
    official title  remained  DRA of  HDS  (even though  HDS  was
    
    phasing out) but this was now within the new ACF.  The result
    
    was that Williams was DRA of ACF, and DeNovellis retained the
    
    job  title "DRA" but  remained unassigned in  the new agency.
    
    His grade remained unchanged throughout this period.
    
              In   December  1991  Williams  left  Boston  for  a
    
    position  in Washington,  D.C.    Galligan  then  transferred
    
    Phillips, who had  been the head of OFO of the new agency, to
    
    the DRA position at  the new agency.  Because  Phillips was a
    
    GS-15 and  the new  DRA opening was  a GS-15,  Galligan could
    
    transfer  Phillips  laterally  into  the  position without  a
    
    competitive search.  Since  DeNovellis was a GS-14,  he could
    
    not have been promoted to Williams's former position unless a
    
    job  vacancy announcement  had been  made  and a  competitive
    
    search  performed.   There is no  evidence that  Galligan was
    
    precluded  from instituting  such  a  search and  considering
    
    DeNovellis for the position.
    
              In May 1992  DeNovellis was reassigned from  DRA of
    
    the Office of Family Security  (OFS) in the new agency, to  a
    
                                 -7-
                                              7
    
    
    supervisory  position as  program manager  in  the same  OFS.
    
    This  was not part of the management  team of the new agency.
    
    DeNovellis  was  the  last person  appointed  to  a permanent
    
    position in the new agency.   Galligan has since detailed him
    
    twice  to the  OFO as  an assistant  goal leader  for ongoing
    
    restructuring.   (Thus, in  some respects, DeNovellis  claims
    
    his job assignments have been inappropriate because they were
    
    beneath  his DRA status  and in other  respects inappropriate
    
    because  the  positions  required   accounting  or  financial
    
    qualifications which he did not possess.)
    
              According  to  DeNovellis,  at  least  part  of the
    
    reason for  the delay in  his reassignment in the  new agency
    
    was a "position  paper" he  wrote in early  1992.  The  paper
    
    pointed out the "convoluted interactions that were going on,"
    
    and  it accidently  was  mailed to  a  lot of  people  in the
    
    region, creating a furor.  Galligan was asked to find out who
    
    was   responsible  for  this  position  paper.    During  the
    
    investigation, DeNovellis's computer was confiscated.
    
                                 B.  
    
                      District Court Proceedings
                                                            
    
              The district court granted  summary judgment to the
    
    Secretary as to all claims.  It dealt separately with each of
    
    the four types of adverse  action alleged by DeNovellis.  The
    
    court relied  on Landgraf  v. USI Film  Prods., 
    511 U.S. 244
                                                              
    
    (1994), to  reject  the Title  VII claim  for deprivation  of
    
                                 -8-
                                              8
    
    
    duties   that  occurred  prior  to  November  21,  1991,  the
    
    effective  date of the Civil Rights Act  of 1991, 42 U.S.C.  
    
    1981a ("the  Act" or "the  1991 Act").  The  court concluded,
    
    essentially,  that  even   if  DeNovellis  was  discriminated
    
    against,  he was  not entitled  to any  remedy for  it.   The
    
    equitable remedies  available under  Title VII  prior to  the
    
    1991 Act were not appropriate  because he suffered no loss in
    
    pay  or  loss   of  job  that  would  warrant   back  pay  or
    
    reinstatement (he did not  seek reinstatement).  And  the new
    
    remedies  made available under  the 1991 Act  (in particular,
    
    compensatory  damages) are only available for acts which took
    
    place after November 21, 1991, and therefore did not apply to
    
    DeNovellis's claims of pre-Act discrimination.1
    
              The district  court rejected DeNovellis's  claim of
    
    post-Act  deprivation of  duties  based  on  his  failure  to
    
    present sufficient evidence  to enable a reasonable  trier of
    
    fact   to  conclude  that  the  employer's  motive  for  such
    
    deprivation was discriminatory.   Whereas DeNovellis provided
    
    indirect  evidence that Williams might have been motivated by
    
    improper reasons  in making pre-Act assignments, Williams was
    
    no longer in charge of the  Boston office after May 1991  and
    
    he left Boston  altogether in December 1991.   The court held
    
    that  DeNovellis could not bootstrap the pre-May 1991 alleged
    
                        
                                    
    
    1.  The  court also  concluded that  such  remedies were  not
    available under the  ADEA as a matter of  law, and DeNovellis
    has not appealed that ruling.
    
                                 -9-
                                              9
    
    
    discrimination  by Williams  into sufficient  evidence for  a
    
    reasonable  trier of fact to conclude that post-November 1991
    
    decisions were animated by similar illegal bias. 
    
              DeNovellis  also  made  a  claim  of  hostile  work
    
    environment based  on  negative  comments  about  his  ethnic
    
    background  coupled with  his "sham  detail."   The  district
    
    court rejected this claim for essentially the same reasons it
    
    rejected  the  deprivation  of duties  claims:    any pre-Act
    
    violation was a wrong without a remedy based on Landgraf, and
                                                                        
    
    there   was   insufficient   evidence   that   any   post-Act
    
    discrimination  had  occurred.    The  court  stated  in  one
    
    sentence an alternative  ground for its  ruling:  failure  to
    
    exhaust administrative remedies.2
    
              The district court also granted summary judgment to
    
    the Secretary  on DeNovellis's  claim that  his computer  was
    
    confiscated in retaliation for filing an EEO  complaint.  The
    
    court rejected this claim under  Title VII on the ground that
    
    DeNovellis  failed  to exhaust  his  administrative remedies,
    
    because  his EEO complaint alleged nothing about retaliation.
    
    The court  rejected the retaliation  claim under ADEA  on the
    
    merits (the  government had  waived exhaustion  as to  ADEA).
    
    The court  concluded that  DeNovellis failed  to present  any
    
                        
                                    
    
    2.  DeNovellis also presented  to the district court  a claim
    that he  was  denied the  opportunity  to be  considered  for
    promotion to the  DRA position in the new  agency (ACF) after
    Williams vacated  it in  December 1991.   He does  not pursue
    this claim on appeal. 
    
                                 -10-
                                              10
    
    
    evidence to establish  a causal connection between  his March
    
    1991 age discrimination  complaint against  Williams and  the
    
    February  1992  confiscation  of  his  computer by  Galligan.
    
    DeNovellis does not appeal this conclusion.
    
              DeNovellis  pursues  three   arguments  on  appeal:
    
    (1) that he  is entitled  to the  remedies delineated in  the
    
    Civil  Rights Act of  1991 because  his pre-Act  and post-Act
    
    deprivation of duties  were part of one  continuing violation
    
    and the effects of his "employment purgatory" extended beyond
    
    the effective  date of the  Act; (2) that the  district court
    
    erred in requiring him to exhaust his administrative remedies
    
    as to  post-detail deprivations  of duties  and hostile  work
    
    environment;  (3)  that  the district  court  was  obliged to
    
    provide him  with a declaratory  judgment and/or an  award of
    
    attorney's fees.
    
                                 II.
    
                          Standard of Review
                                                        
    
              We  review  grants  of  summary  judgment  de novo.
    
    Dubois  v. United States Dep't of Agriculture, 
    102 F.3d 1273
    ,
                                                             
    
    1283 (1st Cir.  1996), cert. denied, 117 S.  Ct. 2510 (1997).
                                                   
    
    Summary  judgment   is  appropriate   when  "the   pleadings,
    
    depositions,  answers to  interrogatories, and  admissions on
    
    file,  together with the affidavits, if  any, show that there
    
    is no  genuine issue  as to  any material  fact and that  the
    
                                 -11-
                                              11
    
    
    moving party is entitled to a judgment as a matter of  law."3
    
    Fed. R. Civ. P. 56(c).
    
              "The very mission of the summary judgment procedure
    
    is to pierce the  pleadings and to assess the  proof in order
    
    to see whether there is a  genuine need for trial."  Fed.  R.
    
    Civ.  P. 56(e) advisory  committee's note to  1963 Amendment.
    
    The  moving  party  "bears   the  initial  responsibility  of
    
    informing the district court of the basis for its motion, and
    
    identifying  those portions of [the record] which it believes
    
    demonstrate the absence of a genuine issue of material fact."
    
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986).  Once the
                                        
    
    moving  party has properly  supported her motion  for summary
    
    judgment,  the burden  shifts to  the  nonmoving party,  with
    
    respect to each issue on which he has the burden of proof, to
    
    demonstrate that a trier of fact reasonably could find in his
    
    favor.   Id. at 322-25.   At this stage, the  nonmoving party
                            
    
    "may  not rest  upon  mere  allegation  or  denials  of  [the
    
    movant's] pleading, but must set forth specific facts showing
    
    that there  is a genuine issue"  of material fact as  to each
    
    issue upon which  he would bear the ultimate  burden of proof
    
                        
                                    
    
    3.  A factual dispute is material if it has the potential to
    affect the outcome of the litigation under the applicable
    law; it is genuine if there is evidence sufficient to support
    rational resolution of the point in favor of the nonmoving
    party.  See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    ,
                                                           
    248 (1986).
    
                                 -12-
                                              12
    
    
    at trial.   Anderson, 477 U.S. at 256;  see Celotex, 477 U.S.
                                                                   
    
    at 321-23.
    
              Like the  district  court, in  deciding  a  summary
    
    judgment motion we are obliged to view the facts in the light
    
    most favorable to the nonmoving party, drawing all reasonable
    
    inferences in that party's favor.   Dubois, 102 F.3d at 1284.
                                                          
    
    The test is  whether, as to each essential  element, there is
    
    "sufficient  evidence favoring the nonmoving party for a jury
    
    to return  a verdict  for  that party.   If  the evidence  is
    
    merely  colorable or is  not significantly probative, summary
    
    judgment  may be  granted."   Anderson,  477  U.S. at  249-50
                                                      
    
    (citation omitted).  
    
              Summary judgment is not "automatically preclude[d]"
    
    even in cases where elusive concepts such as motive or intent
    
    are at issue.  Valles Velazquez v. Chardon, 
    736 F.2d 831
    , 833
                                                          
    
    (1st  Cir. 1984).   "[I]f the  non-moving party  rests merely
    
    upon  conclusory  allegations,   improbable  inferences,  and
    
    unsupported speculation," summary judgment may be appropriate
    
    even where  intent is an  issue.  Smith v.  Stratus Computer,
                                                                             
    
    Inc.,  
    40 F.3d 11
    , 12  (1st Cir.  1994) (internal  quotation
                    
    
    marks  omitted).   Where, however,  the  nonmoving party  has
    
    produced more than  that, trial courts should  "use restraint
    
    in granting summary judgment" where  discriminatory animus is
    
    in  issue.     Valles  Velazquez,  736   F.2d  at  833;   see
                                                                             
    
    Stepanischen v.  Merchants Despatch Transp.  Corp., 722  F.2d
                                                                  
    
                                 -13-
                                              13
    
    
    922,  928 (1st Cir. 1983) (courts are "particularly cautious"
    
    about granting summary judgment in such cases).
    
                                 III.
    
             Landgraf and the Continuing Violation Issue
                                                                    
    
              The  district court granted summary judgment to the
    
    government as to  pre-Act deprivation of  duties.  The  court
    
    correctly found that the  five-month assignment of DeNovellis
    
    to a  financial position for  which he had no  background and
    
    the concomitant deprivation of  meaningful duties constituted
    
    an adverse employment action within the meaning of Title VII.
    
    See  Blackie v.  Maine,  
    75 F.3d 716
    ,  725  (1st Cir.  1996)
                                      
    
    (holding that  "tak[ing] something  of  consequence from  the
    
    employee,"   including   "divesting    her   of   significant
    
    responsibilities," constitutes an adverse employment action);
    
    see also  Collins v.  Illinois, 
    830 F.2d 692
    , 704  (7th Cir.
                                              
    
    1987).    The  court  also found  that  there  was sufficient
    
    evidence  in the  record to  create a  factual dispute  as to
    
    whether the sham  detail and the  deprivation of duties  were
    
    motivated  by illegal discrimination on Williams's part or by
    
    race-neutral  (and therefore  not  violative  of  Title  VII)
    
    personality  conflict  or  cronyism.   The  court  held that,
    
    although   DeNovellis  would  have  a  triable  issue  as  to
    
    liability for  pre-Act discrimination, he  had no right  to a
    
    remedy under the law as it existed prior to the 1991 Act.
    
                                 -14-
                                              14
    
    
              Prior to enactment of the Civil Rights Act of 1991,
    
    plaintiffs  in  Title  VII cases  were  limited  to equitable
    
    remedies (including back  pay, reinstatement, and  injunctive
    
    relief).   Landgraf  v. USI  Film Prods.,  
    511 U.S. 244
    , 252
                                                        
    
    (1994).   The  Act,  which became  effective on  November 21,
    
    1991, amended Title VII, and "effect[ed] a major expansion in
    
    the    relief   available    to    victims   of    employment
    
    discrimination."  Landgraf, 511 U.S. at 254-55.  The 1991 Act
                                          
    
    created  a  right   on  the  part  of   individuals  alleging
    
    intentional unlawful  discrimination to  recover compensatory
    
    damages  "for   future  pecuniary  losses,   emotional  pain,
    
    suffering, inconvenience, mental  anguish, loss of  enjoyment
    
    of life, and other nonpecuniary  losses," as well as punitive
    
    damages.   42  U.S.C.     1981a(a)(1) &  (b)(3)  (1994);  see
                                                                             
    
    Morrison v. Carleton  Woolen Mills, Inc.,  
    108 F.3d 429
    ,  437
                                                        
    
    (1st Cir. 1997).  The Act  also gave Title VII plaintiffs the
    
    right to a  jury trial in cases where  they seek compensatory
    
    or  punitive damages.    42  U.S.C.    1981a(c).   These  new
    
    provisions,  however, do not  apply to conduct  that occurred
    
    before  the effective  date of  the Act,  November 21,  1991.
    
    Landgraf, 511 U.S. at 247, 286.
                        
    
              Applying Landgraf to the instant case, the district
                                           
    
    court  concluded that, even  if DeNovellis were  to establish
    
    after trial that  his sham detail and  employment "purgatory"
    
    violated his rights under Title VII, he would not be entitled
    
                                 -15-
                                              15
    
    
    to any  remedy.   This is because  the sham  detail ended  in
    
    March  1991, prior  to the  effective date  of the  1991 Act.
    
    Therefore,  even if  liability were found  after trial  as to
    
    that detail, the only remedies that would have been available
    
    to DeNovellis  were equitable,  such  as reinstatement,  back
    
    pay, or  an injunction.   As the district court  analyzed the
    
    remedies for  pre-Act conduct:  because  DeNovellis "suffered
    
    no loss of pay, he may  not recover back pay; because he  did
    
    not quit  his job, he does not  seek reinstatement.  There is
    
    no possibility  of  enjoining Williams  from  future  details
    
    because he  is no longer  in the office, and  DeNovellis does
    
    not  seek  an injunction  against  details by  Galligan.   In
    
    short, the five-month detail ending in the spring of 1991, if
    
    based  upon illegal  discrimination, was  a  wrong without  a
    
    remedy."    As to  the  post-Act deprivation  of  duties, the
    
    district  court  found  insufficient  evidence  to  create  a
    
    triable issue as  to discriminatory intent.   DeNovellis does
    
    not directly appeal the latter determination.
    
              Instead, DeNovellis takes  issue with both rulings,
    
    pre-Act  and  post-Act,  by essentially  conflating  the two.
    
    DeNovellis argues  that he  was  the victim  of a  continuing
    
    violation  that began before November 21, 1991, and continued
    
    thereafter, entitling him  to compensatory damages under  the
    
    1991  Act.  A related  continuing violation argument has been
    
    applied   to  other   time   requirements  imposed   by   the
    
                                 -16-
                                              16
    
    
    antidiscrimination laws,4 but the  theory on which DeNovellis
    
    bases his argument is not one that the courts have approved.
    
              We  have   delineated  two   types  of   continuing
    
    violation cases:   systemic and serial.   Pilgrim v. Trustees
                                                                             
    
    of Tufts  College, 
    118 F.3d 864
    ,     , 
    1997 WL 370286
    ,  at *3
                                 
    
    (1st  Cir.  1997);  see Barbara  Lindemann  &  Paul Grossman,
                                       
    
    Employment  Discrimination  Law  1351-63 (3d  ed.  1996).   A
                                               
    
    systemic violation usually "has its roots in a discriminatory
    
    policy or practice; so long  as the policy or practice itself
    
    continues into  the limitation  period, a  challenger may  be
    
    deemed to have filed a timely complaint," even if he fails to
    
    show  "an   identifiable  discrete   act  of   discrimination
    
    transpiring within  the period."   Jensen v. Frank,  
    912 F.2d 517
    , 523 (1st Cir. 1990).
    
              DeNovellis does not argue that there was a systemic
    
    violation  here.    Rather,  he  argues  (A)  that  a  serial
    
    violation  occurred; (B) that  the continuing effects  of his
    
    pre-Act  deprivation  of  duties   constituted  a  continuing
    
    violation;  and (C)  that he  was  subjected to  a continuing
    
    hostile  work environment.   We  will address  each of  these
    
    arguments in turn.
    
                        
                                    
    
    4.  The issue usually  arises in the context of  a statute of
    limitations challenge.   See, e.g., United Airlines,  Inc. v.
                                                                             
    Evans, 
    431 U.S. 553
     (1977).    But a  continuing  violation
                     
    theory could be  applied to any  time requirement imposed  by
    Title VII,  whether it be  the effective date of  an amending
    statute, as here, or a statute of limitations, as in Evans.
                                                                          
    
                                 -17-
                                              17
    
    
                         A.  Serial Violation
                                                         
    
              A  serial violation  "is composed  of  a number  of
    
    discriminatory acts  emanating from  the same  discriminatory
    
    animus,  each act  constituting  a separate  wrong actionable
    
    under Title  VII."  Jensen,  912 F.2d  at 522; Mack  v. Great
                                                                             
    
    Atl. & Pac. Tea Co.,  
    871 F.2d 179
    , 183 (1st Cir.  1989).  To
                                   
    
    state  a claim  under  this  type  of  continuing  violation,
    
    DeNovellis would  have to show  that at least  one actionable
    
    violation  occurred  within the  relevant  time  period, even
    
    though the series  had begun prior to November 21, 1991.  See
                                                                             
    
    id.; Pilgrim,  118 F.3d at     , 
    1997 WL 370286
    , at *3.   He
                            
    
    could then be awarded the remedies made available in the 1991
    
    Act.  Cf. Sabree  v. United Bhd. of Carpenters & Joiners, 
    921 F.2d 396
    , 401  (1st  Cir. 1990)  (In a  continuing violation
    
    case, back  pay remedy  "may be based  on acts  that occurred
    
    prior  to the limitations  period when  a violation  has been
    
    established by an act within the period.").  We   must   ask,
    
    therefore,  whether  DeNovellis's   post-Act  deprivation  of
    
    duties constituted one  or more separate violations  of Title
    
    VII.  To show an  actionable violation, DeNovellis would have
    
    to  satisfy   the  familiar   three-step  McDonnell   Douglas
                                                                             
    
    framework for analyzing discrimination claims.  See McDonnell
                                                                             
    
    Douglas   Corp.  v.  Green,  
    411 U.S. 792
    ,  802-05  (1973);
                                          
    
    Lattimore  v.  Polaroid Corp.,  
    99 F.3d 456
    ,  465  (1st Cir.
                                             
    
    1996).  Of  critical importance here, he would  have to offer
    
                                 -18-
                                              18
    
    
    facts,  at an  evidentiary level  sufficient  to withstand  a
    
    motion for summary judgment, showing that the alleged adverse
    
    employment action  was  motivated by  discrimination  on  the
    
    basis  of his  race, national  origin,  or age  (for an  ADEA
    
    violation).   See St.  Mary's Honor Ctr.  v. Hicks,  
    509 U.S. 502
    , 511 (1993); Texas Dep't of Community Affairs v. Burdine,
                                                                            
    
    
    450 U.S. 248
    , 253 (1981) ("The ultimate  burden of persuading
    
    the   trier  of   fact  that   the  defendant   intentionally
    
    discriminated against the plaintiff remains at all times with
    
    the   plaintiff").      Of   course,   direct   evidence   of
    
    discriminatory  intent  is   often  hard  to  come   by,  and
    
    circumstantial  evidence is often  the only means  of proving
    
    such intent.  See United States Postal Serv. Bd. of Governors
                                                                             
    
    v. Aikens,  
    460 U.S. 711
    ,  716 (1983); Lindemann  & Grossman,
                         
    
    supra,  at 11.  As  the Court noted  in Hicks, DeNovellis may
                                                             
    
    show  discriminatory  motive by  circumstantial means:   "The
    
    factfinder's  disbelief of  the reasons  put  forward by  the
    
    defendant  (particularly if  disbelief  is accompanied  by  a
    
    suspicion  of mendacity) may,  together with the  elements of
    
    the   prima   facie   case,  suffice   to   show  intentional
    
    discrimination.  Thus, rejection of the defendant's proffered
    
    reasons will  permit [but not  require] the trier of  fact to
                                    
    
    infer the ultimate  fact of intentional discrimination,  and,
    
    . . .  upon   such   rejection,  no   additional   proof   of
    
    discrimination   is  required."    Hicks,  509  U.S.  at  511
                                                        
    
                                 -19-
                                              19
    
    
    (footnote  and internal  quotation marks  omitted); see  also
                                                                             
    
    Burdine,  450 U.S.  at  256  (plaintiff  may  succeed  either
                       
    
    directly  or  "indirectly  by  showing  that  the  employer's
    
    proffered explanation is unworthy of credence."). 
    
              "[A]t  the  summary  judgment  stage  the   judge's
    
    function is not  himself [or herself]  to weigh the  evidence
    
    and  determine  the  truth  of the  matter  but  to determine
    
    whether there is  a genuine issue for trial."   Anderson, 477
                                                                        
    
    U.S. at 249.  The district court found that DeNovellis failed
    
    to  offer sufficient evidence,  direct or  circumstantial, to
    
    meet his  burden, even at  the summary judgment stage  of the
    
    litigation,   of   providing    substantive   evidence   that
    
    discrimination  was a factor  in his post-Act  deprivation of
    
    duties.  
    
              DeNovellis does not seriously  contest that finding
    
    on appeal.   Nor could he:  the  record in this case presents
    
    qualitatively different  scenarios  for the  pre-Act and  the
    
    post-Act  periods.  The  district court correctly  found that
    
    there was enough  evidence of possible  discriminatory animus
    
    between Williams  and DeNovellis that  a jury could  find the
    
    pre-Act detail was  motivated by discrimination and  not mere
    
    personality  differences or cronyism.   But once  that detail
    
    ended and  Williams was no  longer in charge of  the Regional
    
    Office, the reasons for DeNovellis's assignments were neither
    
    analogous nor part of the  same pattern or series.  There  is
    
                                 -20-
                                              20
    
    
    precious little  evidence or inference  to get to a  trier of
    
    fact  on   discriminatory  motive  for   post-Act  employment
    
    decisions.  Of course, discrimination is not precluded merely
    
    because  Williams was no longer in charge.  Nor does the fact
    
    that  Galligan is white insulate the  defendant from a charge
    
    that  Galligan's actions were motivated  by race.  After all,
    
    for  the  first  eight  months of  Galligan's  tenure  as RA,
    
    Williams was  Galligan's deputy.  Galligan, as the new person
    
    in the  office, might  very well have  given great  weight to
    
    Williams's    allegedly    biased    recommendations    about
    
    reassignment    of   subordinate    personnel   during    the
    
    reorganization, transition, and realignments.  But DeNovellis
    
    presented no  evidence of  such discriminatory taint,  either
    
    directly or by inference.  
    
              Indeed,  there   is  evidence   to  the   contrary.
    
    Bureaucratic  delays arising  from the  reorganization, which
    
    indisputably  had nothing  to  do  with  DeNovellis  or  with
    
    invidious  characteristics,  overtook  DeNovellis's  personal
    
    situation.   Further, at  his  deposition, DeNovellis  denied
    
    that  any of Galligan's  actions were motivated  by invidious
    
    discrimination   in  any   decision  affecting   DeNovellis's
    
    employment.  And DeNovellis  himself attributed a significant
    
    part of the delay in assigning him to a permanent position in
    
    the  new agency to his own error  in judgment:  the "position
    
    paper" that he wrote and  widely disseminated.  The  district
    
                                 -21-
                                              21
    
    
    court  correctly concluded  that  the  record  in  this  case
    
    contains  virtually  no  evidence  of  post-Act   violations.
    
    Therefore,  DeNovellis  cannot  rely  on  a serial  violation
    
    theory to defeat the Secretary's motion for summary judgment.
    
                        B.  Continuing Effects
                                                          
    
              DeNovellis also argues another theory to circumvent
    
    Landgraf:   that the  pre-Act sham  assignment constituted  a
                        
    
    continuing   violation   through  its   continuing   effects.
    
    Although the assignment itself was a discrete action that was
    
    over  and  done  with before  November  21,  1991, DeNovellis
    
    emphasizes  that  its  effects  continued  into  the post-Act
                                              
    
    period.  According to DeNovellis, these post-Act effects turn
    
    the pre-Act discrimination into  a continuing violation  that
    
    continued  post-Act,   thereby  triggering  the   1991  Act's
    
    remedies.   But continuing effects, without  additional post-
    
    Act  discriminatory actions, do  not turn a  discrete pre-Act
    
    decision into  a continuing violation.  See United Air Lines,
                                                                             
    
    Inc. v. Evans, 
    431 U.S. 553
    , 558 (1977).
                             
    
              At one time,  it was thought that  this "continuing
    
    effects" theory described  a viable third type  of continuing
    
    violation   case,  in   addition  to   systemic  and   serial
    
    violations.  But the  Court has made it clear that  the focus
    
    of the  inquiry in continuing  violation cases  should be  on
    
    "whether any present violation exists," not whether there are
    
    residual  effects of past discriminatory conduct to which the
    
                                 -22-
                                              22
    
    
    statute does not  apply.  Id. (holding that  a discriminatory
                                             
    
    act, not  merely the  effects of  a past  discriminatory act,
                                                        
    
    must occur within the statute of limitations period of  Title
    
    VII); see Delaware State College  v. Ricks, 
    449 U.S. 250
    , 258
                                                          
    
    (1980); Sabree,  921 F.2d  at 400.   "[A] court  evaluating a
                              
    
    'continuing violation'  argument must  distinguish between  a
    
    continuing violation and  the continuing effects of  a prior,
    
    yet discrete  and no  longer existent,  discriminatory act."5
    
    Cajigas v. Banco de Ponce, 
    741 F.2d 464
    , 469 (1st Cir. 1984);
                                         
    
    see Pilgrim,  slip op. at  9; Kassaye v. Bryant  College, 
    999 F.2d 603
    , 606 (1st Cir. 1993). 
    
              We  recently rejected a plaintiff's theory that the
    
    failure to restore her to her prior position formed part of a
    
    continuous  chain of  misconduct  extending  beyond the  time
    
    deadline.   Morrison, 108  F.3d at  443.   We  held that  the
                                    
    
    employer's "inaction [was]  not enough."  Id.   We pointed to
                                                             
    
                        
                                    
    
    5.  We  note that  this  is  a rule  governing  what kind  of
    conduct creates liability, not a rule of evidence.  Past acts
    of discrimination may constitute relevant background evidence
    and therefore  may be  admissible at trial.   See  Evans, 431
                                                                        
    U.S. at 558; Sabree, 921 F.2d at 400 n.9, 402. 
                                   
    
              Moreover,  although not  considered in  determining
    liability, the  continuing effects of  discriminatory conduct
    are  considered at  the relief stage  if liability  is found.
    "The objective of  fashioning an appropriate remedy  in Title
    VII cases is  to formulate the most  complete relief possible
    to eliminate  the effects  of discrimination."   Sabree,  921
                                                                       
    F.2d at 401 (internal quotation marks omitted); see Albemarle
                                                                             
    Paper  Co. v.  Moody, 
    422 U.S. 405
    , 418-21  (1975) (To  the
                                    
    extent  consistent   with  statutory   limitations,  once   a
    violation of  Title VII has  been found, it is  important for
    courts to fashion "make whole" relief.). 
    
                                 -23-
                                              23
    
    
    what we had said in a somewhat analogous situation:  "'it was
    
    incumbent  upon [the plaintiff]  to allege facts  giving some
    
    indication  that the later  refusals were themselves separate
    
    . . .  violations.'"   Valles  Velazquez,  736  F.2d  at  833
                                                        
    
    (quoting Goldman v. Sears, Roebuck & Co., 
    607 F.2d 1014
    , 1018
                                                        
    
    (1st Cir. 1979)).  The  same reasoning applies to the instant
    
    case.   Even  though DeNovellis's  sham detail  had not  been
    
    remedied by the  time the Act became effective,  the focus at
    
    the liability stage  of our inquiry is the  date the employer
    
    made the  allegedly  discriminatory decision  to detail  him,
    
    even though the decision's effects still persisted after that
    
    effective date.  See De Leon Otero v. Rubero, 
    820 F.2d 18
    , 20
                                                            
    
    (1st Cir. 1987) (Defendants'  refusal to reinstate  plaintiff
    
    "was  not a  separate  act of  discrimination,  but rather  a
    
    consequence of his initial demotion."); Valles Velasquez, 736
                                                                        
    
    F.2d  at  833  (demotion  followed  by  defendant's  repeated
    
    refusals   to  reinstate  plaintiff   did  not  constitute  a
    
    continuing violation);  Goldman, 607 F.2d  at 1018-19 (denial
                                               
    
    of requests to  be retransferred back to  original department
    
    after  allegedly  discriminatory  initial  transfer  did  not
    
    constitute  a  continuing  violation).     We  conclude  that
    
    DeNovellis's   continuing   effects   argument   is   legally
    
    insufficient.
    
                     C.  Hostile Work Environment
                                                             
    
                                 -24-
                                              24
    
    
              As his  final salvo  against the  Landgraf bulwark,
                                                                    
    
    DeNovellis  argues a theory of hostile work environment which
    
    would constitute  a continuing violation of Title  VII.6  See
                                                                             
    
    Mills v.  Amoco Performance Prods.,  Inc., 872 F.  Supp. 975,
                                                         
    
    986 (S.D. Ga. 1994) (A "hostile environment sexual harassment
    
    claim is  an archetypal  continuing violation  claim.").   He
    
    cites  cases involving  sexual harassment  where courts  have
    
    concluded  that  the  allegations   "were  not  discrete  and
    
    independent acts of  sexual harassment .  . . but  additional
    
    components of  one cause  of action for  an alleged  sexually
    
    hostile  environment."   Mills,  872 F.  Supp. at  985.    "A
                                              
    
    hostile environment claim is a single cause of action  rather
    
    than  a sum total of a number  of mutually distinct causes of
    
                        
                                    
    
    6.  The government  argues that DeNovellis cannot  raise this
    hostile work environment  argument here because he  failed to
    allege  it in  his  complaint.   That  view misconstrues  the
    purpose  of the complaint  in federal litigation.   Under the
    concept  of notice  pleading, a  complaint  need not  clearly
    articulate  the  precise  legal   theories  upon  which   the
    plaintiff bases  his right to  recovery.  The  complaint must
    simply  "'give  the   defendant  fair  notice  of   what  the
    plaintiff's  claim is and the grounds  upon which it rests.'"
    Baldwin County Welcome  Ctr. v. Brown, 
    466 U.S. 147
    , 150 n.3
                                                     
    (1984) (quoting Conley  v. Gibson, 
    355 U.S. 41
    , 47  (1957)).
                                                 
    The plaintiff in the present case made clear in his complaint
    the  types of adverse  action he  was alleging  (sham detail,
    derogatory comments), and set forth the  discriminatory basis
    that he  claimed for  those actions  (race, national  origin,
    age), in  violation of Title VII and the  ADEA.  As for legal
    theories, he then put his continuing hostile work environment
    theory  before the district  court when the  court considered
    the  defendant's motion  for summary  judgment  (albeit in  a
    reply brief).  That is  sufficient to enable the plaintiff to
    argue that theory  on appeal.  Cajigas v. Banco de Ponce, 
    741 F.2d 464
    , 468 n.12 (1st Cir. 1984).
    
                                 -25-
                                              25
    
    
    action to  be  judged each  on  its own  merits."   Vance  v.
                                                                         
    
    Southern Bell Tel. & Tel. Co., 
    863 F.2d 1503
    , 1511 (11th Cir.
                                             
    
    1989).  The  Mills court therefore  allowed the plaintiff  to
                                  
    
    seek  recovery of compensatory  and punitive damages  for any
    
    post-Act conduct amounting  to sexual harassment  under Title
    
    VII.  Id.  
                         
    
              Although  DeNovellis does  not discuss  them, other
    
    courts have  allowed Title  VII claims  for harassment  other
    
    than  sexual  harassment.   See  Lattimore, 99  F.3d  at 463;
                                                          
    
    Lindemann & Grossman, supra, at 749-54.  Indeed, until recent
                                           
    
    years, one of  the most common forms of  harassment claim was
    
    verbal  abuse,  such as  racial  epithets.   See  Lindemann &
                                                                
    
    Grossman,  supra, at 749-54.  Harassment may also  consist of
                                
    
    pranks and other forms of hazing, even without  racial slurs,
    
    although, in such  cases, "courts look especially  closely to
    
    see  whether the conduct  is in  fact racially  [or otherwise
    
    invidiously] motivated."  Id. at 753. 
                                             
    
              Not  all   offensive  conduct   is  actionable   as
    
    harassment; trivial  offenses do  not suffice.   See  Meritor
                                                                             
    
    Sav. Bank v. Vinson, 
    477 U.S. 57
    , 67 (1986).  The Court  has
                                   
    
    ruled  that, in  order to  establish  a Title  VII claim  for
    
    sexual  harassment under  a hostile  environment theory,  the
    
    conduct must be  "'sufficiently severe or pervasive  to alter
    
    the  conditions  of  the victim's  employment  and  create an
    
    abusive  [or  hostile]  working  environment.'"    Harris  v.
                                                                         
    
                                 -26-
                                              26
    
    
    Forklift  Sys., Inc.,  
    510 U.S. 17
    ,  21 (1993)  (quoting Los
                                                                             
    
    Angeles Dep't of Water  & Power v. Manhart, 
    435 U.S. 702
    , 707
                                                          
    
    n. 13  (1978)); see Vinson,  477 U.S. at 67;  Carleton Woolen
                                                                             
    
    Mills, 108 F.3d at 439.
                     
    
              In determining  whether harassment  on  the job  is
    
    sufficiently severe  or pervasive to  rise to the level  of a
    
    Title VII  violation, courts look  to the gravity as  well as
    
    the frequency  of the offensive  conduct.  See,  e.g., Vance,
                                                                            
    
    863 F.2d at 1510-11  (noose hanging from light  fixture above
    
    employee's work  station  twice was  sufficient to  establish
    
    harassment  violation).   Guidelines  published by  the Equal
    
    Employment Opportunity Commission (EEOC)  require that sexual
    
    harassment be severe  enough to alter the  victim's workplace
    
    experience  (even  if  the  conduct  only  occurs  once),  or
    
    pervasive  enough to  become  a  defining  condition  of  the
    
    workplace.  EEOC Policy Guidance on Sexual  Harassment, 8 FEP
    
    Man. at  405:6689; see Lindemann  & Grossman, supra,  at 794.
                                                                   
    
    Sexual harassment can  be severe  enough to  be illegal  even
    
    without  tangible effects on job performance or psychological
    
    well-being.  Harris, 510 U.S. at 22. 
                                   
    
              DeNovellis's  reliance on  sexual harassment  cases
    
    such as  Mills is  misplaced because  the situations  are not
                              
    
    analogous.  Mills and other sexual harassment cases involve a
                                 
    
    pervasive  and  continuing  hostile  work environment,  which
    
    constitutes  a  continuing  violation,  akin  to  a  systemic
    
                                 -27-
                                              27
    
    
    (continuing practice)  violation.  In  contrast, DeNovellis's
    
    allegations  of  "purgatory" job  assignments  set  forth, at
    
    best,  allegations as to  discrete and independent employment
    
    decisions,  however adverse.   Such claims are  not pervasive
    
    enough  to  be  considered as  one  continuous  imposition of
    
    hostile  work  environment, analogous  to  sexual harassment.
    
    Nor  is  a  "purgatory"  assignment  sufficiently  severe  to
    
    constitute,  by itself,  a  hostile  work  environment.    As
    
    previously noted, the fact that  DeNovellis remained assigned
    
    to  "purgatory" cannot constitute  a post-Act violation, even
    
    though the effects of that assignment decision were prolonged
    
    into the post-Act period by the bureaucratic delays emanating
    
    from the  agency's reorganization.   See  Evans, 431  U.S. at
                                                               
    
    558; see Part III.A., supra.
                                           
    
              DeNovellis correctly points out that the court must
    
    focus on the work atmosphere as a whole, and not separate out
    
    each  demeaning  work  assignment  or  derogatory remark  for
    
    individual   analysis.    See   Vance,  863  F.2d   at  1510.
                                                     
    
    Nevertheless,  the  question is  whether  he produced  enough
    
    evidence on  the entire summary  judgment record to  enable a
    
    reasonable  trier  of  fact  to  find  a  cognizable  hostile
    
    environment claim.  We agree  with the district court that he
    
    did not. 
    
              Williams and  others  at HHS  apparently made  some
    
    scattered  comments  that  could  be  construed  as  evincing
    
                                 -28-
                                              28
    
    
    racial,  ethnic, or age-based hostility, although some of the
    
    comments   in  the  record  were  not  made  in  DeNovellis's
    
    presence.  DeNovellis does not argue that these comments were
    
    severe  or pervasive, nor does he claim that they rise to the
    
    level of sufficiency necessary to make out a prima facie case
    
    of harassment.  Rather, he appears to offer them as probative
    
    of discriminatory motive underlying his job assignments.
    
              The  major  aspect  of his  work  environment  that
    
    DeNovellis  claims was  hostile or  "harassing"  was his  so-
    
    called "employment purgatory" of job assignments to positions
    
    he considered to be unfit for his level of qualification.  As
    
    already  noted, the  "hostile"  aspect  of  remaining  in  an
    
    undesirable  job  assignment  is  not  akin  to  a  pervasive
    
    environment  claim; it  is  a  discrete employment  decision,
    
    however adverse it may  be.  Even when this  is combined with
    
    the derogatory comments, we do not think a fact-finder, based
    
    on  this record, could  reasonably conclude that DeNovellis's
    
    work environment was so pervaded with  racial, ethnic, or age
    
    discrimination  so as to constitute a violation of Title VII.
    
              That DeNovellis would  be left without a  remedy if
    
    we affirm  the district court's decision is  not a sufficient
    
    reason to  warrant reversal.   The Court in Landgraf  was not
                                                                    
    
    moved  by petitioner's argument  there that, "if  she [could]
    
    not obtain damages pursuant to [the 1991 Act], she [would] be
    
    left  remediless despite an  adjudged violation of  her right
    
                                 -29-
                                              29
    
    
    under Title VII to be free of workplace discrimination."  511
    
    U.S. at 285  n.38.  As the  Court put it, Title  VII "did not
    
    create   a   'general   right   to   sue'    for   employment
    
    discrimination, but instead specified a set of 'circumscribed
    
    remedies,'"  and "[u]ntil the  1991 amendment, the  Title VII
    
    scheme did not allow for damages.  We are not free to fashion
    
    remedies  that  Congress  has   specifically  chosen  not  to
    
    extend."  Id. (quoting United  States v. Burke, 
    504 U.S. 229
    ,
                                                              
    
    240 (1992)).   DeNovellis's lack  of a remedy (even  if there
    
    were a violation) is a result of the way Congress had drafted
    
    Title VII  prior to the  1991 Act; whatever  unfairness arose
    
    from that  limited remedial  scheme  affected all  plaintiffs
    
    suing under it.  
    
                                 IV.
    
                Exhaustion of Administrative Remedies
                                                                 
    
              DeNovellis argues that the district  court erred in
    
    dismissing his post-detail deprivation of duties  and hostile
    
    environment  claims   because  he  failed   to  exhaust   his
    
    administrative   remedies.     DeNovellis  misconstrues   the
    
    district court's decision.   The court did  not grant summary
    
    judgment   against  him  based  on  his  failure  to  exhaust
    
    administrative  remedies.    With  respect  to  the  post-Act
    
    deprivation  of  duties  the district  court  stated  that "a
    
    strong argument" could be made  that he has not exhausted his
    
    Title  VII claim,  but the  court did  not decide  the issue.
    
                                 -30-
                                              30
    
    
    Moreover, with respect to his claim under the ADEA, the court
    
    noted  that  the   government  had   waived  any   exhaustion
    
    argument.7     The  district   court  decided   the  post-Act
    
    deprivation  of duties  claim on  the  basis that  DeNovellis
    
    failed   to  produce   evidence  to   support   a  claim   of
    
    discrimination, sufficient to withstand summary judgment.
    
              The  district court  rejected DeNovellis's  hostile
    
    work  environment claim  based on  the same reasoning  as the
    
    pre-Act deprivation of duties (a possible wrong but without a
    
    remedy).   The court  added one sentence  stating failure  to
    
    exhaust  as an alternative  ground for rejecting  this claim,
    
    but we need not address that here because we affirm based  on
    
    DeNovellis's failure to  demonstrate a genuine issue  as to a
    
    severe or pervasive hostile environment.   
    
              Thus,  we  need not  reach  DeNovellis's exhaustion
    
    argument  because  we  uphold  the district  court's  summary
    
    judgment ruling  as to Title  VII and the  ADEA based  on its
    
    reasons other than exhaustion.  
    
                        
                                    
    
    7.  The  government takes the position that the ADEA does not
    require  a  federal employee  to  exhaust his  administrative
    remedies.  The  Supreme Court has held,  in the context of  a
    private   employer,   that   "filing  a   timely   charge  of
    discrimination   with  the  EEOC   is  not  a  jurisdictional
    prerequisite  to suit  in federal  court,  but a  requirement
    that, like  a statute of  limitations, is subject  to waiver,
    estoppel,  and  equitable  tolling."   Zipes  v.  Trans World
                                                                             
    Airlines, Inc.,  
    455 U.S. 385
    ,  393 (1982).   Quite  possibly
                              
    Zipes should  apply as  well when a  federal employee  sues a
                     
    federal agency, see Rennie v. Garrett, 
    896 F.2d 1057
    , 1059-60
                                                     
    (7th Cir.  1990) (citing cases);  but we need not  decide the
    point definitively in the present case.
    
                                 -31-
                                              31
    
    
                                 -32-
                                              32
    
    
                                  V.
    
                Declaratory Relief and Attorney's Fees
                                                                  
    
              Finally, DeNovellis argues that  the district court
    
    should  have awarded  him  declaratory relief  and attorney's
    
    fees.  His  reasoning, however, is based on  a false premise.
    
    DeNovellis asserts that the district court 
    
              ruled as a matter of law that DeNovellis'
              "five-month  assignment  to  a  financial
              position for  which he had  no background
              was not  only a  set-up  for failure  but
              also   an   adverse   employment  action"
              motivated by illegal discrimination based
              upon age, race or ethnicity.
    
    The  internal quotations  accurately  reproduce the  district
    
    court's conclusion as  to the legal  question of whether  the
    
    sham  assignment  constituted  an adverse  employment  action
    
    within the meaning  of Title VII and the  ADEA.  DeNovellis's
    
    assertion    after   the    internal   quotation,    however,
    
    misrepresents what the district court found.  
    
              The  court  held  that  DeNovellis  had   presented
    
    sufficient evidence on the intent issue  to survive a summary
    
    judgment motion as to his pre-Act deprivation of duties.  The
    
    court  did  not  make  a conclusive  factual  finding  as  to
    
    discriminatory intent; that question would be resolved by the
    
    trier of fact if the matter went to trial.  The court granted
    
    the Secretary's motion for summary judgment because the court
    
    found that DeNovellis would not  be entitled to a remedy even
    
    if the case  went to trial and  he were able to  persuade the
    
                                 -33-
                                              33
    
    
    trier   of  fact  that  the  defendant  was  motivated  by  a
    
    discriminatory intent.
    
              The difference between what the court actually held
    
    and what DeNovellis  claims it held is fatal  to his argument
    
    that  the court  was  obligated to  award  him a  declaratory
    
    judgment and attorney's fees.8  If DeNovellis were correct in
    
    his characterization of  the posture of the case  -- that the
    
    district   court  had  already  made  a  factual  finding  of
    
    discriminatory  intent --  then the  court  would still  have
    
    discretion  as to whether  to grant declaratory  relief after
    
    finding  discrimination  at   trial.    But  at   least  then
    
    DeNovellis  might be  able to persuade  us that  the district
    
    court abused its discretion in denying him declaratory relief
    
    and fees.  
    
              The Declaratory  Judgment Act is "an  enabling Act,
    
    which confers  a  discretion on  the  courts rather  than  an
    
    absolute   right  upon  the   litigant";  courts  have  broad
    
    discretion  to  decline  to  enter  a  declaratory  judgment.
    
    Wilton v. Seven Falls Co.,  
    515 U.S. 277
    , 287 (1995) (quoting
                                         
    
    Public Serv. Comm'n of Utah v. Wycoff Co., 
    344 U.S. 237
    , 241
                                                         
    
    (1952)).  "By  the Declaratory Judgment Act,  Congress sought
    
                        
                                    
    
    8.  Although  his  complaint  did   not  seek  a  declaratory
    judgment,  DeNovellis argues that the court had the authority
    to award such relief under his final prayer for relief, which
    sought  "such other  and further  relief as  may be  just and
    proper."   He  is correct  on this  point, but we  reject his
    declaratory judgment argument on other grounds.
    
                                 -34-
                                              34
    
    
    to place a remedial arrow  in the district court's quiver; it
    
    created an  opportunity, rather than  a duty, to grant  a new
    
    form of relief to qualifying litigants.  Consistent with  the
    
    nonobligatory  nature  of  the remedy,  a  district  court is
    
    authorized, in the sound exercise of its discretion, . . . to
    
    dismiss  an action  seeking  a  declaratory  judgment  before
    
    trial."  Wilton,  515 U.S. at 288.   Although "federal courts
                               
    
    have  a 'virtually  unflagging  obligation'  to exercise  the
    
    jurisdiction conferred on them by Congress," a district court
    
    may "nonetheless abstain from the assumption  of jurisdiction
    
    over a suit  in 'exceptional' circumstances" such  as where a
    
    declaratory judgment is  sought regarding an  issue currently
    
    pending in a  state court  action.  Wilton,  515 U.S. at  284
                                                          
    
    (quoting Colorado  River Water  Conservation Dist.  v. United
                                                                             
    
    States, 
    424 U.S. 800
    , 813, 817-18, 818-20 (1976)).   "In the
                      
    
    declaratory  judgment  context,  the  normal  principle  that
    
    federal  courts   should  adjudicate   claims  within   their
    
    jurisdiction  yields  to considerations  of  practicality and
    
    wise judicial administration."  Wilton, 515 U.S. at 288.  But
                                                                             
    
    see  Steffel v.  Thompson, 
    415 U.S. 452
    ,  468 (1974)  ("'[A]
                                         
    
    federal  district   court  has   the  duty   to  decide   the
    
    appropriateness  and the  merits of  the declaratory  request
    
    irrespective of  its conclusion as  to the  propriety of  the
    
    issuance of [a requested] injunction.'") (quoting Zwickler v.
                                                                          
    
    Koota, 
    389 U.S. 241
    , 254  (1967)); Frankfurter & Landis,  The
                                                                             
    
                                 -35-
                                              35
    
    
    Business of  the  Supreme  Court:  A  Study  of  the  Federal
                                                                             
    
    Judicial System 65  (The federal courts are  "the primary and
                               
    
    powerful reliances for  vindicating every right given  by the
    
    Constitution, the laws, and treaties of the United States.").
    
              The standard of  appellate review of a  decision as
    
    to  declaratory relief is  whether the district  court abused
    
    its  discretion.   Wilton, 515  U.S. at  289.   Thus,  if the
                                         
    
    district  court  actually  found  discriminatory  intent   in
    
    DeNovellis's deprivation  of duties,  we might  or might  not
    
    find that the denial of a  declaration to that effect was  an
    
    abuse  of  discretion.   Cf.  Metropolitan  Stevedore  Co. v.
                                                                          
    
    Rambo, 
    117 S. Ct. 1953
     (1997) (nominal  damages permitted in
                     
    
    Longshore  and Harbor Workers' Compensation Act case in order
    
    to preserve right to receive future benefits).
    
              Because the district court  found that the question
    
    of  discriminatory  intent  was  a   triable  issue,  without
    
    reaching  any conclusion as  to whether such  intent actually
    
    existed, our review of its denial of declaratory relief is in
    
    a  different posture.   The  court  faced the  possibility of
    
    conducting  a trial  in this  case,  assessing arguments  and
    
    counter-arguments  as  to  what people  intended  by  certain
    
    statements  or  actions,  with no  opportunity  to  award any
    
    relief to DeNovellis that would remedy the harm  he allegedly
    
    suffered.   After trial,  the court  might possibly have  the
    
    authority  to enter  a declaration  that some  or all  of the
    
                                 -36-
                                              36
    
    
    defendant's    now-terminated    employment    actions   were
    
    discriminatory.    In  the circumstances  of  this  case, the
    
    district  court's decision  -- prior to  trial --  to refrain
    
    from such a  fruitless endeavor was within  its discretionary
    
    power.  See Wilton, 515 U.S. at 288.
                                  
    
              Because  DeNovellis   has  no   entitlement  to   a
    
    declaratory  judgment and because we have affirmed the denial
    
    of other  relief, he has  not prevailed  on any issue  in the
    
    case and attorney's fees may not be awarded.  See 42 U.S.C.  
                                                                 
    
    1988;  Texas  State  Teachers Ass'n  v.  Garland  Indep. Sch.
                                                                             
    
    Dist.,  
    489 U.S. 782
    ,  791-92   (1989)  (A  litigant  is  a
                     
    
    prevailing party  if he  "has succeeded  on 'any  significant
    
    issue in litigation which achieve[d]  some of the benefit the
    
    parties sought in bringing  suit.'") (alteration in original)
    
    (quoting  Nadeau v. Helgemoe, 
    581 F.2d 275
    , 278-79 (1st Cir.
                                            
    
    1978)).
    
                              Conclusion
                                                    
    
              Title  VII  and our  other  antidiscrimination laws
    
    serve essential societal goals.  See Aikens, 460 U.S. at 716.
                                                           
    
    If America stands  for anything in the world,  it is fairness
    
    to all, without regard to race, sex, ethnicity, age, or other
    
    immutable characteristics that  a person does not  choose and
    
    cannot change.   We have  recently had occasion to  note that
    
    "Title VII is one  of the brightest stars in the firmament of
    
    this   nation's  antidiscrimination   laws."     Serapion  v.
                                                                         
    
                                 -37-
                                              37
    
    
    Martinez,     F.3d    ,    , 
    1997 WL 394605
    , at *2 (1st  Cir.
                        
    
    July 18, 1997).  
    
              The  standards  for  summary  judgment  are  highly
    
    favorable to the party opposing  such a motion, and issues of
    
    motive  often present fair factual disputes properly resolved
    
    by a factfinder  after trial.  Nevertheless, in this instance
    
    the  dearth  of  evidence  is simply  too  great  and summary
    
    judgment was properly granted.
    
              The judgment of the district court is Affirmed.
                                                                Affirmed
                                                                        
    
                                 -38-
                                              38