Thomas WELSH, Plaintiff, Appellant, v. Edward J. DERWINSKI, Secretary of Veterans Affairs, Defendant, Appellee

Jan 18, 1994
93-1410
Versions:14 F.3d 85
63 Empl. Prac. Dec. (CCH) 42,781
63 Fair Empl. Prac. Cas. (BNA) 1097
1994 U.S. App. LEXIS 847
1994 WL 6202
PER CURIAM.

In this appeal, plaintiff-appellant Thomas Welsh challenges the district court’s determination that he had not suffered retaliation actionable under the Age Discrimination in Employment Act (“ADEA”). We affirm.

In 1987, plaintiff became coordinator of the Brockton-West Roxbury Veterans Administration Medical Center’s (‘VA Medical Center’s”) Key Club, an outpatient recreational therapy program. His job classification at that time was General Service (“GS”) level 6. In February 1989, believing that he was per forming duties above the level of GS-6, plaintiff sought an upgrade of his job classification by requesting a “desk audit.” 1 The audit was not performed until May 1989.

Meanwhile, in March 1989, maintaining that he was being denied an upgrade because of age and disability discrimination 2 , plaintiff filed аn informal complaint with the Equal ‍​​​​​​‌‌​‌‌‌​‌‌​‌​​​​​‌‌‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​‌‌‍Employment Opportunity Commission (“EEOC”). 3 Plaintiff asserts that, as a result of his filing this complaint, he suffered' thе following forms of retaliation: (1) an unpleasant discussion with his supervisor regarding the filing of the complaint; (2) a reassignment from the Key Club position to a job working in an inpatient setting; (3) an unfounded accusation by his supervisor that he had misapprоpriated funds in connection with a Key Club Thanksgiving dinner; (4) a reprimand from his supervisor for a previously approved absеnce from an awards dinner; and (5) a reduction in duties prior to the desk audit, thus eliminating the potential of a status upgradе. These five incidents formed the basis for his retaliation claim.

In addition to granting summary judgment on plaintiff’s non-retaliation discrimination claims, see supra note 3, the district court also ruled, at the summary judgment stage, that the first four of the above-named incidents did not givе rise to a retaliation claim under the ADEA. However, the court found that the issue of whether the reduction in plaintiffs duties рrior to the desk audit violated the ADEA’s retaliation provision, 29 U.S.C. § 623(d), 4 was triable.

We consider only this last claim to be raised. 5 Defendant Secretary argues that a reduction in duties could not be an “adverse employment action” giving rise to a claim under Section 623(d) under Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir.), cert. denied, — U.S. -, 111 S.Ct. 2828, 115 L.Ed.2d 997 (1991). There, applying the rule that where therе is no direct ‍​​​​​​‌‌​‌‌‌​‌‌​‌​​​​​‌‌‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​‌‌‍evidence of retaliation, a plaintiff must demonstrate, inter alia, that s/he suffered an “adverse employment action” in order to make out a prima facie showing of retaliation, we said, with respect to that phrase, “Most cases involving a retaliation claim are based on an employment action which has an adverse impact on the employee, i.e., discharge, demotion, or failure to promote.” 924 F.2d at 1179.

The Secretary points to the letters “i.e.” and reads into them a ruling that only discharge, demotion, or failure to promote can constitute an adverse employment action within the Act. We do not agree. Concededly, not every unpleasant matter short оf those listed in Connell, supra creates a cause of action, but many things, such as constant rudeness, conspicuous discriminatory аcts, etc., could have an adverse effect upon employment. Within reasonable limits, in order to arrive at а determination, a case by case review is necessary. With respect, we take the court’s “i.e.” as an inadvertency for “e.g.”, or, at most, dictum far beyond the opinion that, after consideration, we feel we do not have to recognize. We say this fully realizing that, as newly constituted panels we are normally bound by prior panel decisions on point. E.g., Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir.1993). Further support for our reading of Connell, appears from that panel’s reference to “most cases” and to reliance upon prеcedent ‍​​​​​​‌‌​‌‌‌​‌‌​‌​​​​​‌‌‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​‌‌‍pointing to incidents beyond mere “discharge, demotion, or failure to promote.”

The fact, however, that the action taken in this case could survive a motion for summary judgment does not mean that the court could not thеreafter weigh it. Plaintiff’s complaint was that the reduction in his duties meant that he would not be eligible for an upgrade in his status. As tо this claim, the court made a finding, not here challenged, that plaintiff would not have received such an upgrade in аny event. On this basis the court’s finding that plaintiff failed to make a prima facie showing of adverse employment actiоn must stand. And, as we have made clear, plaintiff cannot make out a prima facie case of retaliation without showing such adverse action. See Connell, 924 F.2d at 1179.

Accordingly, we affirm the court’s entry of judgment against plaintiff on his retaliation claim. 6

Notes

1

. In a desk audit, a Personnel Specialist interviews the employee and his/her supervisor and determines (1) whether the emрloyee's job description accurately depicts the work performed by the employee, and (2) whether thе job is classified at the proper GS level.

2

. Plaintiff has a heart condition and is a recovering alcoholic.

3

. The charges in plaintiff's informal complaint formed the basis for a formal EEOC complaint filed by plaintiff in June 1989, and for plaintiff's nоn-retaliation discrimination ‍​​​​​​‌‌​‌‌‌​‌‌​‌​​​​​‌‌‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​‌‌‍claims in the instant lawsuit. The district court granted defendant summary judgment on these claims in June 1991. Plaintiff doеs not appeal from this ruling.

4

. In pertinent part, 29 U.S.C. § 623(d) provides: It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has opposed any practice made unlawful by [the ADEA], or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA],

5

.Plaintiff also generally contends, without explanation, that, "unlike the plaintiff in Connell," hе was harmed by the other alleged instances of retaliation cited above. We have repeatedly warned litigants that issues adverted to in a perfunctory manner and without developed argumentation are deemed waivеd on appeal. E.g., United States v. Innamorati, 996 F.2d 456, 468 (1st Cir.1993). Here, plaintiff's attempts to distinguish Connell with regard to the other alleged instances of discrimination ‍​​​​​​‌‌​‌‌‌​‌‌​‌​​​​​‌‌‌​​​‌​‌‌‌‌​​‌‌​‌‌​​​‌​‌‌‍arе perfunctory. Accordingly, we regard them as waived.

6

. Because we affirm the court's ruling that plaintiff did not make out a prima facie case of retaliation, we need not reach plaintiff's challenge to the district court’s alternative finding regarding pretext.