United States Court of Appeals

For the First Circuit

No. 02-2190

ANGEL DAVID MORALES-VALLELLANES,

Plaintiff, Appellant,

v.

JOHN E. POTTER, UNITED STATES POSTMASTER GENERAL;

AMERICAN POSTAL WORKERS UNION, PUERTO RICO AREA LOCAL (A.P.W.U. -

P.R.A.L.) A.F.L.-C.I.O.; DANIEL SOTO, PRESIDENT A.P.W.U.-

P.R.A.L.; ENRIQUE LOPEZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

[Hon. J.A. Castellanos, U.S. Magistrate Judge]

Before

 Torruella, Selya, and Lipez, Circuit Judges.

Miguel E. Miranda-Gutiérrez for appellant.

Arturo Luciano-Delgado for appellees American Postal Workers

Union and Daniel Soto.

David G. Karro, with whom Guillermo Gil, United States

Attorney, Fidel A. Sevillano Del Rio, Assistant United States

Attorney, Eric J. Scharf, and Stephan J. Boardman were on brief,

for appellee United States Postal Service.

August 4, 2003
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LIPEZ, Circuit Judge. Plaintiff Angel David MoralesVallellanes ("Morales") brought this action against the United

States Postal Service ("USPS" or "the Postal Service") alleging

that he was the target of retaliatory and discriminatory acts

provoked by complaints that he filed with the Occupational Safety

and Health Administration ("OSHA"). Morales also sued the American

Postal Workers Union ("APWU" or "the Union") and its president,

Daniel Soto, in the same action, claiming that the Union breached

its duty of fair representation by failing to submit and process

his grievances against USPS. 

The United States District Court for the District of

Puerto Rico referred the case to a magistrate judge, who

recommended that the court grant motions for summary judgment

submitted by defendants USPS and the Union. Morales filed a

lengthy objection to the report and recommendation, essentially

restating the allegations in his amended complaint, but also

incorporating sixty-seven new exhibits that had not previously been

brought to the magistrate judge's attention. Concluding that

"Plaintiff . . . failed to raise any material issue not adequately

addressed by the magistrate judge in his Report," the district

court adopted the magistrate judge's report and recommendation, and

granted the defendants' motions for summary judgment. After

careful review, we affirm in part and reverse in part. 
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I.

We summarize the relevant facts from the summary judgment

record, reciting them in the light most favorable to Morales. See

Diaz v. City of Fitchburg, 176 F.3d 560, 561 (1st Cir. 1999). In

1988, Morales was hired to work as a distribution and window clerk

at the Caparra Heights, Puerto Rico, Station of the United States

Postal Service. On April 7, 1995, plaintiff filed a letter with

OSHA complaining of dust accumulation, rodent infestation, and

other unsanitary conditions at the Caparra Heights station. OSHA

ordered the station manager to correct the violations by June 19,

1995, but to no avail. Morales renewed his OSHA complaint through

certified letters to the OSHA Area Director on August 1, 1995,

February 23, 1996, and April 6, 1996. Finally, on June 14, 1996,

OSHA conducted a formal inspection of the Caparra Heights station

and confirmed plaintiff's allegations. OSHA cited the Caparra

Heights station for at least five violations, and directed the

station to remedy the safety and health hazards by October 9, 1996.

At this point, we bifurcate our chronology of the

subsequent events for purposes of clarity, turning first to the

circumstances that spawned Morales's claims against the Postal

Service, and concluding with an account of the events underlying

plaintiff's claims against the Union. 

A. Events underlying the claims against USPS

Throughout the OSHA complaint process, the agency assured

Morales that his identity as an OSHA complainant would be kept
1At oral argument, plaintiff's counsel explained that the

Caparra Heights station operates twenty-four hours a day, seven

days a week. While employees at the post office typically work

only five days a week, the allotted days off for many positions do

not correspond with the weekend. 

2Morales alleges that he was assigned to this position as a

reasonable accommodation for a job-related injury. It appears that

plaintiff suffered from a physical disability that limited the

stress he could place on his right arm. This disability restricted

the tasks that plaintiff could painlessly perform at work, and

allegedly provided USPS with a pretext for excluding him from the

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confidential, and that federal law forbade USPS from retaliating or

discriminating against him for whistle-blowing. Nevertheless,

plaintiff's amended complaint alleges that by July 1995 other

employees at the Caparra Heights station were aware that he had

filed OSHA complaints, and were retaliating against him. That

month, Morales alerted the Postal Inspection Service that he had

received two threats from co-workers, but no remedial steps were

taken. 

In January 1996, plaintiff expressed interest in an

available distribution and window clerk position with Saturdays and

Sundays off.1 USPS then allegedly re-classified the position to

offer only Sundays and Thursdays off so as to decrease its

desirability to plaintiff. On March 23, 1996, Enrique Lopez, the

Caparra Heights station supervisor, issued a letter of warning to

Morales for unsatisfactory performance, citing the plaintiff's

"abuse of coffee breaks." Two months later, Lopez removed Morales

from his position as a Business Reply Mail Clerk, Postage Due Clerk

and Express Mail Clerk,2 and replaced him with a female co-worker.
workplace in February 1997. See infra. 

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In July 1996, tires on Morales's car were punctured on two separate

occasions while the car was parked in the secured Caparra Heights

station parking lot.

On October 10, 1996, Morales's contact at OSHA informed

him that the agency had no authority to protect postal employees

from retaliation, and urged the plaintiff to request USPS to

conduct an internal investigation. Without seeking Morales's

consent, OSHA forwarded his file to the Postal Service, thereby

confirming to USPS that plaintiff was in fact the whistle-blower.

From that point on, the retaliation and discrimination directed at

plaintiff worsened considerably. Morales alleged that in December

1996 he was victimized by episodes of name-calling and bullying,

and later that month he was suspended one week for violating a new

uniform policy instituted by Lopez. In January 1997, a postal

employee poured sugar into the gas tank of plaintiff's car, nearly

resulting in a traffic accident. On at least three occasions in

February, plaintiff's supervisor dismissed him from work without

pay because "there was no work available for him." Finally, on

February 20, 1997, plaintiff was transferred from the Caparra

Heights station to the General Post Office in San Juan. Morales

alleges that he was removed from the Caparra Heights station

because co-workers accused him of being "a safety hazard and a

homosexual." 
3The EEO complaint process provides an administrative forum

for postal employees to resolve discrimination claims against the

USPS. Postal workers alleging discrimination are required to file

a "precomplaint" and consult with an EEO counselor. If the matter

raised in the precomplaint is not resolved within the established

30-day counseling period, the employee is authorized to file a

formal EEO complaint. Once the formal complaint is filed, USPS is

compelled to take action within a specified time period. After

this period expires, the employee is permitted to file suit in

United States District Court. What You Need to Know About EEO,

Publication 133, November 1999, <http://www.postaleeo.com>.

-6-

These events prompted Morales to file four Equal

Employment Opportunity (EEO) complaints with the USPS.3 Plaintiff

filed his first precomplaint on February 15, 1996, in the aftermath

of USPS's decision to alter the allotted days off for the available

distribution and window clerk position. His second EEO

precomplaint, submitted April 25, 1996, alleged that a new coffee

and lunch break policy instituted at the Caparra Heights station

unfairly discriminated against male postal employees. After the

USPS failed to respond to his first precomplaint, Morales filed a

formal EEO complaint on April 3, 1996, alleging that USPS

unlawfully retaliated against him by posting the available window

clerk position with Thursday/Sunday rest days rather than

Saturday/Sunday rest days. He subsequently filed a second formal

EEO complaint on September 5, 1996, citing the discriminatory break

policy and another episode of retaliation. Plaintiff finally left

the employ of the USPS in early September 1997, allegedly as the

result of a constructive discharge.
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B. Events underlying the claims against APWU

In 1991, long before the events at issue here, Morales

had been appointed shop steward of the Caparra Heights station by

defendant Soto's predecessor, but was removed shortly thereafter

for reasons that are unclear. Six years later, the Union elected

Soto as its new president, and Morales petitioned him repeatedly

for a second tour as shop steward. Soto capitulated, appointing

Morales to the position on January 17, 1997. However, plaintiff's

tenure ended abruptly three weeks later after Soto received

complaints that Morales was acting inappropriately toward coworkers, and abusing his union status to avenge himself on USPS

management. 

Morales alleges that his dismissal as union shop steward

was motivated by a conspiracy between USPS and APWU to remove him

from his job at the Caparra Heights station, in violation of the

Union's bylaws. Plaintiff also claims that the Union failed to

process his grievances arising from two February 1997 dismissals

from work, or take any action with respect to his constructive

discharge.

II.

Morales filed an amended complaint consolidating his

numerous allegations of wrongdoing into four counts. Count I,

entitled "Retaliation and Discrimination," alleges that USPS

unlawfully retaliated against plaintiff for filing OSHA claims, EEO

complaints, and unfair labor practice charges. Count II, entitled
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"Conspiracy," accuses the USPS and APWU of "conspir[ing] against

Plaintiff to cause his removal as Caparra Heights Shop Steward and

later on his removal from Caparra Heights Station." Count III

alleges 1) that USPS violated the collective bargaining agreement

("CBA"), and 2) that APWU breached its duty of fair representation

"by arbitrarily, capriciously, in bad faith and/or invidiously

failing to process timely Plaintiff's grievances through [USPS's]

grievance procedure." Finally, Count IV claims intentional

infliction of emotional distress arising from the "outrageous acts

and omissions, retaliatory conduct, and discrimination" perpetrated

by USPS and APWU.

As a preliminary matter, plaintiff's failure to cite any

statutory basis for relief in his amended complaint complicates our

review of his claims. However, under the liberal "notice pleading"

requirements of Rule 8 of the Federal Rules of Civil Procedure,

this deficiency is not fatal to plaintiff's case: 

A complaint need not point to the appropriate

statute or law in order to raise a claim for

relief under Rule 8 . . . . [A] complaint

sufficiently raises a claim even if it points

to no legal theory or even if it points to the

wrong legal theory as a basis for that claim,

as long as relief is possible under any set of

facts that could be established consistent

with the allegations.

Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992)

(internal quotation marks omitted); see Fitzgerald v. Codex Corp.,

882 F.2d 586, 589 (1st Cir. 1989); see also Simonton v. Runyon, 232

F.3d 33, 36-37 (2d. Cir. 2000). These omissions do, however,
4Under Article 2, Section 1 of the CBA:

The Employer and the Union agree that there shall be no

discrimination by the Employer or the Union against

employees because of race, color, creed, national origin,

sex, age, or marital status. In addition, consistent

with other provisions of this agreement, there shall be

no unlawful discrimination against handicapped employees,

as prohibited by the Rehabilitation Act.

Collective Bargaining Agreement between American Postal Workers

Union, AFL-CIO, and U.S. Postal Service; November 21, 1994 -

November 20, 1998.

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create an ambiguity as to whether Morales's claims arise solely

under the anti-discrimination clause of the CBA,4 or whether

plaintiff also intended to plead a cause of action under Title VII

of the Civil Rights Act of 1964. 

This query is not academic -- while the protections built

into the CBA parallel those of Title VII, the two remedial schemes

contain discrete exhaustion requirements that may bar their

availability to plaintiff as sources of relief. Appellees urge us

to find that Morales's amended complaint relied entirely on the

CBA, and failed to allege properly a Title VII claim. That

contention ignores both the substance and structure of Morales's

amended complaint. Not only is the complaint replete with

references to plaintiff's EEO initiatives, see infra note 5, but

the retaliation and discrimination claims are set forth in a

separate count to distinguish them from Morales's claims for

violations of the CBA. Moreover, Morales cited to Title VII both

in his opposition to summary judgment and in his appellate brief.
5On facts similar to these, the Seventh Circuit broadly

construed the plaintiff's complaint to invoke Title VII as a basis

for relief:

Although Brown's complaint does not invoke Title VII as

a basis for her claim explicitly, it does indicate that

an EEOC charge had been made and that the complaint was

filed within ninety days after receiving an EEOC right

to sue letter . . . The reference in Brown's complaint to

EEOC procedures did give the defendants some notice that

she was pursuing a federal Title VII action . . . Though

inartfully drafted, we are hesitant to judge Brown's

complaint so narrowly as to foreclose the full

adjudication of her claim on the mere failure to cite

Title VII explicitly.

Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932, 933 n.1

(7th Cir. 1988), overruled on other grounds, Donnelly v. Yellow

Freight System, Inc., 874 F.2d 402 (7th Cir. 1989). 

-10-

Therefore, we believe the more prudent course is to broadly

construe the allegations in plaintiff's amended complaint as

alleging a cause of action under both the CBA and Title VII. See

Fed. R. Civ. P. 8(f) ("All pleadings shall be so construed as to do

substantial justice."); Foster Med. Corp. Employees' Pension Plan

v. Healthco, Inc., 753 F.2d 194, 197 (1st Cir. 1985).5 With this

approach in mind, we turn to the counts of the amended complaint.

III.

A. Breach of Collective Bargaining Agreement

In accepting the recommendations of the magistrate judge,

the district court properly characterized Count III of Morales's
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amended complaint as advancing a "hybrid breach of contract and

fair representation claim." The Supreme Court has observed that

[s]uch a suit, as a formal matter, comprises

two causes of action. The suit against the

employer rests on § 301 [of the Labor

Management Relations Act], since the employee

is alleging a breach of the collective

bargaining agreement. The suit against the

union is one for breach of the union's duty of

fair representation, which is implied under

the scheme of the National Labor Relations

Act. Yet the two claims are inextricably

interdependent. To prevail against either the

company or the Union, employee-plaintiffs must

not only show that their discharge was

contrary to the contract but must also carry

the burden of demonstrating a breach of duty

by the Union.

DelCostello v. Int'l Broth. of Teamsters, 462 U.S. 151, 164-65

(1983) (internal citations and quotation marks omitted) (emphasis

added); see also Local No. 391 v. Terry, 494 U.S. 558, 563-64

(1990); Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 14 (1st Cir.

2001). The dual requirements for alleging a "hybrid claim" are

predicated on the theory that an employee working under a CBA is

ordinarily required to exhaust the grievance procedures provided in

that agreement before bringing suit. DelCostello, 426 U.S. at 163.

A rigid exhaustion requirement, however, works an injustice to the

employee "when the union representing the employee in the

grievance/arbitration procedure acts in such a discriminatory,

dishonest, arbitrary or perfunctory fashion as to breach its duty

of fair representation." Id. at 164. Under these circumstances,

an employee who has not exhausted the grievance procedures outlined
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in the CBA may nonetheless file suit against the employer if he can

demonstrate that the union breached its duty of fair

representation, such that the grievance procedures mandated by the

CBA provided no meaningful recourse. Id.

Courts conduct a tripartite inquiry to determine whether

a union breached its duty of fair representation so materially as

to render the CBA's grievance procedures inadequate. "The three

separate levels of inquiry . . . are as follows: (1) did the union

act arbitrarily; (2) did the union act discriminatorily; or (3) did

the union act in bad faith." Ooley v. Schwitzer Div., Household

Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992) (citing Air Line

Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 71-76 (1991)). "In

order to successfully defend against a motion for summary judgment

on a duty of fair representation claim, the plaintiff must point

the court to record evidence supporting any one or all of these

elements." Griffin v. Air Line Pilots Ass'n, Int'l, 32 F.3d 1079,

1083 (7th Cir. 1994). The Supreme Court has stressed that our

evaluation of any such evidence must be "highly deferential" to the

union. O'Neill, 499 U.S. at 78 (quoting Ford Motor Co. v. Huffman,

345 U.S. 330, 338 (1953)).

The deference accorded unions defending hybrid claims

imposes a heavy burden on employees like Morales alleging a breach

of the duty of fair representation. Against this backdrop, the

district court did not err in its determination that Morales's

submissions failed to provide the requisite record evidence of
6APWU's bylaws do permit deposed shop stewards to file a

written appeal within fifteen days of their removal, and provide

that "The Board of Directors will make a full investigation on the

work place or Installation and render a written decision within 15

days" of receiving the appeal. There is no indication that Morales

ever availed himself of this option. 

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"irrational" union activity falling "outside a wide range of

reasonableness." Id. Plaintiff's amended complaint and opposition

to summary judgment instead raise bare allegations that APWU 1)

violated its bylaws by perfunctorily dismissing him from his

position as shop steward, and 2) unduly delayed or failed to

process "several of plaintiff's grievances." In response, APWU's

motion for summary judgment references specific provisions in the

Union's bylaws authorizing the Union president to dismiss a shop

steward without providing any prior process.6 The exhibits

appended to APWU's summary judgment motion also include letters to

Morales meticulously documenting the progression of his various

grievances against USPS, and reflect that APWU had previously

sought and obtained time extensions from USPS to ensure that any

grievances that were delayed were not defaulted. 

In short, after reviewing the summary judgment record, we

conclude that Morales failed to proffer sufficient evidence that

the Union breached its duty of fair representation by acting

arbitrarily, discriminatorily, or in bad faith. O'Neill, 499 U.S.

at 76-77. Consequently, plaintiff fails to satisfy the first of

the dual hybrid claim requirements, see DelCostello, 426 U.S. at
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163, and we need not separately assess Morales's allegations that

USPS violated the CBA. 

B. Retaliation and Discrimination under Title VII

Adopting the recommendation of the magistrate judge, the

district court concluded that Morales's retaliation and

discrimination claims were only actionable under the collective

bargaining agreement. However, it is well settled that Title VII

of the Civil Rights Act of 1964 provides relief independent of the

remedial scheme outlined in the CBA. In Alexander v. GardnerDenver Co., 415 U.S. 36 (1974), the Supreme Court concluded that

the legislative history of Title VII manifests

a congressional intent to allow an individual

to pursue independently his rights under both

Title VII and other applicable state and

federal statutes. The clear inference is that

Title VII was designed to supplement rather

than supplant, existing laws and institutions

relating to employment discrimination. 

Id. at 48-49. The Alexander Court accordingly ruled that

plaintiffs who invoke the grievance procedures of the collective

bargaining agreement do not thereby forfeit their private right of

action under Title VII. Id. at 49. Hence, Alexander and its

progeny, see Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-

79 (1998), support the proposition that the presence of an antidiscrimination provision in a collective bargaining agreement does

not foreclose a postal employee's private right of action under

Title VII. 
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The Seventh Circuit's decision in Roman v. U.S. Postal

Service, 821 F.2d 382 (7th Cir. 1987), relied upon by the district

court, is not to the contrary. In Roman, the Postmaster of the

post office where Roman worked accused him of falsifying his

employment application form, and allegedly promised him a position

at another postal facility if he chose to resign from his current

job rather than be fired. After the Postmaster failed to deliver

on this promise, Roman filed suit in federal district court

alleging that USPS violated his procedural due process rights by

"fraudulently inducing him to resign from his employment." Id. at

384. The Seventh Circuit rejected the plaintiff's argument that

the Constitution itself furnished a right of action for his

procedural due process claim, observing that "Congress has

expressly authorized the adoption of final and binding grievance

procedures in the Postal Service collective bargaining agreements."

Id. at 386 (quoting Ellis v. U.S. Postal Service, 784 F.2d 835,

839-40 (7th Cir. 1980)). Accordingly, Roman's recourse was limited

to the procedural rights enshrined in that agreement:

Roman's allegation that the Postal Service

violated his due process rights in threatening

him and forcing him to resign does not provide

jurisdiction. Where Congress has created an

elaborate, remedial scheme which adequately

and comprehensively addresses the protection

of constitutional rights in the employment

context, an employee whose rights are

protected through that scheme cannot bring a

new, non-statutory action.

Id. at 385-86 (emphasis added). 
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However, just as Congress may limit an employee's avenues

of redress for certain constitutional claims by establishing "an

elaborate remedial scheme" that adequately addresses such claims,

it also has the power to create multiple rights of action to

redress other types of employment injuries. Thus, as the Supreme

Court ruled in Alexander, the legislative history of Title VII

reflects Congress's intent to provide employees victimized by

retaliation or discrimination with an additional statutory right of

action wholly independent of the CBA. Alexander, 415 U.S. at 48-

49. The district court therefore erred in concluding that the

collective bargaining agreement between USPS and APWU furnished

Morales's sole avenue of recourse for his retaliation and

discrimination claims.

Judicial recourse under Title VII, however, is not a

remedy of first resort. See Jensen v. Frank, 912 F.2d 517, 520

(1st Cir. 1990) ("Title VII requires exhaustion of administrative

remedies as a condition precedent to suit in federal district

court."). USPS's EEO Guidelines, promulgated pursuant to 42 U.S.C.

§ 2000e-5, prescribe a lengthy administrative process that

plaintiffs must exhaust prior to filing a Title VII action in

district court. Here, Morales argues that USPS failed to provide

any formal disposition of his two formal EEO complaints within the

established 180-day window, see 29 C.F.R. § 1614.107(c), thereby

entitling him to pursue his claims in district court. Plaintiff

buttresses his assertions with two letters from USPS formally
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dismissing his EEO complaints. Each letter informed Morales that

"[i]f you are dissatisfied with the Postal Service's final decision

in this case, you may file a civil action in an appropriate U.S.

District Court . . ." 

USPS argues on appeal that even if plaintiff may

theoretically look outside the collective bargaining agreement to

an alternative source of relief under Title VII, he forfeited his

right of action by neglecting to file any EEO complaints addressing

the vast majority of the discriminatory and retaliatory incidents

described in the amended complaint. 

We agree with USPS that Morales's Title VII cause of

action is limited to those discrimination and retaliation

allegations in his amended complaint that were previously the

subject of a formal EEO complaint. As we read the EEO dismissal

letters, this universe is limited to the following three

allegations:

(1) Morales's allegation that Job Bid #2541417 was

posted with Thursday/Sunday rest days rather than

Saturday/Sunday rest days in retaliation for

plaintiff's OSHA complaints

(2) Morales's allegation of sexual discrimination and

retaliation arising from an April 9, 1996

incident in which plaintiff's duties and

responsibilities were awarded to a female

employee and he was given window clerk duties to

perform

(3) Morales's allegation that the "coffee and lunch

breaks" policy was not applied in an equal and

nondiscriminatory matter
7Plaintiff's internal grievances against APWU are

theoretically actionable under Title VII, which provides that "[i]t

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We reject USPS's insinuation on appeal that summary

disposition of these surviving claims is appropriate at this time.

While it is within our discretion to affirm the district court's

entry of summary judgment on any ground revealed by the record,

Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184

(1st Cir. 1999), any determination of whether Morales's Title VII

claims can survive summary judgment is premature. As a consequence

of the district court's erroneous presumption that Morales's claims

were solely actionable under the CBA, no court has analyzed the

record to determine whether Morales has raised a material dispute

of fact that compels a trial on his surviving Title VII claims.

Under these circumstances, we believe the preferable practice is to

remand to the district court. See United States v. Gell-Iren, 146

F.3d 827, 831 (10th Cir. 199) ("A factual record must be developed

in and addressed by the district court in the first instance for

effective review."). However, Morales is precluded on remand from

seeking relief for a plethora of other acts of discrimination and

retaliation alleged in his amended complaint, including the

discrete acts of bullying, intimidation, and vandalism by his coworkers, his seven-day suspension for violating the USPS uniform

policy, his transfer from the Caparra Heights station, his day-long

"expulsions" from work in February 1997, his constructive

discharge, and his internal grievances against APWU.7 
shall be an unlawful employment practice for a labor organization

to exclude or to expel from its membership, or otherwise to

discriminate against, any individual because of his race, color,

religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1);

see, e.g., Thorn v. Amalgamated Transit Union, 305 F.3d 826, 831-32

(8th Cir. 2002). However, the district court correctly adopted the

magistrate judge's determination that Morales failed to exhaust the

administrative remedies provided by the Union's bylaws: 

 

Plaintiff should have exhausted the contractual remedies

provided to him as to any claim against the Union and/or

its agents which is not established as a breach of its

duty of fair representation, such as his removal from

shop steward position. He failed to exhaust internal

union appeal process.

Consequently, Morales has forfeited any Title VII claim arising

from his internal union grievances. In reaching this conclusion,

we reject as untenable Morales's complaint that he was unfairly

surprised by the magistrate judge's partial reliance on an

exhaustion rationale for disposing of his claims against APWU. The

record conclusively demonstrates that APWU put the exhaustion point

at issue throughout the litigation before the magistrate judge.

For this reason, the exhaustion arguments and supporting exhibits

raised for the first time before the district court were

inadmissible due to Morales's failure to present these materials to

the magistrate judge. See Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic

efficiencies would be frustrated and the magistrate's role reduced

to that a mere dress rehearser if a party were allowed to feint and

weave at the initial hearing, and save its knockout punch for the

second round."). 

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C. Residual Claims

Our resolution of Morales's CBA and Title VII claims

disposes of his conspiracy claim. "A civil conspiracy is a

combination of two or more persons to do an unlawful or criminal

act or to do a lawful act by unlawful means for an unlawful

purpose." Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir.

1974); see also Maryland Casualty Co. v. Hosmer, 93 F.2d 365, 366

(1st Cir. 1937). The only predicate acts cited in the amended
-20-

complaint that possibly establish a basis for conspiracy liability

are 1) APWU's removal of plaintiff as shop steward, 2) USPS's

decision to transfer plaintiff out of the Caparra Heights station,

and 3) plaintiff's alleged constructive discharge. We have

concluded, however, that Morales failed to preserve a right of

action for any of these three alleged offenses. Morales's

surviving Title VII claims, see supra, implicate only unilateral

decisions or policies of USPS that cannot form the gravamen of a

civil conspiracy claim. See Ammlung, 494 F.2d at 814. 

With regard to Morales's emotional distress claim, even

assuming the truth of the surviving Title VII allegations, USPS's

conduct does not rise to the level of "extreme and outrageous,"

"beyond all possible bounds of decency," or "utterly intolerable in

a civilized community." Santiago-Ramirez v. Sec'y of Dept. of

Defense, 62 F.3d 445, 448 (1st Cir. 1995). Consequently,

plaintiff's intentional infliction of emotional distress claim

fails as a matter of law.

IV.

We affirm the judgment entered for defendants on counts

II, III, and IV of Morales's amended complaint. We vacate the

judgment entered on count I and remand for proceedings not

inconsistent with this decision. All parties shall bear their own

costs.

So ordered.