Sauvage v. Chertoff - Opposition

No. 06-105

In the Supreme Court of the United States

CHARLES C. SAUVAGE, PETITIONER

v.

MICHAEL CHERTOFF, SECRETARY OF
HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

MARLEIGH D. DOVER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the Court should vacate the judgment and remand for reconsideration in light of Burlington Nor thern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006), when the magistrate judge found that petitioner failed to prove a discriminatory or retaliatory motive, and petitioner has failed to challenge that finding.

In the Supreme Court of the United States

No. 06-105

CHARLES C. SAUVAGE, PETITIONER

v.

MICHAEL CHERTOFF, SECRETARY OF
HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-2a) is not published in the Federal Reporter, but is re printed in 178 Fed. Appx. 932. The order of the district court (Pet. App. 3a-41a) is reported at 413 F. Supp. 2d 1289.

JURISDICTION

The judgment of the court of appeals was entered on April 28, 2006. The petition for a writ of certiorari was filed on July 20, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner Charles C. Sauvage, Jr. joined the United States Customs Service (Customs) in 1987. Pet. App. 4a. By 2000, at the age of 53, he had become an Associate Special Agent-in-Charge (SAIC) of the Cus toms office in Miami, Florida. Id. at 4a, 6a.

In March 2000, the Commissioner of Customs de cided that in order to reduce complacency within the agency, he would transfer a number of senior agents to different field offices. Pet. App. 5a, 27a. The ability to move is a condition of employment for Customs agents. Id. at 5a. After discussions with various executive direc tors and local SAICs, the Customs Service's Office of Investigations prepared a list of 12 agents for transfer, including petitioner. Ibid. Petitioner had been experi encing difficulties working with his supervising SAIC, and the list recommended that he be transferred to a position as an Associate SAIC in Los Angeles. Id. at 5a- 6a, 28a.

Once the Commissioner had approved the list of transferees, Customs sent petitioner a letter informing him of the transfer. Pet. App. 5a-6a. As was the case with similar letters sent to other transferred agents of retirement age, an attachment explained petitioner's retirement benefits, should he choose to decline the transfer. Id. at 6a, 30a. Petitioner decided to accept the transfer, and signed an employment agreement to that effect in April 2000. Id. at 7a.

In May 2000, petitioner attempted to block the trans fer by filing a hardship request with Customs's hardship review board. Pet. App. 7a. He asserted that his wife's medical condition required him to stay in Miami where his wife's doctors and family were located. Ibid. In re sponse to petitioner's request, Customs informed peti tioner that the hardship review board's policy did not permit the filing of a hardship request for the purpose of avoiding a directed transfer. Id. at 7a-8a.

In June 2000, petitioner filed a complaint with the Treasury Department's Equal Employment Opportunity (EEO) office. Pet. App. 8a. Petitioner's complaint al leged that his transfer was an act of discrimination based on age, race, and gender, as well as an act of retal iation. Ibid. He further alleged that "various Customs Officials" were harassing him due to his previous roman tic involvement with Bonni Tischler, who was then Assis tant Commissioner for the Office of Investigations. Id. at 4a, 8a-9a. In August 2000, petitioner filed a second EEO complaint against Tischler, alleging sexual harass ment. Id. at 9a.

Although petitioner had been due to report for duty in Los Angeles in July 2000, that report date was post poned by a series of leave requests. Pet. App. 10a. From July 2000 to July 2001, petitioner requested and received a combination of sick leave (due to stress and other medical conditions), annual leave, and family med ical leave (to care for his wife). Id. at 10a-14a. In May 2001, Customs requested the return of petitioner's ser vice gun, because his extended absence rendered him unable to meet the agency's firearm qualification re quirements. Id. at 12a-13a. That request prompted petitioner to file another EEO complaint in June 2001. Id. at 13a. That complaint alleged that the removal of his gun constituted both gender discrimination and re taliation for the filing of his harassment complaint against Tischler. Ibid.

In April 2001, petitioner submitted a second request to the hardship review board, again seeking to avoid the transfer due to his wife's medical condition. Pet. App. 12a. Under a new Customs policy, hardship could be a basis for blocking a direct reassignment, but only in "extreme circumstances." Ibid. A physician with the Law Enforcement Medical Programs concluded that pe titioner's wife was able to relocate, that the relocation would not be life-threatening, and that there was no compelling medical evidence to indicate that her condi tion would be worsened by the move. Id. at 14a. In Oc tober 2001, petitioner received a letter informing him that the board had denied his hardship request. Ibid.

Petitioner reported for duty in Los Angeles in Octo ber 2001. Pet. App. 14a-15a. According to petitioner, his duties there were significantly diminished. Id. at 15a. Petitioner worked in Los Angeles for approxi mately one month before taking his remaining leave and retiring permanently. Ibid.

2. On February 27, 2002, petitioner and six other plaintiffs filed suit in the Middle District of Florida, claiming discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. Pet. App. 16a. After the other plaintiffs settled their claims, petitioner and the govern ment consented to a non-jury trial before a magistrate judge on petitioner's claims of discrimination and retali ation. Ibid.

After a bench trial, the magistrate judge entered judgment against petitioner. Pet. App. 3a-41a. The magistrate judge rejected petitioner's claim that his transfer constituted discrimination in violation of the ADEA for two reasons. First, the magistrate judge con cluded that the transfer did not amount to an adverse employment action or constructive discharge. Id. at 18a-27a. In reaching that conclusion, the magistrate judge noted that petitioner's personal circumstances regarding his wife's medical condition were irrelevant to whether his working conditions were objectively intoler able. Id. at 24a-25a. Second, the court found that the transfer had been motivated by legitimate non-discrimi natory reasons, and that petitioner had failed to prove any discriminatory intent. Id. at 27a.

The magistrate judge also found no merit in peti tioner's claim that he had been constructively dis charged in retaliation for his EEO complaints. Pet. App. 33a-41a. The magistrate judge found that the working conditions in Los Angeles were not objectively intolera ble, and thus did not amount to a constructive discharge. Id. at 36a. In reaching that conclusion, the magistrate judge again rejected petitioner's suggestion that his own personal circumstances could provide a basis for finding objectively intolerable working conditions. Id. at 37a. The magistrate judge then went on to "reject the retali ation claim on the separate ground that [petitioner] has failed to prove a retaliatory animus." Id. at 38a.1

3. In an unpublished, per curiam opinion, the court of appeals unanimously affirmed the magistrate judge's judgment. Pet. App. 1a-2a. The court determined that the magistrate judge's "findings of fact are amply sup ported by the evidence and conclusions of law drawn therefrom are not erroneous." Ibid.

ARGUMENT

Petitioner contends (Pet. 8-9) that the Court should vacate the court of appeals' judgment and remand for reconsideration in light of Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). That con tention should be rejected and the petition should be denied.

Petitioner relies (Pet. 9) on Burlington Northern's holding that "[w]hether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the per spective of a reasonable person in the plaintiff's position, considering all the circumstances." 126 S. Ct. at 2417 (citation and internal quotation marks omitted). But even assuming that Burlington Northern "undermined" (Pet. 8) the magistrate judge's finding that petitioner did not suffer a materially adverse action, it fails to pro vide a basis for overturning the judgment below. In re jecting petitioner's claims, the magistrate judge not only found that petitioner failed to show that his transfer constituted a materially adverse action. As an independ ent ground for his decision, the magistrate judge also found that petitioner failed to prove either a discrimina tory or a retaliatory motive. See Pet. App. 27a, 38a. The court of appeals determined that the magistrate judge's findings were "amply supported by the evi dence." Id. at 2a. And petitioner has not challenged those findings in this Court.

Moreover, nothing in Burlington Northern affects the validity of that separate and independent basis for rejecting petitioner's claims. Burlington Northern ad dressed only the standard for proving a materially ad verse action; it did not address the standard for proving a discriminatory or retaliatory motive. Because the magistrate judge's findings that petitioner failed to prove a discriminatory or retaliatory motive provide an independent basis supporting the judgment below, and that basis for the judgment is unaffected by Burlington Northern, there is no reason to vacate and remand for reconsideration in light of Burlington Northern.2

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

MARLEIGH D. DOVER
Attorney

SEPTEMBER 2006

1 Petitioner's post-trial memorandum mentioned in passing three alleged retaliatory acts besides the alleged constructive discharge: retrieving his gun, administering various physical and psychological exams to establish his fitness for duty at the end of his year-long leave, and providing him with an unreasonably short time in which to report for duty in Los Angeles. Pet. App. 34a-35a & n.22. Despite oral and written warnings from the court, petitioner failed to develop those theories in the body of the memorandum, and the court deemed them to be forfeited. Id. at 34a-35a. The court noted that the three claims were, in any event, "meritless, if not frivolous." Id. at 35a n.22.

2 Because of the magistrate judge's unchallenged finding of the absence of retaliatory motive, there is also no need to consider whether the ADEA's federal sector provision, 29 U.S.C. 633a, constitutes a waiver of sovereign immunity with respect to retaliation claims. The lower courts are in disagreement on that issue. Compare Gomez-Perez v. Potter, No. 03-2236, 2006 WL 488060 at *10 (D.P.R. Feb. 28, 2006) (concluding that Section 633a does not waive sovereign immunity for retaliation claims), Whitman v. Mineta, 382 F. Supp. 2d 1130, 1136 (D. Alaska 2005) (same), and Cyr v. Perry, 301 F. Supp. 2d 527, 535 (E.D. Va. 2004) (same), with Forman v. Small, 271 F.3d 285, 298-299 (D.C. Cir. 2001) (concluding Section 633a does waive immunity to retaliation claims), cert. denied, 536 U.S. 958 (2002).