USCA1 Opinion

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 appellan
______________
__________

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,
BOWNES,

Senior Circuit
Senior Circuit

Judge.
Judge.

Plaintiff Vincent

_____________________

DeNovellis

brought

discrimination

1964,

42

this

action

under Title

U.S.C.

VII of the

2000e

et seq.,
________

alleging

Civil Rights

and

Discrimination

in Employment Act (ADEA), 29

seq.,
____

his

States

against

employer, the

Department of Health

Secretary

and Human

employment

under

the

U.S.C.

of

Act of

Age

621 et
__

the United

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.

judgment to the defendant.

The district court granted summary

We affirm.

I.

A. Facts
_____

Viewed in the light most favorable to the nonmoving

party (DeNovellis) and

his favor,

drawing all reasonable inferences

in

the following facts are treated as undisputed for

purposes of the motion for summary judgment.

white male of Italian descent.

DeNovellis is a

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

DeNovellis's

reorganization

position

(HDS), which

was

that occurred in

eliminated

was

in

the spring of

part of

HHS.

an

agency

1991.

After

-22

some

to

months "in limbo," in the form of temporary assignments

"meaningless" positions,

DeNovellis

became the

program

manager of the Aid to Families with Dependent Children (AFDC)

program

within

the

Children

and

Families

remained the same:

recently

(ACF).

GS-14.

formed

His

Administration

civil

service

for

grade

Until the reorganization,

A.

Kenton Williams, was

HDS.

office.

racism

was filed.

Williams

that

DeNovellis,

exists

(RA) of

There were

often spoke

in

our

out

against the

society,"

black staff persons, who having

over

the

certain circumstances."

editor

racial tensions

and,

in the

"insidious

according

to

"would try to justify the behavior and reactions

discrimination

of the

inequities

years,

been subjected to racial

reacted differently

Williams also wrote a

Boston Globe
____________

pressures" faced by

the

the Regional Administrator

Williams was a black male of the age of fifty-five when

this action

of

DeNovellis's supervisor,

commenting

black executives.

suffered

by

blacks

letter to the

on the

These

made

under

"tremendous

comments about

DeNovellis

feel

uncomfortable.

There were

around the

also ethnic

office that

Williams condoned.

staff would say things like

people (Mafia) in

and race-related

the North

comments

Members

of the

"Vinnie, why don't you have your

End take care

of them."

North End is a largely Italian neighborhood of Boston.)

-33

(The

Both

Williams and a black friend

negative comments about

of his, St. Clair Phillips, made

DeNovellis's ethnicity.

And

staff

members made general references to "you whites" in Williams's

presence.

Williams

conflicts.

charge

Williams

Part

and

of DeNovellis's

of the regional

was

DeNovellis

often

also

job

had

as DRA

activities during the

absent

from

concerned that DeNovellis was signing

the

office

work-related

was to

take

RA's absence.

and

became

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

Coughlin,

supervisor

who was white,

in

Washington,

told Williams that

spreading negative comments about Williams.

occasion, Williams also

that DeNovellis

such incident

other people in

pertained to

another concerned

DeNovellis was

On more than one

had to intervene in

had with

heated disputes

the office.

the distribution

whether a

Pamela

One

of space,

and

(who did

not

minority student

report to DeNovellis) had been absent from work.

In 1990,

opportunity

eligible

to

certain federal employees were

choose

early

to retire but rejected

retirement.

the offer.

given the

DeNovellis

was

Several people,

-44

including

Williams and

two

of

his

black

friends,

urged

DeNovellis to take this opportunity and retire.

The

assignment

to

heart

of

DeNovellis's

temporary

"detail"

complaint

to

is

an

an "unestablished

position" in the Office of Fiscal Operations (OFO) in October

1990.

Williams

claims

he was

instructed

to

order

this

reassignment

by

Nevertheless,

Williams now

sham," and was

want

Coughlin,

his

(white)

admits that

the

concocted in

DeNovellis to

be

his

Williams removed DeNovellis

supervisor.

detail was

part because

Williams did

deputy.

October 9,

On

from the order of

"a

not

1990,

succession to

act as RA.

DeNovellis suffered no diminution in grade, pay, or

benefits during the detail.

of

Williams's friend,

Officially,

DeNovellis

He worked under

St. Clair

was

activities, for which he had

the

first month

duties under

and a

a new

Phillips,

responsible

the supervision

who was

for

black.

financial

no training or capability.

half, he

supervisor."

"performed the

In

For

same (DRA)

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

Williams refused.

was refusing to perform his old

The detail was due to

DRA duties.

expire in February

1991 but, upon Williams's request, was extended through March

31, 1991.

-55

On

complaint,

March

alleging

discrimination

reassignment.

in

8,

1991,

age,

interviewed Williams,

race,

assignment

On April 11,

DeNovellis

and

of

filed

an

national

duties,

EEO

origin

awards,

and

three days after the EEO officer

Williams filed

forms requesting

that

DeNovellis's position be switched with that of Paul Kelley, a

black

male who

supervisory

was a

friend of

accountant in

OFO.

Williams's

and who

According to

Williams's purpose in making this request

was a

DeNovellis,

was to protect the

grades of Phillips and Kelley, both black and both friends of

his, in

an impending

classification

classification review.

However,

the

review and the proposed "job swap" were never

carried out, overtaken

by the agency's restructuring

in the

spring of 1991.

Around

detail expired

internal

the

same

at the

time

that DeNovellis's

end of March

restructuring.

The former

1991, HHS

HDS

initial

underwent an

and another

sub-

agency of HHS, the Family Support Administration, were merged

into

a new

entity,

Families (ACF).

effectuate.

The

the

Administration

restructuring took

for

Children

several months

and

to

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.

-66

In

April or May 1991, Hugh Galligan, a white male,

was appointed Acting

Regional Administrator of the

he appointed Williams as his Deputy.

longer in charge

new ACF;

By May, Williams was no

of the Boston office.

The appointments of

Galligan and Williams were finalized on August 23, 1991.

Two

days

his

later,

DeNovellis's

position

was

"realigned";

official title

remained

DRA of

HDS

(even though

phasing out) but this was now within the new ACF.

HDS

was

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

position

December

1991

in Washington,

Phillips, who had

the DRA position at

GS-15 and

the new

transfer

Phillips

competitive search.

D.C.

Williams

left

Galligan

Boston

then

for

transferred

been the head of OFO of the new agency, to

the new agency.

Because

Phillips was a

DRA opening was

a GS-15,

Galligan could

laterally

the

Since

into

position without

DeNovellis was a GS-14,

he could

not have been promoted to Williams's former position unless a

job

vacancy announcement

search

performed.

precluded

had been

There is no

from instituting

such

made

and a

evidence that

search and

competitive

Galligan was

considering

DeNovellis for the position.

In May 1992

DeNovellis was reassigned from

the Office of Family Security

DRA of

(OFS) in the new agency, to

-77

supervisory

This

position as

program manager

was not part of the management

DeNovellis

was

the

last person

position in the new agency.

twice

to the

OFO as

restructuring.

the same

OFS.

team of the new agency.

appointed

to

a permanent

Galligan has since detailed him

an assistant

(Thus, in

in

goal leader

for ongoing

some respects, DeNovellis

claims

his job assignments have been inappropriate because they were

beneath

his DRA status

and in other

because

the

required

positions

respects inappropriate

accounting

or

financial

qualifications which he did not possess.)

According

reason for

to

DeNovellis,

the delay in

was a "position

paper" he

at

least

his reassignment in the

wrote in early

1992.

part

of the

new agency

The

paper

pointed out the "convoluted interactions that were going on,"

and

it accidently

was

mailed to

region, creating a furor.

was

responsible

for

lot of

people

in the

Galligan was asked to find out who

this

position

paper.

During

the

investigation, DeNovellis's computer was confiscated.

B.

District Court Proceedings

__________________________

The district court granted

Secretary as to all claims.

summary judgment to the

It dealt separately with each of

the four types of adverse

action alleged by DeNovellis.

court relied

v. USI Film Prods., 511

________________

(1994), to

on Landgraf
________

reject

the Title

VII claim

The

U.S. 244

for deprivation

of

-88

duties

that

effective

prior

to

November

date of the Civil Rights Act

1981a ("the

essentially,

against,

occurred

Act" or "the

that

he was

even

1991 Act").

if

not entitled

1991,

the

of 1991, 42 U.S.C.

The

DeNovellis

to any

21,

court concluded,

was

discriminated

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

would

or

loss

of

job

that

reinstatement (he did not

remedies

back

seek reinstatement).

made available under

compensatory

warrant

the 1991 Act

And

pay

or

the new

(in particular,

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

post-Act

court rejected DeNovellis's

deprivation of

duties

present sufficient evidence

fact

to

conclude

that

on

his

failure

to enable a reasonable

the

deprivation was discriminatory.

indirect

based

employer's

motive

claim of

to

trier of

for

such

Whereas DeNovellis provided

evidence that Williams might have been motivated by

improper reasons

in making pre-Act assignments, Williams was

no longer in charge of the

he left Boston

that

Boston office after May 1991

altogether in December 1991.

and

The court held

DeNovellis could not bootstrap the pre-May 1991 alleged

____________________

1.

The

court also

available under the

concluded that

such

ADEA as a matter of

has not appealed that ruling.

-99

remedies were

not

law, and DeNovellis

discrimination

reasonable

by Williams

into sufficient

evidence for

trier of fact to conclude that post-November 1991

decisions were animated by similar illegal bias.

DeNovellis

environment based

background

also

on

made

negative

coupled with

claim

comments

his "sham

of

hostile

about

his

detail."

The

work

ethnic

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

discrimination

insufficient

had

evidence

occurred.

sentence an alternative

The

ground for its

that

any

court

stated

ruling:

post-Act

in

failure

one

to

exhaust administrative remedies.2

The district court also granted summary judgment to

the Secretary

on DeNovellis's

claim that

his computer

was

complaint.

The

confiscated in retaliation for filing an EEO

court rejected this claim under

DeNovellis

because

failed

his

administrative remedies,

his EEO complaint alleged nothing about retaliation.

The court

rejected the retaliation

merits (the

The court

to exhaust

Title VII on the ground that

government had

concluded that

claim under ADEA

waived exhaustion

DeNovellis failed

as to

on the

ADEA).

to present

any

____________________

2.

DeNovellis also presented

that he

was

denied the

promotion to the

to the district court

opportunity

to be

DRA position in the new

a claim

considered

for

agency (ACF) after

Williams vacated

it in

December 1991.

He does

not pursue

this claim on appeal.

-1010

evidence to establish

a causal connection between

1991 age discrimination

February

1992

complaint against

confiscation

of

his

his March

Williams and

computer by

the

Galligan.

DeNovellis does not appeal this conclusion.

DeNovellis

pursues

three

arguments

on

appeal:

(1) that he

Civil

is entitled

Rights Act of

to the

remedies delineated in

1991 because

deprivation of duties

his pre-Act

were part of one

the

and post-Act

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

environment;

provide him

(3)

that

of duties

the district

with a declaratory

and hostile

court

was

judgment and/or an

work

obliged to

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.

Summary

1996), cert. denied, 117 S.

____________

judgment

depositions,

is

appropriate

answers to

when

Ct. 2510 (1997).

"the

interrogatories, and

file,

together with the affidavits, if

is no

genuine issue

as to

any material

-1111

pleadings,

admissions on

any, show that there

fact and that

the

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

to see whether there is a

Civ.

The

P. 56(e) advisory

moving

party

proof in order

genuine need for trial."

committee's note to

"bears

the

initial

Fed.

R.

1963 Amendment.

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

judgment,

the burden

supported her motion

shifts to

the

for summary

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.

"may

Id. at 322-25.
___

not rest

upon

mere

At this stage, the

allegation

or

nonmoving party

denials

of

[the

movant's] pleading, but must set forth specific facts showing

that there

is a genuine issue"

issue upon which

of material fact as

he would bear the ultimate

to each

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).

-1212

at trial.

Anderson, 477 U.S. at 256;

________

see Celotex, 477 U.S.

___ _______

at 321-23.

Like the

district

court, in

deciding

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

"sufficient

evidence favoring the nonmoving party for a jury

to return

merely

judgment

a verdict

for

colorable or is

may be

that party.

If

element, there is

the evidence

is

not significantly probative, summary

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

upon

conclusory

allegations,

improbable

rests merely

inferences,

and

unsupported speculation," summary judgment may be appropriate

even where

intent is an

Inc.,
____

40 F.3d

11, 12

marks

omitted).

issue.

Smith v.
_____

(1st Cir.

Where, however,

produced more than

issue.

Stepanischen v.
____________

1994) (internal

the

Valles Velazquez,
_________________

quotation

nonmoving party

that, trial courts should

in granting summary judgment" where

in

Stratus Computer,
_________________

has

"use restraint

discriminatory animus is

833;

see
___

Merchants Despatch Transp. Corp., 722

_________________________________

F.2d

-1313

736

F.2d

at

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

correctly found that the

duties.

The

court

five-month assignment of DeNovellis

to a

financial position for

which he had no

the concomitant deprivation of

background and

meaningful duties constituted

an adverse employment action within the meaning of Title VII.

See
___

Blackie v. Maine,
_________________

(holding that

employee,"

75

F.3d 716,

"tak[ing] something

including

725

of

"divesting

(1st Cir.

consequence from

her

of

1996)

the

significant

responsibilities," constitutes an adverse employment action);

see also
________

Collins v.
_______

Illinois, 830 F.2d

________

1987).

The

also found

evidence

in the

court

whether the sham

motivated

record to

that

create a

detail and the

692, 704

there

(7th Cir.

was sufficient

factual dispute

deprivation of duties

as to

were

by illegal discrimination on Williams's part or by

race-neutral

(and therefore

not

violative

of

Title

VII)

personality

although

conflict

DeNovellis

liability for

or

cronyism.

would

have

The

court

triable

pre-Act discrimination, he

held that,

issue

as

had no right

remedy under the law as it existed prior to the 1991 Act.

-1414

to

to a

Prior to enactment of the Civil Rights Act of 1991,

plaintiffs

in

Title

VII cases

remedies (including back

relief).

Landgraf
________

(1994).

The

Act,

were

limited

to equitable

pay, reinstatement, and

v. USI Film Prods.,

________________

which became

injunctive

511 U.S.

effective on

244, 252

November 21,

1991, amended Title VII, and "effect[ed] a major expansion in

the

relief

available

discrimination."

created

of

employment

Landgraf, 511 U.S. at 254-55.

________

The 1991 Act

right

on

intentional unlawful

damages

"for

future

the

to

part

victims

of

discrimination to

pecuniary

suffering, inconvenience, mental

of life, and other nonpecuniary

individuals

alleging

recover compensatory

losses,

emotional

anguish, loss of

pain,

enjoyment

losses," as well as punitive

damages.

42

U.S.C.

1981a(a)(1) &

(b)(3)

Morrison v. Carleton Woolen Mills, Inc.,

________
____________________________

(1st Cir. 1997).

right to a

or

The Act

provisions,

before

42

U.S.C.

however, do not

the effective

see
___

108 F.3d 429,

437

also gave Title VII plaintiffs the

jury trial in cases where

punitive damages.

(1994);

they seek compensatory

1981a(c).

apply to conduct

date of

the Act,

These

new

that occurred

November 21,

1991.

Landgraf, 511 U.S. at 247, 286.

________

Applying Landgraf to the instant case, the district

________

court

concluded that, even

after trial that

if DeNovellis were

his sham detail and

to establish

employment "purgatory"

violated his rights under Title VII, he would not be entitled

-1515

to any

March

remedy.

This is because

1991, prior

Therefore,

even if

to the

the sham

effective date

liability were found

detail ended

of the

in

1991 Act.

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.

remedies for

pre-Act conduct:

no loss of pay, he may

not quit

not

seek

of

because

an injunction

DeNovellis "suffered

seek reinstatement.

enjoining Williams

is no longer

analyzed the

not recover back pay; because he

his job, he does not

no possibility

because he

As the district court

from

future

in the office, and

against

did

There is

details

DeNovellis does

details by

Galligan.

In

short, the five-month detail ending in the spring of 1991, if

based

upon illegal

remedy."

district

As to

court

triable issue as

discrimination, was

the

found

wrong without

post-Act deprivation

insufficient

evidence

to discriminatory intent.

of

duties, the

to

create

DeNovellis does

not directly appeal the latter determination.

Instead, DeNovellis takes

issue with both rulings,

pre-Act

and

post-Act,

DeNovellis argues

violation

by essentially

that he

Act.

applied

the victim

of a

the two.

continuing

that began before November 21, 1991, and continued

thereafter, entitling him

1991

was

conflating

A related

to

other

to compensatory damages under

the

continuing violation argument has been

time

requirements

-1616

imposed

by

the

antidiscrimination laws,4 but the

theory on which DeNovellis

bases his argument is not one that the courts have approved.

We

have

violation cases:

delineated

Cir.

types

systemic and serial.

of Tufts College, 118 F.3d 864,

_________________

(1st

two

1997);

see Barbara
___

Employment Discrimination Law

_______________________________

of

continuing

Pilgrim v. Trustees
_______
________

___, 1997 WL 370286,

Lindemann

&

1351-63 (3d

at *3

Paul Grossman,

ed.

1996).

systemic violation usually "has its roots in a discriminatory

policy or practice; so long

continues into

as the policy or practice itself

the limitation

period, a

challenger may

be

deemed to have filed a timely complaint," even if he fails to

show

"an

identifiable

transpiring within

discrete

the period."

act

of

discrimination

Jensen v. Frank,
______
_____

912 F.2d

517, 523 (1st Cir. 1990).

DeNovellis does not argue that there was a systemic

violation

here.

violation

occurred; (B) that

pre-Act

deprivation

violation;

hostile

Rather,

and (C)

of

he

argues

serial

the continuing effects

of his

duties

that he

work environment.

was

We

(A)

that

constituted

subjected to

will address

continuing

a continuing

each of

these

arguments in turn.

____________________

4.

The issue usually

limitations challenge.

arises in the context of

a statute of

See, e.g., United Airlines, Inc. v.

_________ _________________________

Evans, 431
_____

U.S.

theory could be
Title VII,

553 (1977).

But a

applied to any

whether it be

continuing

violation

time requirement imposed

the effective date of

by

an amending

statute, as here, or a statute of limitations, as in Evans.

_____

-1717

A.

Serial Violation
________________

serial violation

discriminatory acts

"is composed

emanating from

the same

of

a number

of

discriminatory

animus,

each act

under Title

constituting

VII."

Jensen,
______

Atl. & Pac. Tea Co.,

___________________

state

a claim

violation

this

type

have to show

occurred

though the series

id.; Pilgrim,
___ _______

912 F.2d

wrong actionable

at 522; Mack
____

871 F.2d 179, 183 (1st Cir.

under

DeNovellis would

a separate

within the

of

continuing

that at least

relevant

time

v. Great
_____

1989).

violation,

one actionable

period, even

had begun prior to November 21, 1991.

118 F.3d at

___, 1997 WL

To

370286, at *3.

See
___

He

could then be awarded the remedies made available in the 1991

Act.

Cf. Sabree
___ ______

F.2d

396, 401

case, back

v. United Bhd. of Carpenters & Joiners, 921

___________________________________

(1st

pay remedy

Cir. 1990)

(In a

"may be based

continuing violation

on acts

that occurred

prior

to the limitations

period when

a violation

established by an act within the period.").

therefore,

whether

DeNovellis's

duties constituted one

VII.

to

To show an

satisfy

We

post-Act

1996).

Of

v.

ask,

deprivation

or more separate violations

familiar

three-step

of

of Title

McDonnell
Douglas
___________________

framework for analyzing discrimination claims.

Lattimore
_________

must

actionable violation, DeNovellis would have

the

Douglas
Corp.
_______________

has been

v.

Green,
_____

411

Polaroid Corp.,
______________

U.S.

99

792,

F.3d 456,

critical importance here, he would

-1818

See McDonnell
___ _________

802-05

465

(1973);

(1st Cir.

have to offer

facts,

at an

evidentiary level

sufficient

to withstand

motion for summary judgment, showing that the alleged adverse

employment action

basis

of his

violation).

was

motivated by

race, national

discrimination

origin,

See St. Mary's Honor Ctr.

___ ______________________

or age

on

(for an

v. Hicks,
_____

the

ADEA

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,

is

often

discriminatory

intent

circumstantial

evidence is often

such intent.

v. Aikens,
______

supra,
_____

show

at 11.

As

discriminatory

come

the only means

the Court noted

motive by

disbelief of

of

by,

and

of proving

suspicion

of mendacity) may,

facie

case,

& Grossman,

in Hicks, DeNovellis may

_____

circumstantial means:

the reasons

(particularly if

prima

to

716 (1983); Lindemann

defendant

the

hard

evidence

See United States Postal Serv. Bd. of Governors

___ ___________________________________________

460 U.S. 711,

factfinder's

direct

disbelief

put

forward by

is accompanied

together with the

suffice

to

"The

show

the

by

elements of

intentional

discrimination.

reasons will

Thus, rejection of the defendant's proffered

permit [but not

______

infer the ultimate

. . .

upon

discrimination

such

is

require] the trier of

fact to

fact of intentional discrimination,

rejection,

required."
________

-1919

no

additional

Hicks,
_____

509

proof

U.S.

at

and,

of

511

(footnote

and internal

Burdine,
_______

450 U.S.

directly

or

at

quotation marks

256

"indirectly

omitted); see also

_________

(plaintiff

may

showing

that

by

succeed

the

either

employer's

proffered explanation is unworthy of credence.").

"[A]t

function is not

and

determine

to

summary

truth

of the

the

judge's

to weigh the

evidence

matter

but

to determine

Anderson, 477
________

The district court found that DeNovellis failed

burden, even at

litigation,

stage

a genuine issue for trial."

offer sufficient evidence,

meet his

judgment

himself [or herself]

the

whether there is

U.S. at 249.

the

of

direct or

circumstantial, to

the summary judgment stage

providing

substantive

evidence

of the

that

discrimination

was a factor

in his post-Act

deprivation of

duties.

DeNovellis does not seriously

on appeal.

Nor could he:

the

contest that finding

record in this case presents

qualitatively different

scenarios

post-Act

district court correctly

periods.

The

for the

there was enough

evidence of possible

between Williams

and DeNovellis that

pre-Act detail was

personality

ended and

pre-Act and

the

found that

discriminatory animus

a jury could

find the

motivated by discrimination and

not mere

differences or cronyism.

Williams was no

But once

longer in charge of

that detail

the Regional

Office, the reasons for DeNovellis's assignments were neither

analogous nor part of the

same pattern or series.

There

is

-2020

precious little

fact

on

discriminatory

decisions.

because

that

evidence or inference

motive

for

to get to a

post-Act

trier of

employment

Of course, discrimination is not precluded merely

Williams was no longer in charge.

Galligan is white insulate the

Nor does the fact

defendant from a charge

that

for

Galligan's actions were motivated

the

first

Williams was

in the

eight

Galligan's deputy.

office, might

Williams's

months of

of

Galligan's

tenure

given great

biased

recommendations

subordinate

evidence of

as RA,

Galligan, as the new person

personnel

reorganization, transition, and realignments.

presented no

After all,

very well have

allegedly

reassignment

by race.

weight to

about

during

the

But DeNovellis

such discriminatory taint,

either

directly or by inference.

Indeed,

there

is

Bureaucratic

delays arising

indisputably

had nothing

invidious

characteristics,

to

evidence

from the

do

with

overtook

to

the

contrary.

reorganization, which

DeNovellis

DeNovellis's

or

with

personal

situation.

that

Further, at

any of Galligan's

discrimination

employment.

in

his

deposition, DeNovellis

actions were motivated

any

decision

And DeNovellis

affecting

denied

by invidious

DeNovellis's

himself attributed a significant

part of the delay in assigning him to a permanent position in

the

new agency to his own error

paper" that he wrote and

in judgment:

widely disseminated.

-2121

the "position

The

district

court

correctly concluded

contains

Therefore,

virtually

no

DeNovellis

that

the

evidence

cannot

of

rely

record

in

this

post-Act

on

case

violations.

a serial

violation

theory to defeat the Secretary's motion for summary judgment.

B.

Continuing Effects
__________________

DeNovellis also argues another theory to circumvent

Landgraf:
________

continuing

that the

violation

pre-Act sham

through

assignment constituted

its

continuing

effects.

Although the assignment itself was a discrete action that was

over

and

emphasizes

done

that

with before

its

effects
_______

November

21,

continued

1991, DeNovellis

into

the post-Act

period.

According to DeNovellis, these post-Act effects turn

the pre-Act discrimination into

continued

post-Act,

remedies.

Act

a continuing violation

thereby

triggering

But continuing effects, without

discriminatory actions, do

decision into

not turn a

a continuing violation.

the

1991

that

Act's

additional post-

discrete pre-Act

See United Air Lines,

___ _________________

Inc. v. Evans, 431 U.S. 553, 558 (1977).

____
_____

At one time,

it was thought that

effects" theory described

violation

violations.

of the

case,

in

But the

this "continuing

a viable third type

addition

to

systemic

of continuing

and

Court has made it clear that

inquiry in continuing

violation cases

serial

the focus

should be

on

"whether any present violation exists," not whether there are

residual

effects of past discriminatory conduct to which the

-2222

statute does not

act, not

apply.

merely the

Id. (holding that

___

effects of
_______

a past
____

a discriminatory

discriminatory act,

must occur within the statute of limitations period of

Title

VII); see Delaware State College

___ ______________________

(1980); Sabree,
______

921 F.2d

'continuing violation'

and no

at 400.

"[A] court

argument must

continuing violation and

yet discrete

v. Ricks, 449 U.S. 250, 258

_____

evaluating a

distinguish between

the continuing effects of

longer existent,

a prior,

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

deadline.

Morrison, 108
________

F.3d at

extending

443.

beyond the

We

held that

time

the

employer's "inaction [was]

not enough."

Id.
___

We pointed to

____________________

5.

We

note that

this

is

a rule

governing

what kind

conduct creates liability, not a rule of evidence.

of

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,
liability, the
are

although not

considered in

continuing effects of

considered at

"The objective of

the relief stage

determining

discriminatory conduct
if liability

fashioning an appropriate remedy

VII cases is

to formulate the most

to eliminate

the effects

is found.
in Title

complete relief possible

of discrimination."

Sabree,
______

921

F.2d at 401 (internal quotation marks omitted); see Albemarle

___ _________
Paper Co. v.
__________
extent

Moody, 422
_____

consistent

violation of

with

Title VII has

U.S.

405, 418-21

statutory

limitations,

been found, it is

courts to fashion "make whole" relief.).

-2323

(1975) (To
once

the
a

important for

what we had said in a somewhat analogous situation:

incumbent

indication

. . .

upon [the plaintiff]

that the later

violations.'"

to allege facts

"'it was

giving some

refusals were themselves separate

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

remedied by the

sham detail

had not

time the Act became effective,

the liability stage

of our inquiry is the

made the

discriminatory decision

allegedly

been

the focus at

date the employer

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'

"was

not a

separate

act of

refusal to reinstate

discrimination,

plaintiff

but rather

consequence of his initial demotion."); Valles Velasquez, 736

________________

F.2d

at

833

(demotion

followed

refusals

to

reinstate

plaintiff

continuing violation);

of requests to

by

defendant's

did

Goldman, 607 F.2d

_______

be retransferred back to

not

repeated

constitute

at 1018-19 (denial

original department

after

allegedly

constitute

DeNovellis's

discriminatory

continuing

continuing

initial

violation).

effects

transfer

We

argument

insufficient.

C.

Hostile Work Environment

________________________

-2424

did

conclude

is

not

that

legally

As his

DeNovellis

final salvo

against the

Landgraf bulwark,
________

argues a theory of hostile work environment which

would constitute

a continuing violation of Title

Mills v. Amoco Performance Prods., Inc., 872 F.

_________________________________________

VII.6

See
___

Supp. 975,

986 (S.D. Ga. 1994) (A "hostile environment sexual harassment

claim is

cites

an archetypal

cases involving

concluded

that

the

independent acts of

components of

hostile

continuing violation

sexual harassment

allegations

"were

sexual harassment .

one cause

environment."

of action for

Mills,
_____

872 F.

claim.").

where courts

not

discrete

. . but

an alleged

Supp. at

He

have

and

additional

sexually

985.

"A

hostile environment claim is a single cause of action

than

a sum total of a number

rather

of mutually distinct causes of

____________________

6.

The government

argues that DeNovellis cannot

hostile work environment

allege

it in

his

of the complaint

concept

of notice

articulate

the

plaintiff bases
simply

"'give

plaintiff's

argument here because he

complaint.

purpose

That

view misconstrues

complaint

legal

his right to
the

failed to

in federal litigation.

pleading, a

precise

raise this

recovery.

defendant

fair

upon
The

clearly

which

the

complaint must

notice

claim is and the grounds

Under the

need not

theories

the

of

what

the

upon which it rests.'"

Baldwin County Welcome Ctr. v. Brown, 466 U.S.

_____________________________________
(1984) (quoting Conley v. Gibson, 355
_________________

147, 150 n.3

U.S. 41, 47

(1957)).

The plaintiff in the present case made clear in his complaint

the

types of adverse

action he

was alleging

derogatory comments), and set forth the

that he
age), in

claimed for

those actions

(sham detail,

discriminatory basis

(race, national

violation of Title VII and the

ADEA.

origin,

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

reply brief).

That is

argue that theory

for summary

judgment

(albeit in

sufficient to enable the plaintiff to

on appeal.

Cajigas v. Banco de Ponce, 741

_______
______________

F.2d 464, 468 n.12 (1st Cir. 1984).

-2525

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

post-Act conduct amounting

VII.

to sexual harassment

for any

under Title

Id.
___

Although

courts have

than

and punitive damages

DeNovellis does

allowed Title

sexual

harassment.

not discuss

VII claims

See
___

them, other

for harassment

Lattimore, 99
_________

F.3d

other

at 463;

Lindemann & Grossman, supra, at 749-54.

_____

Indeed, until recent

years, one of

harassment claim was

verbal

abuse,

Grossman,

the most common forms of

such as

racial

supra, at 749-54.
_____

epithets.

See
___

Harassment may also

pranks and other forms of hazing, even without

although, in such

Lindemann &

consist of

racial slurs,

cases, "courts look especially

closely to

see

whether the conduct

is in

invidiously] motivated."

Not

all

harassment; trivial

that, in

sexual

offensive

conduct

offenses do

order to

harassment under

[or otherwise

Id. at 753.
___

Sav. Bank v. Vinson, 477 U.S.

_________
______

ruled

fact racially

is

actionable

not suffice.

57, 67 (1986).

establish

a hostile

See
___

has

VII claim

for

environment theory,

the

a Title

"'sufficiently severe or pervasive

the

of

abusive

[or

the victim's

hostile]

working

-2626

Meritor
_______

The Court

conduct must be

conditions

as

employment

environment.'"

and

to alter

create an

Harris
______

v.

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

sufficiently severe

whether harassment

or pervasive to

on

the job

rise to the level

is

of a

Title VII

violation, courts look

the frequency

of the offensive

863 F.2d at 1510-11

employee's work

harassment

to the gravity as

conduct.

violation).

harassment be severe

pervasive

if

enough to

workplace.

Man. at

(even

sufficient to

establish

Guidelines

published by

the Equal

without

require that sexual

enough to alter the

the

become

conduct

only

defining

EEOC Policy Guidance on Sexual

405:6689; see Lindemann

___

Sexual harassment can

fixture above

twice was

Employment Opportunity Commission (EEOC)

experience

See, e.g., Vance,

__________ _____

(noose hanging from light

station

well as

be severe

victim's workplace

occurs

once),

condition

the

Harassment, 8 FEP

& Grossman, supra,

_____

enough to

of

or

at 794.

be illegal

even

tangible effects on job performance or psychological

well-being.

Harris, 510 U.S. at 22.

______

DeNovellis's

such as

Mills is
_____

analogous.

pervasive

constitutes

reliance on

sexual harassment

misplaced because

the situations

cases

are not

Mills and other sexual harassment cases involve a

_____

and

continuing

hostile

continuing

violation,

-2727

work environment,

akin

to

which

systemic

(continuing practice)

allegations

best,

of

violation.

In

"purgatory" job

allegations as to

contrast, DeNovellis's

assignments

set

forth, at

discrete and independent employment

decisions,

however adverse.

Such claims are

not pervasive

enough

be

one

imposition of

to

hostile

work

Nor

is

constitute,

considered as

environment, analogous

"purgatory"

by itself,

to

sexual harassment.

assignment

sufficiently

work

hostile

previously noted, the fact that

to

continuous

"purgatory" cannot constitute

severe

environment.

to

As

DeNovellis remained assigned

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

individual

analysis.

Nevertheless,

evidence on

reasonable

work

the

assignment

See
___

question is

environment claim.

of

fact

derogatory remark

Vance,
_____

the entire summary

trier

or

to

We agree

863

whether

F.2d

1510.

he produced

judgment record to

find

at

cognizable

for

enough

enable a

hostile

with the district court that he

did not.

Williams and

others

at HHS

apparently made

some

scattered

comments

that

could

be

construed

as

evincing

-2828

racial,

ethnic, or age-based hostility, although some of the

comments

in

presence.

DeNovellis does not argue that these comments were

severe

the

record

were

not

made

in

DeNovellis's

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

DeNovellis

major

aspect

claims was

of his

hostile or

work

environment

"harassing"

that

was his

so-

called "employment purgatory" of job assignments to positions

he considered to be unfit for his level of qualification.

As

already

an

noted, the

"hostile"

undesirable

job

assignment

environment

claim; it

however adverse it may

is

be.

is

aspect

of

not

akin

remaining

pervasive

discrete employment

decision,

Even when this

to

in

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

we affirm

the district court's decision is

reason to

warrant reversal.

moved

remedy if

not a sufficient

The Court in Landgraf

________

by petitioner's argument

there that, "if

was not

she [could]

not obtain damages pursuant to [the 1991 Act], she [would] be

left

remediless despite an

adjudged violation of

-2929

her right

under Title VII to be free of workplace discrimination."

U.S. at 285

n.38.

create

'general

As the

Court put it, Title

right

to

sue'

511

VII "did not

for

employment

discrimination, but instead specified a set of 'circumscribed

remedies,'"

and "[u]ntil the

1991 amendment, the

scheme did not allow for damages.

has

We are not free to fashion

remedies

that

extend."

Id. (quoting United States v. Burke, 504 U.S. 229,

___
______________
_____

240 (1992)).

Congress

Title VII

DeNovellis's lack

specifically

chosen

of a remedy (even

not

to

if there

were a violation) is a result of the way Congress had drafted

Title VII

prior to the

1991 Act; whatever

from that

limited remedial

scheme

unfairness arose

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

environment

claims

administrative

because

remedies.

district court's decision.

judgment

against

administrative

deprivation

of

he

him

failed

to

DeNovellis

exhaust

his

misconstrues

the

The court did

based

on

his

remedies.

With

duties

the district

strong argument" could be made

and hostile

not grant summary

failure

respect

court

to

to

exhaust

the

post-Act

stated

that "a

that he has not exhausted his

Title

VII claim,

but the

court did

not decide

the issue.

-3030

Moreover, with respect to his claim under the ADEA, the court

noted

that

argument.7

the

The

government

district

had

court

waived

decided

any

exhaustion

the

post-Act

deprivation

of duties

failed

produce

to

claim on

evidence

the

to

basis that

support

DeNovellis

claim

of

discrimination, sufficient to withstand summary judgment.

The

work

district court

environment claim

rejected DeNovellis's

based on

the same reasoning

hostile

as the

pre-Act deprivation of duties (a possible wrong but without a

remedy).

exhaust

The court

added one sentence

as an alternative

stating failure

ground for rejecting

this claim,

but we need not address that here because we affirm based

DeNovellis's failure to

to

demonstrate a genuine issue

on

as to a

severe or pervasive hostile environment.

Thus,

argument

because

judgment ruling

we

need not

we

uphold

as to Title

reach

DeNovellis's exhaustion

the district

VII and the

court's

summary

ADEA based

on its

reasons other than exhaustion.

____________________

7.

The

require

government takes the position that the ADEA does not

a

remedies.
private

federal employee
The

discrimination

that, like
estoppel,

with
to suit

that
the

and

EEOC

timely
not

court,

tolling."

455 U.S. 385,

apply as

in the context of

is

administrative

charge

but a

Zipes
_____

393 (1982).

well when a

a
of

jurisdictional
requirement

limitations, is subject

equitable

Airlines, Inc.,
______________

"filing

in federal

a statute of

Zipes should
_____

exhaust his

Supreme Court has held,

employer,

prerequisite

to

v.

to waiver,
Trans World
___________

Quite

possibly

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

point definitively in the present case.

-3131

decide the

-3232

V.

Declaratory Relief and Attorney's Fees

______________________________________

Finally, DeNovellis argues that

should

fees.

have awarded

His

him

the district court

declaratory relief

reasoning, however, is based on

and attorney's

a false premise.

DeNovellis asserts that the district court

ruled as a matter of law that DeNovellis'

"five-month

assignment

position for
was not
also

which he had

only a
an

to

set-up

adverse

financial

no background

for failure

employment

but

action"

motivated by illegal discrimination based

upon age, race or ethnicity.

The

internal quotations

court's conclusion as

sham

assignment

within the meaning

assertion

after

accurately

to the legal

constituted

reproduce the

question of whether

an adverse

of Title VII and the

the

internal

district

employment

ADEA.

quotation,

the

action

DeNovellis's

however,

misrepresents what the district court found.

The

court

held

that

DeNovellis

sufficient evidence on the intent issue

had

presented

to survive a summary

judgment motion as to his pre-Act deprivation of duties.

court

did

not

make

a conclusive

factual

finding

as

The

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

if the case

went to trial and

be entitled to a remedy even

he were able to

-3333

persuade the

trier

of

fact

that

the

defendant

was

motivated

by

discriminatory intent.

The difference between what the court actually held

and what DeNovellis

that

the court

was

claims it held is fatal

obligated to

judgment and attorney's fees.8

his characterization of

district

court

discriminatory

had

award

to his argument

him a

If DeNovellis were correct in

the posture of the case

already

intent --

declaratory

made

then the

factual

court

-- that the

finding

would still

of

have

discretion

finding

as to whether

discrimination

DeNovellis

might be

to grant declaratory

at

trial.

But

able to persuade

relief after

at

us that

least

then

the district

court abused its discretion in denying him declaratory relief

and fees.

The Declaratory

which confers

absolute

discretion

Judgment Act is "an

discretion on

right

upon

the

to

decline

to

Wilton v. Seven Falls Co.,

______
_______________

the

courts rather

litigant";

enter

enabling Act,

courts

have

declaratory

"By

an

broad

judgment.

515 U.S. 277, 287 (1995) (quoting

Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S.

___________________________
__________

(1952)).

than

the Declaratory Judgment Act,

237, 241

Congress sought

____________________

8.

Although

judgment,

his

complaint

did

not

seek

declaratory

DeNovellis argues that the court had the authority

to award such relief under his final prayer for relief, which
sought
proper."

"such other
He

and further

is correct

on this

relief as

may be

point, but we

just and
reject his

declaratory judgment argument on other grounds.

-3434

to place a remedial arrow

in the district court's quiver; it

created an

opportunity, rather than

a duty, to grant

form of relief to qualifying litigants.

nonobligatory

nature

of

the remedy,

a new

Consistent with

district

the

court is

authorized, in the sound exercise of its discretion, . . . to

dismiss

an action

trial."

Wilton,
______

have

a 'virtually

seeking

declaratory

515 U.S. at 288.

unflagging

judgment

before

Although "federal courts

obligation'

to exercise

the

jurisdiction conferred on them by Congress," a district court

may "nonetheless abstain from the assumption

over a suit

in 'exceptional' circumstances" such

declaratory judgment is

pending in a

of jurisdiction

state court

sought regarding an

action.

Wilton,
______

as where a

issue currently

515 U.S. at

(quoting Colorado River Water Conservation Dist.

_________________________________________

284

v. United
______

States, 424 U.S.

______

declaratory

federal

judgment

courts

jurisdiction

800, 813, 817-18, 818-20 (1976)).

context,

should

yields

the

normal

adjudicate

claims

to considerations

of

"In the

principle

that

within

their

practicality and

wise judicial administration."

Wilton, 515 U.S. at 288.

______

see
___

U.S. 452,

Steffel v. Thompson, 415

____________________

federal

district

court

has

the

appropriateness

and the

merits of

irrespective of

its conclusion as

duty

468 (1974)

to

to the

("'[A]

decide

the declaratory

But
___

the

request

propriety of

the

issuance of [a requested] injunction.'") (quoting Zwickler v.

________

Koota, 389 U.S. 241, 254

_____

(1967)); Frankfurter & Landis,

The
___

-3535

Business of the Supreme Court: A Study of the Federal

_____________________________________________________________

Judicial System 65
_______________

(The federal courts are

powerful reliances for

"the primary and

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

its

discretion.

district

court

whether the district

Wilton, 515
______

actually

found

DeNovellis's deprivation

of

Rambo, 117
_____

Longshore

discretion.

289.

Thus,

discriminatory

of duties,

find that the denial of a

abuse

U.S. at

we might

court abused

if the

intent

in

or might

not

declaration to that effect was

Cf.
___

an

Metropolitan Stevedore Co. v.

____________________________

S. Ct. 1953 (1997) (nominal

damages permitted in

and Harbor Workers' Compensation Act case in order

to preserve right to receive future benefits).

Because the district court

of

discriminatory

reaching

intent

any conclusion as

was

found that the question

triable

to whether such

issue,

without

intent actually

existed, our review of its denial of declaratory relief is in

different posture.

conducting

a trial

counter-arguments

statements

or

The

court

in this

as

to

actions,

case,

faced the

assessing arguments

what people

with no

intended

opportunity

relief to DeNovellis that would remedy the harm

suffered.

authority

After trial,

to enter

the court

a declaration

-3636

possibility of

by

to

certain

award any

he allegedly

might possibly have

that some

and

or all

the

of the

defendant's

now-terminated

discriminatory.

district

the circumstances

court's decision

from such a

power.

In

employment

-- prior to

of

were

case, the

to refrain

its discretionary

See Wilton, 515 U.S. at 288.

___ ______

declaratory

of other

DeNovellis

has

no

entitlement

relief, he has

not prevailed

Texas State Teachers Ass'n

____________________________

489

to

judgment and because we have affirmed the denial

on any issue

case and attorney's fees may not be awarded.

Dist.,

this

trial --

fruitless endeavor was within

Because

1988;

actions

U.S.

782,

791-92

v.

(1989)

in the

See 42 U.S.C.
___

Garland Indep. Sch.

____________________

(A

litigant

is

_____

prevailing party

if he

"has succeeded

issue in litigation which achieve[d]

parties sought in bringing

(quoting

on 'any

significant

some of the benefit the

suit.'") (alteration in original)

Nadeau v. Helgemoe, 581

______
________

F.2d 275, 278-79 (1st Cir.

1978)).

Conclusion
__________

Title

VII

and our

serve essential societal goals.

If America stands

other

antidiscrimination laws

See Aikens, 460 U.S. at 716.

___ ______

for anything in the world,

it is fairness

to all, without regard to race, sex, ethnicity, age, or other

immutable characteristics that

cannot change.

We have

a person does not

recently had occasion to

choose and

note that

"Title VII is one

this

nation's

of the brightest stars in the firmament of

antidiscrimination

laws."

Serapion
________

v.

-3737

Martinez, ___ F.3d ___, ___, 1997 WL 394605, at *2 (1st

________

July 18, 1997).

Cir.

The

standards

for

favorable to the party opposing

motive

summary

judgment

are

highly

such a motion, and issues of

often present fair factual disputes properly resolved

by a factfinder

after trial.

the

evidence

dearth

of

Nevertheless, in this instance

is simply

too

great

and summary

judgment was properly granted.

The judgment of the district court is Affirmed.

Affirmed
________

-3838