601 F.

2d 1217

20 Fair Empl.Prac.Cas. 102,

20 Empl. Prac. Dec. P 30,043
Margaret M. BLIZARD, Plaintiff, Appellant,
v.
Alfred L. FRECHETTE, as He Is Interim Commissioner of the
Department of Public Health, Commonwealth of
Massachusetts, Defendant, Appellee.
No. 78-1455.

United States Court of Appeals,

First Circuit.
Argued May 8, 1979.
Decided June 29, 1979.

Jeanne Baker, Cambridge, Mass., with whom Rosenberg, Baker & Fine,
Cambridge, Mass., was on brief, for plaintiff, appellant.
Terry Jean Seligmann, Asst. Atty. Gen., Boston, Mass., with whom
Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendant,
appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MURRAY,
Senior District Judge.*
COFFIN, Chief Judge.

This is the second appeal in a sex discrimination case from the trial court's
ruling against plaintiff-appellant on the merits. The basic facts of the case
appear in Blizard v. Fielding, 572 F.2d 13 (1st Cir. 1978). The core of
appellant's complaint is that she was not promoted to the position of Deputy
Commissioner of Public Health of the State of Massachusetts because of her
sex and that she was retaliated against when she complained of this
discrimination to state and federal authorities. Appellant now challenges the
trial judge's refusal to recuse himself under 28 U.S.C. 455(a) from hearing the
case on remand. Appellant argues further that a new trial was required by our

first opinion in this case and raises for a second time several evidentiary points
not decided in the first appeal. We affirm the judgment below.
2

This case was tried fully to the court. In an unpublished opinion, the trial court
ruled for the defendants, finding that any adverse employment decisions by the
defendants were not sex-based and were grounded upon legitimate,
nonpretextual justifications. The court found further that any adverse changes
in plaintiff's work assignments and working conditions were not in retaliation
for plaintiff's assertion of sex discrimination claims before state and federal
agencies. The court did not, however, apply the analytical framework of
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), to the evidence in the case, failing to determine whether or not plaintiff
had made out a prima facie case of sex discrimination. We remanded for
application of the McDonnell Douglas standards.

On remand, plaintiff-appellant moved that the trial judge, the Honorable

Andrew A. Caffrey, disqualify himself from further consideration of the case
because "his impartiality might reasonably be questioned." 28 U.S.C. 455(a).
Appellant also moved for a new trial. In an unpublished opinion, the district
court denied both motions and held that although plaintiff-appellant had made
out a prima facie case under McDonnell Douglas, defendants had carried their
burden of demonstrating legitimate, nonpretextual reasons for their employment
decisions. The district court went on to reiterate and more fully explain its
original holding that the changes in appellant's work assignments could not
fairly be characterized as retaliatory because appellant substantially failed to
perform her assigned duties and therefore received assignments of lesser
significance, or none at all. Finally, it held that no retaliatory motive prompted
the change in appellant's office location and the temporary deprivation of a
secretary, both problems being a part of a restructuring necessitated by physical
and fiscal restraints on department resources.

The Section 455(a) Recusal Issue

4

Appellant bifurcates her attack on the district judge's resolution of the recusal
issue into an effort to show that he applied the wrong legal standards and a
lengthy attempt to demonstrate that application of the correct legal standards
would require recusal. We are not convinced by either argument.

The court began its consideration by setting forth our interpretation of the new
28 U.S.C. 455(a), as propounded in United States v. Cepeda Penes, 577 F.2d
754 (1st Cir. 1978) and United States v. Cowden,545 F.2d 257 (1st Cir. 1976).
In essence, section 455(a) allows a judge to disqualify himself if a reasonable

man would have factual grounds to doubt the impartiality of the court. Such a
standard allows recusal when objective appearances provide a factual basis to
doubt impartiality, even though the judge himself may subjectively be
confident of his ability to be evenhanded. As the court recognized, Cepeda
Penes also stands for the proposition that a judge's conduct during prior judicial
involvement in a case (as opposed to extrajudicial knowledge of the parties or
evidence) can conceivably provide a factual basis for doubting impartiality.
Finally, the new section 455(a) was expressly intended to do away with the socalled "duty to sit" doctrine, which required a judge to hear a case unless a clear
demonstration of extrajudicial bias or prejudice was made. Compare In re
Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961) With H.Rep.No.931453, 93d Cong., 2d Sess., Reprinted in, (1974) U.S.Code Cong. &
Admin.News, pp. 6351, 6355.
6

Appellant does not quibble with the judge's thorough explanation of the ground
rules laid out in section 455(a). Rather, appellant takes issue minutely with his
application of those rules, arguing that the language of his opinion
demonstrates that he used a different, and erroneous legal standard. First,
appellant objects to the trial court's vehement denial of extrajudicial knowledge
of appellant. Contrary to the inference drawn by appellant, we do not read this
statement as basing the final decision solely on the lack of extrajudicial
knowledge of appellant. The trial court's opinion does not state that a finding of
bias is precluded because there is no demonstration of extrajudicial knowledge
of plaintiff. It does not state that knowledge and attitudes acquired solely in
judicial proceedings can never be a basis for disqualification. Rather, appellant
herself raised the issue of extrajudicial knowledge in her brief supporting the
motion to recuse, and the court was careful to cover that point as one of several
raised.

Second, appellant argues that the judge's recitation of record support for all of
his less-than-complimentary findings of fact demonstrates a subjective, selfjustifying approach to the section 455(a) issue where an objective evaluation of
the appearance created by his prior words and acts was called for. We disagree.
As a finder of fact in a Title VII case, a trial judge must give his candid
evaluation of plaintiff's case. If a case is weak to the point of frivolousness, it is
appropriate to say so. A reasonable man evaluating the possible partiality of the
judge-as-fact-finder would rationally look to the record to see if the judge's
candid evaluation is fully supported. We see nothing "subjective" about
objectively evaluating whether or not the content and tone of earlier findings
have a solid basis in the record.

Appellant's final argument concerning legal standards faults the court's

quotation of Union Leader, to the effect that "(t)here is as much obligation upon
a judge not to recuse himself when there is no occasion as there is for him to do
so when there is." In re Union Leader, supra, 292 F.2d at 391. Appellant finds
in this quotation a clear invocation of the "duty to sit" doctrine. We agree that
this quotation is drawn from a case applying the rigorous standards for
disqualification found in 28 U.S.C. 144. We do not agree, however, with
appellant's conclusion that the use of this quotation demonstrates the
application of an erroneous legal standard. Appellant reasons that because
section 455(a) allows recusal if there are reasonable factual grounds to doubt a
judge's impartiality, the burden is on the trial court to show impartiality beyond
a reasonable doubt. Appellant goes so far as to imply an analogy between the
language of the standard and its corollary in criminal procedure: whereas the
"duty to sit" doctrine created a presumption against disqualification, the
"reasonable doubt" standard creates a presumption of disqualification.
9

We do not think that the impartiality of every federal judge must be

demonstrated beyond a reasonable doubt in the usual sense of that phrase. A
trial judge must hear cases unless some reasonable factual basis to doubt the
impartiality or fairness of the tribunal is shown by some kind of probative
evidence. See, e. g., Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251
(5th Cir. 1978) (trial judge's former law clerk appears as advocate in trial on
remand of case originally heard while clerk worked for trial judge; appearance
of unfairness requires recusal). In this sense, i. e., that judges hear cases unless
there is some reason not to, the "duty to sit" remains. It was in this sense that
the court used the quote from Union Leader, after thoroughly reviewing all of
appellant's arguments.

10

We turn next to the specific evidence of partiality cited by appellant. It seems

clear that our review is limited to determining whether the trial court's
evaluation of that evidence amounted to an abuse of discretion. Mayberry v.
Maroney, 558 F.2d 1159, 1162 (3d Cir. 1977); Davis v. Board of Schl.
Comm'rs, 517 F.2d 1044, 1052 (5th Cir.), Cert. denied,425 U.S. 944, 96 S.Ct.
1685, 48 L.Ed.2d 188 (1976); H.Rep.No.93-1453, Supra, (1974) U.S.Code
Cong. & Admin.News, p. 6355. We cannot say there was any such abuse here.

11

Appellant relies in chief upon three less than complimentary characterizations

of appellant and her case included in the district court's first opinion.1 Even
reading words out of context, as appellant presents them to us, we cannot fault
the district court's conclusion that they show no factual support for a reasonable
inference of partiality. The record supports the conclusions reached by the
district court so fully that we cannot find any inference of partiality in the
court's choice to express its decision in no uncertain terms. Perhaps more

important, appellant's quibble with its choice of words focuses solely on the
two concluding paragraphs of a lengthy opinion that thoroughly disposes of
appellant's claims in a fair and neutral evaluation of the evidence. If a
concluding paragraph using colorful language to drive home a point proves an
entire opinion biased, then few, if any judicial opinions pass muster under
section 455(a). We do not hold that words alone can never provide a factual
basis to doubt impartiality; but these words, while enough to fuel an argument,
do not suffice.
12

Appellant's other evidence of partiality boils down to sniping at the court's

evidentiary rulings, occasional interrogation of appellant on the stand, and
alleged hostility toward appellant. We have reviewed the trial transcript and
find nothing to support appellant's arguments. The judge initially allowed
appellant to ramble in her testimony and to answer the unasked. It soon became
clear, however, that appellant had confused her role as a witness with her
attorney's role as an advocate. At that point, it was not improper to admonish
appellant to confine her answers. Only once did the judge interrogate appellant
at any length, and his attempts to get a straight answer demonstrate, at worst,
incredulity and not hostility. The right of a trial court, sitting as a trier of fact, to
interrogate witnesses to clarify the record needs no citation. And, of course,
adverse evidentiary rulings do not, by themselves, demonstrate bias. United
States v. Schwartz,535 F.2d 160, 163 (2d Cir. 1976).

13

In sum, the denial of the motion to recuse was not an abuse of discretion.2

The Motion for a New Trial

14

Appellant argues that the trial court could not comply with the mandate of our
remand of this case without a complete retrial. Appellant argues that the
opinion in Blizard v. Fielding, supra, finds such fault with the original
consideration of this case that retrial was unavoidable. We do not agree.

15

Our first opinion in this case expressed concern that failure to apply the
McDonnell Douglas analysis might have short-circuited some important factual
considerations. We suggested that the existence of a prima facie case might
affect the district court's evaluation of the proffered justification for not
promoting appellant. We also left it to the district court to consider the
importance of its evidentiary rulings and its findings on retaliation in light of
the prima facie case issue. We do not think that any of these concerns required
more than an exercise of the district court's discretion in determining whether or
not a new trial was needed.

16

As the Supreme Court has recently explained, "(t)he method suggested in

McDonnell Douglas for pursuing (the issue of discriminatory action) was never
intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible,
orderly way to evaluate the evidence in light of common experience as it bears
on the critical question of discrimination." Furnco Constr. Corp. v. Waters, 438
U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The district court's
second opinion demonstrates just such an orderly evaluation of the evidence,
finding that appellant had indeed shown a prima facie case. More important,
the issue that was fully joined at trial defendants-appellees' legitimate reasons
for adverse action could be fairly resolved on the record in defendants' favor,
thereby negating any inference founded upon the existence of a prima facie
case.

17

Appellant argues that McDonnell Douglas requires not just a method of

analysis but also a method of receiving and responding to proof at trial. We do
not think this contention can stand in the light of Furnco. The first step in
McDonnell Douglas analysis, consideration of a prima facie case, has ended
with all agreeing that the basis for an inference of discrimination exists.
Defendants went forward with the second step, showing legitimate reasons for
their actions. The district court found that there was no evidence showing the
proffered reasons were pretextual, and plaintiff-appellant has not convinced us
that any further evidence exists on the issue. The third step is thus completed.
We see no reason to rehear the same evidence.

18

This analysis also disposes of appellant's argument based upon Corley v.

Jackson Police Dep't, 566 F.2d 994 (5th Cir. 1978). In Corley, the district court
failed to take the third step by failing to consider evidence that discharged black
officers were disciplined for taking bribes while white officers were not, i. e.,
that the legitimate reason was a pretext. Nor do we find appellant's analogies to
the confused legal standards and burdens of proof applied by the district court
in Corley to be apt. The only "confusion" that existed in this case was the trial
court's extraneous consideration of the age discrimination claim that appellant
filed with the Massachusetts Commission Against Discrimination (MCAD) and
pleaded in federal court but did not press at trial. The district court's second
opinion ended all concern about such surplusage.

19

Finally, no new trial was needed to hear evidence excluded at the first trial. As
noted below, we believe the trial court's evidentiary rulings were within its
discretion. Moreover, insofar as our first opinion asked the trial court to
reassess its evidentiary rulings in the light of its overall reconsideration of the
case, a full offer of proof was available in the record of the first trial, making a

new hearing unnecessary to assess the value of possible additional evidence.

Evidentiary Issues
20

Appellant argues that the trial court committed reversible error by excluding
testimony on two issues, the alleged sex bias of a prior Commissioner of Public
Health and statistical evidence concerning the number of women in high
positions in the Department. Appellant also attacks as clearly erroneous the
district court's conclusions on the issue of retaliation.

21

The first question deserves short shrift. Appellant sued Commissioner Bicknell
and his replacement, Commissioner Fielding, alleging continuing
discrimination from the time that Bicknell first refused to appoint appellant as
his Deputy. Appellant attempted to introduce evidence that Bicknell's
predecessor, Commissioner Frechette, had rebuffed a recommendation that he
promote appellant by saying: "Oh, no. She's a woman." The trial court ruled
that the comment of a prior administrator who admittedly had no control over
Bicknell had no probative value concerning Bicknell's activities.3 Were we
squarely faced with the issue, we might find such a ruling within the trial
court's discretion, but we are not. The trial court later admitted the comment
into evidence as it related to another recommendation for another position.
Even if Frechette's comment was relevant to his successor's motivations, a
proposition we doubt considering the substantial evidence of Bicknell's
independence of thought about administrative organization and appointment of
substantial numbers, of women to high positions, we can see no error in
refusing to hear it repeatedly.

22

Appellant's second point has some merit, but does not present reversible error.
Appellant offered to show that three MCAD investigators visited the
Department some time in 1972 and spent three days counting the number of
female employees in each of the salary levels of the Department hierarchy.
They found a higher percentage of female employees in the lower ranks than in
high, policymaking positions. Because the ultimate issue in this case was
whether or not the defendants' proffered justifications were pretextual,
statistical proof of a pattern of discrimination could have been highly relevant.
See McDonnell Douglas, supra, 411 U.S. at 805, 93 S.Ct. 1817. But to be
relevant, evidence must have some probative value. Appellant's offer ignored
the fact that at the time of the study Bicknell, whose alleged discriminatory
animus was at the core of the case and was the main focus of appellant's
evidence, had appointed only three out of thousands of Department employees.
More important, appellant's offer was in no way related to the available pool of
qualified female applicants for the positions filled predominantly by males. See

Hazelwood Schl. Dist. v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53
L.Ed.2d 768 (1977). Finally, even if the trial court abused its discretion in
excluding such questionable evidence, we would not find the error harmful.
The record is replete with uncontradicted evidence that Bicknell appointed
large numbers of women to high level positions on his staff. The numbers game
simply would not work here.
23

Appellant's final challenge paints a picture of a massive scheme starting in

1972, when she was first denied promotion, to paper the record against her and
provide fallacious justifications for reprisals. She argues that the trial court was
clearly erroneous in failing to pierce the paper wall. The trial judge, however,
made both specific and general findings concerning the inadequacy of
appellant's performance and appellees' reasonable, nondiscriminatory response
thereto. Those findings are not clearly erroneous.

24

In support of the trial court's general findings, the record reveals that appellant
had reached a transition stage in her career, concluding a number of substantial
assignments, contemporaneous with the appointment of a new Commissioner.
She was due for new tasks, and her new superior sought to fathom her abilities
and her proper role in his new administration by giving her significant new
tasks. Appellant's approach to meetings with him was to begin each time with
the topic of her right to the position of Deputy Commissioner, the number two
position. As it turned out, the new Commissioner found it more efficient to
have a number of department heads reporting directly to him rather than
employing an administrative chief of staff.

25

Undaunted by the Commissioner's right to organize his administration as he

saw fit, appellant continued her demands. The trial judge specifically found, on
an adequate record, that appellant responded to a request for a description of
her former and present responsibilities by stapling together a mass of brochures
of organizations with which she was associated. On this record, the trial court
found that, as a new Commissioner, Bicknell had two reasons not to appoint
appellant: he did not wish to fill the position at all and appellant stymied his
attempts to discern her qualifications.4

26

Nevertheless, appellant was given work to do. The trial court correctly found
that appellant, who is an attorney, failed to conclude an assignment to compile
a manual of laws relevant to the Department's operation, submitting an interim
report that left important questions undecided and unanswered. She also failed
to complete legal assignments relating to the Hill-Burton Program in
Massachusetts and to the extent of the legal authority of the Commissioner. We
find no support in the record for appellant's assertion that these assignments

were meaningless or represented a demotion.

27

Appellant faults the trial court's focus upon a 1972 weekly report to the
Commissioner in which appellant explained that she was spending much of her
time working on her discrimination claims. Appellant argues, and we agree,
that she had a right to spend the business hours necessary to assist MCAD and
the EEOC in processing her complaints. We do not believe, however, that the
trial judge gauged her performance from 1972 until 1977 based upon one
weekly report. Rather, the record reveals and the trial court found that in a
period of eight to nine months appellant made virtually no progress on her chief
assignment, a review of pending bills on national health insurance. Someone
else did the job. Finally, when offered another assignment commensurate with
her responsibilities, appellant declined on the ground that she would be going
on vacation in three weeks and needed to train a new secretary.

28

On the question of retaliation by depriving appellant of support staff, the record

reveals that appellant refused to use a newly instituted dictaphone/typing pool
system, although the necessary equipment was provided her. Nor are we moved
by appellant's complaint that her office was shifted out of the mainstream of
department affairs. The trial court found that there was no causal relation
between moving appellant's office and her filing of civil rights claims. The
record reveals that appellant was first moved into a suite housing many of the
lawyers in the department, a logical shift. Unfortunately, some of her fellow
attorneys became involved in defending appellant's suit against the Department.
There was uncontroverted testimony that appellant's use of the office suite put
her within arm's length of written work of those attorneys. The appearance, if
not the fact of impropriety involved in that proximity was the cause of the
second office change, not discrimination.

29

Affirmed.

Of the District of Massachusetts, sitting by designation

We set forth the concluding paragraphs of the district court's first opinion in
full. The language objected to is indicated by our italics
"In summary, I find that plaintiff is a person who is so Obsessed with the
notion that she has a right to become Deputy Commissioner of the Department
that she is unable to accept or perform any other task. I find that her irrelevant
responses to work assignments have been so frustrating to her superiors as to
warrant their giving her no meaningful role to play in the Department which

means that she is, as she put it in her own testimony, 'vegetating' in her office at
an expense to the taxpayers of some $25,000 a year. This situation is caused by
her own shortcomings and not prejudice on the part of her superiors.
"Consequently, I rule that plaintiff has failed to establish by credible evidence
either that she was discriminated against by the present or any former
commissioners because of her age or her sex and she has likewise failed to show
that any retaliatory action has been taken against her by any commissioner
present or former because of Her marathon litigation."
2

Like appellant, we relegate to a footnote the issue of whether or not the judge
should have exercised his general discretion to assign the case to another judge
on remand under our rule in O'Shea v. United States, 491 F.2d 774 (1st Cir.
1974). As noted in our discussion of appellant's motion for a new trial, Infra,
the point of the remand in this case was to make certain that the trial court's
overall evaluation of the evidence would not differ if the McDonnell Douglas
framework were applied. Accordingly, the original judge's familiarity with the
evidence and with the demeanor of witnesses who presented conflicting
testimony was crucial. The factors enumerated in O'Shea did not outweigh the
wasteful delay that would have resulted from reassignment to another judge on
remand

We find no support in the record for appellant's assertions that Bicknell's few
orientation visits during Frechette's tenure somehow imbued Bicknell with
Frechette's discriminatory views

Two personal interviews between appellant and Bicknell proved only that those
ideas she did have on issues relevant to the Department were ill-focused and
often in conflict with those of the Commissioner