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EEOC v. BCI Coca-Cola Bottling Co./Opinion of the Court

[p478] McCONNELL, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") asks us to reverse the district court's decision granting summary judgment to BCI Coca-Cola Bottling Co. of Los Angeles ("BCI") on a claim of race discrimination arising from the termination of a black employee, Stephen Peters. It is undisputed that the human resources official who made the decision to terminate Mr. Peters worked in a different city, had never met Mr. Peters, and did not even know that he was black. In making the decision to terminate, however, the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peters' race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace. Because we find that genuine issues of material fact exist as to whether BCI's proffered explanation for the termination is a pretext for racial discrimination, we reverse the decision of the district court and remand for further proceedings.

I. Factual and Procedural Background
Stephen Peters worked as a merchandiser for BCI at its Albuquerque, New Mexico facility from May 1995 through October 2001. More than 60% of the 200 employees at the Albuquerque facility were Hispanic, while fewer than 2% were black. Merchandisers are hourly employees responsible for placement of Coca-Cola products in retail outlets such as grocery stores. Their job duties include arranging, cleaning, and rotating product displays and promotional materials. They generally work five days a week, with two days off, but because grocery stores remain open seven days a week, merchandisers' schedules are staggered and they must occasionally work overtime to cover shifts. As the most senior merchandiser in the district, Mr. Peters had the most desirable schedule, with Saturdays and Sundays off. He was generally regarded as a "good merchandiser," and in 2001 he received a certificate from BCI thanking him for five years of "service, dedication and commitment to the Company." App. 143, 151. The certificate specifically thanked him for "being a team player." Id. at 151.

Mr. Peters reported to Cesar Grado, a District Sales Manager, who is Hispanic. On a day-to-day basis, Mr. Peters was supervised by a salaried Account Manager, Jeff Katt, who is white. Although both Mr. Katt and Mr. Peters both reported directly to Mr. Grado, who handled all scheduling and route assignments for merchandisers and account managers in his district, it was common for merchandisers to call in sick to the account manager who supervised their work. Mr. Grado was responsible for monitoring and evaluating the employees under his supervision, but was not authorized to discipline or terminate anyone. Instead, Mr. Grado had broad discretion to "bring facts relating to the matter to the attention of [the] Human Resources Department," which was ultimately responsible for deciding which company policy applied and whether to take any disciplinary action. App. 34. The [p479]  highest-ranking human resources official in the Albuquerque office was Sherry Pederson. Ms. Pederson's supervisor, Pat Edgar, worked 450 miles away in BCI's Phoenix, Arizona office. Neither Ms. Pederson nor Ms. Edgar had met or even heard of Mr. Peters until September 28, 2001, four days before his termination.

The weekend of September 29-30, 2001, Mr. Grado faced a serious scheduling crunch. Several stores in his district were running ads for Coca-Cola products, necessitating an extra merchandiser for the weekend, and on the morning of Friday, September 28 he learned that another merchandiser who ordinarily worked as a "floater" to cover extra shifts had suffered an on-the-job injury and would be out for a week. Sometime between midday and 2:00 pm on Friday, Mr. Grado directed Mr. Katt to direct Mr. Peters to work on Sunday, September 30. When Mr. Katt relayed the instruction, Mr. Peters responded, "I can't do it. I've got plans." Id. at 67. According to Mr. Grado, when Mr. Katt recounted the conversation he added that Mr. Peters said he "might call in sick." Id. at 35. Both Mr. Peters and Mr. Katt, however, deny that Mr. Peters said anything about being sick during that conversation, and Mr. Katt denies passing along any such comment to Mr. Grado.

Frustrated, Mr. Grado decided to seek advice from the Human Resources Department. Ms. Pederson was out of the office on Friday afternoon, so Mr. Grado called Ms. Edgar in Phoenix. Mr. Grado said that he expected Mr. Peters was going to refuse to come to work on Sunday, and asked whether he could require Mr. Peters to come in on his day off. Specifically, he told Ms. Edgar that Mr. Peters planned to call in sick on Sunday. Ms. Edgar found that prospect "unacceptable" because, under BCI policy, an employee may not call in sick two days in advance. Id. at 23. She advised Mr. Grado to "find out what the situation was" and, unless Mr. Peters had a "compelling reason" why he could not come to work, to order Mr. Peters to work on Sunday. Id. She told Mr. Grado to characterize the instruction as a "direct order" and to say that failure to comply would amount to insubordination, which is grounds for termination. Id.

Mr. Grado then paged Mr. Peters, who called immediately. Mr. Grado ordered Mr. Peters to work on Sunday, and Mr. Peters responded that he had plans. Mr. Grado says that he asked Mr. Peters what his plans were, but that Mr. Peters angrily responded that his plans were "none of [Mr. Grado's] business," and started yelling. Mr. Peters says that Mr. Grado never asked his plans; instead, he simply told Mr. Grado that he had plans and that he had not been feeling well all week. They both agree, however, that Mr. Grado said, "I'm not asking you to come to work, I'm telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination." Id. at 58. They also agree that the conversation ended with Mr. Peters telling Mr. Grado, "[D]o what [you] got to do and I'll do what I got to do." Id. Mr. Peters claims that he intended this statement as a way to end the conversation without a confrontation. Mr. Grado interpreted it as open defiance, and a firm intention to disobey the order to come to work on Sunday.

[p480] Late in the afternoon on Friday, Mr. Grado again contacted Ms. Edgar in Phoenix. He related "exactly what had happened": that he had asked Mr. Peters to describe his plans, but that Mr. Peters had refused to say what his plans were, had angrily said his plans were "none of [Mr. Grado's] business," and had told Mr. Grado to "do what he needed to do." Id. at 24, 65. Ms. Edgar determined at that time that Mr. Peters' conduct in that conversation, standing alone, amounted to insubordination warranting termination. Nonetheless, because it was late in the day on Friday, she did not make the decision to terminate Mr. Peters that day.

In fact Mr. Peters was sick. On the evening of Saturday, September 29 he cancelled his plans for Sunday and went to an urgent care clinic, complaining of a headache, sinus pain, and cough. A doctor diagnosed him with a sinus infection, gave him a prescription, and directed him not to return to work until Monday, October 1. That night Mr. Peters phoned Mr. Katt and explained that he had just come from the doctor's office and probably could not work Sunday because of illness. Mr. Katt "said he didn't have any problem with that," but asked Mr. Peters to call in the morning if he felt well enough to work. Id. at 197. After hanging up, Mr. Katt repeatedly tried to page Mr. Grado to describe the conversation, but for some reason Mr. Grado never responded to the pages.

Mr. Peters did not work on Sunday, September 30. Mr. Katt and Mr. Grado personally worked routes that day to ensure coverage. Mr. Peters returned to work as usual on Monday morning.

On Monday, October 1, Ms. Edgar held a series of phone calls with Ms. Pederson (who was back in the office) and Mr. Grado concerning Mr. Peters' conduct. Mr. Grado explained that Mr. Peters had not come to work on Sunday. Also, Ms. Pederson pulled Mr. Peters' file and found a Disciplinary Status Notice describing an incident in 1999 where Mr. Peters received a two-day disciplinary suspension and "final warning" for insubordination from a different supervisor. During that incident, the supervisor had called Mr. Peters on a Friday morning and ordered him to work on his day off that weekend. Mr. Peters refused and, according to the status notice, "was rude and unprofessional in his conduct." Id. at 53. He was warned that "[a]ll Coca-Cola employees must . . . follow direct orders from their supervisors. Failure to comply is considered a direct act of insubordination . . . . subject to disciplinary action up to and including termination." Id. at 54. Although Ms. Edgar did not know it, because the file provides no further details, Mr. Peters had good reason to be upset during the 1999 incident. He had learned earlier that week that his fiancee's son--whom he had raised as his own son for years--had been killed in a car accident. He could not work that Saturday because he had to serve as a pallbearer at the funeral. His supervisor told him that the funeral was no excuse for refusing a direct order because "he was not your biological son." Id. at 147.

By the end of the day on Monday, Ms. Edgar made a final decision to terminate Mr. Peters for insubordination. In a declaration prepared as part of this litigation in 2004, Ms. Edgar said that her decision was based "[f]irst and foremost" on "the conduct of Mr. Peters toward Mr. Grado on Friday." Id. at 26. The 1999 incident from the file reinforced for Ms. Edgar that Mr. Peters had a track record of insubordination, and also contributed to the decision. She emphasized that "Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed in context [p481]  with his exchange with Mr. Grado on Friday . . . as the fulfillment of Mr. Peters [sic] stated intention to defy a direct order from Mr. Grado." Id. at 27. Ms. Edgar claims that she had already learned, in a conversation with Mr. Grado, that Mr. Peters had been excused by Mr. Katt from work on Sunday, but that this information did not affect her decision. She found Mr. Peters' "alleged sickness" to be "highly suspect," and "found it particularly suspicious that Mr. Peters chose to call in sick to Mr. Katt, rather than Mr. Grado, given the fact that Mr. Peters had been warned by Mr. Grado the day before that if he did not come to work he would be subject to termination." Id. at 27.

Mr. Katt's deposition provides a different account of these events. Mr. Katt says that he did not tell Mr. Grado that Mr. Peters phoned in sick until Monday evening at 6:00 pm, during a discussion of the upcoming week's schedule. Mr. Katt asked which route Mr. Peters was going to cover, and Mr. Grado replied, "I think I'm going to terminate him." Id. at 203. Mr. Katt asked, "You do know he called in, he called in sick to me?" Id. at 204. Mr. Grado "kind of paused" and asked, "Why didn't you tell me that earlier?" Id. Mr. Katt replied, "I did. I tried to page you." Id. According to Mr. Katt, this exchange took place Monday evening, after Ms. Edgar already made her decision to terminate Mr. Peters.

Mr. Peters was terminated Tuesday morning, October 2, at a meeting attended by Mr. Peters, Mr. Grado, Mr. Grado's supervisor Don Bateluna, and Ms. Peterson. Mr. Grado began the discussion by announcing, "You've been terminated for insubordination, for not showing up for work." Id. at 193. Mr. Peters was promptly presented with a termination paper. That document said nothing about Mr. Peters raising his voice or refusing to explain his plans during the phone conversation on Friday. Instead, the notice states that Mr. Peters had been given a direct order to work on Sunday, and had been warned that "failure to comply with the directive would be considered insubordination and would result in termination." Id. at 41. It concludes, "You did not report to work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination." Id. The "violation date" listed is Sunday, September 30, the day Mr. Peters was supposed to come to work, not Friday, September 28, the day of the conversation with Mr. Grado. Id.

Mr. Peters explained that he had not reported to work because he was sick. He said that he had called Mr. Katt and had received permission to miss work that day "because I went to the doctor." Id. at 193. He protested that "[n]either one of [you] asked me why I didn't show up for work." Id. Mr. Peters says that after he told them about the call to Mr. Katt, "they all got quiet. And when I left they shut the door and was [sic] in there talking." Id.

Shortly after that meeting, Ms. Pederson called Ms. Edgar and asked whether she knew Mr. Peters was black. Neither Ms. Pederson nor Ms. Edgar had ever met Mr. Peters, and neither knew that he was black until the meeting on Tuesday morning. Apparently Ms. Pederson's inspection of the file was so cursory that she did not even learn basic information such as Mr. Peters' race--which was noted on several documents in his personnel file--even as she was taking steps toward terminating him. Ms. Edgar maintains that "[r]ace played no part whatsoever in my decision to terminate the employment of Stephen Peters." Id. at 28. Indeed, part of her job as a human resources official was to conduct affirmative action and equal employment opportunity training sessions for BCI management.

[p482] On October 11, 2001, Mr. Peters filed a charge with the EEOC alleging that his termination was the result of racial discrimination. The EEOC filed suit on his behalf in federal court on December 30, 2002. Its theory was that, even if Ms. Edgar was the sole decisionmaker and she did not know that Mr. Peters was black, "Grado harbored racial animus toward African American employees and . . . this bias was properly imputed to BCI because of Grado's substantial involvement in the termination process as Peters' supervisor and Edgar's sole source of information about the events on which BCI alleges the termination was primarily based." Aplt. Br. 12. Relying principally on cases from other circuits, the EEOC characterized this claim as arising under a "cat's paw" or "rubber stamp" theory, whereby an employer may be liable for the acts of a biased subordinate, even if that subordinate is not the formal decisionmaker.

In support of its allegations concerning Mr. Grado's racial bias, the EEOC presented affidavits from a number of other BCI employees. Three other merchandisers who worked under the supervision of Mr. Grado--two black and one Hispanic--stated that Mr. Grado treated black employees worse than employees of other races. App. 181 (affidavit of James Young) ("African American employees were treated worse by Cesar Grado as compared to non-African American employees."); id. at 183 (affidavit of Bryan Esquibel) ("If Grado did not like you, he treated you badly; but African American employees were treated even worse."); id. at 185 (affidavit of Michael Wilson) ("It is my belief that Cesar Grado dislikes African Americans based on his treatment of me during my employment at [BCI]."). All three cited specific examples of incidents in which Mr. Grado subjected black employees to greater scrutiny and more serious discipline than Hispanic employees. Mr. Wilson, who is black, says that Mr. Grado "continually demeaned me and threatened to replace me" but always "treated Hispanic Merchandisers with respect." Id. at 185.

Mr. Wilson also "recall[ed] many race-based remarks made to me by Cesar Grado during work hours." Id. at 184. According to Mr. Wilson, Mr. Grado told jokes about black men dating Anglo women, and stated that "Black guys [do] not look good in trucks, they should drive Cadillacs." Id. at 185. One day, while watching Mr. Wilson clean an outdoor vending machine during the winter, Mr. Grado urged him to hurry because "brothers don't like the cold." Id. (internal quotation marks omitted). Also, Mr. Katt says that after the termination, during a drive to a work site, Mr. Grado asked, "Did you hear Steve is trying to sue me?" Id. at 212. Although he is less than "100 percent clear" about his recollection of the conversation, Mr. Katt says that Mr. Grado may have used the word "nigger" or a comparable racial epithet to describe Mr. Peters during that conversation. Id.

The EEOC also compared Mr. Grado's treatment of Mr. Peters with his treatment of Hispanic employees under similar circumstances. On one occasion, for example, Mr. Grado was short merchandisers during a busy weekend, so he directed Mr. Katt to direct Monica Lovato, a Hispanic merchandiser, to work one of her days off. Ms. Lovato planned to celebrate her birthday that weekend, and she told Mr. Katt she wanted both days off, but Mr. Katt insisted and tried to accommodate her schedule as much as possible. That weekend Ms. Lovato never showed up to work as directed, even after Mr. Katt paged her repeatedly. When he was informed that Ms. Lovato had disobeyed an order to come into work, Mr. Grado never inquired about her reasons. Instead, Mr. Grado [p483]  remarked, "You can't make somebody work one of their days off." Id. at 211. Ms. Lovato never received any discipline--not even a warning--as a result of the incident.

The district court granted summary judgment in favor of BCI. Operating within the McDonnell Douglas burden-shifting framework, it held that the EEOC had established a prima facie case of discrimination, but that BCI had articulated a legitimate nondiscriminatory reason for the termination: "his insubordinate conduct toward Grado." Mem. Op. & Order, 2004 U.S. Dist. LEXIS 28277 at *33. It held that no genuine issue of material fact exists as to whether this proffered explanation was pretextual because the pretext inquiry must focus exclusively on whether Ms. Edgar honestly believed that Mr. Peters was guilty of insubordination on Friday, September 28. Citing our statement in Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1231 (10th Cir. 2000), that pretext must be evaluated by "look[ing] at the facts as they appear to the person making the decision to terminate plaintiff," the district court concluded that any factual disputes concerning the Friday conversation were immaterial because Ms. Edgar correctly applied BCI's policy concerning insubordination to the facts as she understood them. Mem. Op. & Order 24-25, 2004 U.S. Dist. LEXIS at *39-40. The district court found the termination letter ("You did not report to work on Sunday 9-30-01, therefore your employment [is] being terminated for insubordination") "consistent" with Ms. Edgar's declaration that the sole act of insubordination for which he was terminated was his conduct during the call on Friday. Id. at 26. According to the district court, the phone call and the failure to come to work formed part of the same "chain of events," and no reasonable jury could find that BCI's explanations were shifting or inconsistent.

In evaluating the EEOC's "rubber stamp" or "cat's paw" claim, the district court acknowledged that the EEOC had raised a genuine issue of fact as to whether Mr. Grado harbored racial bias against African Americans. It noted, however, that other circuits' "rubber stamp" cases "involved situations in which a decision-maker accepted the recommendations of a biased supervisor without conducting an independent investigation." Id. at 29 (emphasis in original). Here, Mr. Grado never officially recommended that Mr. Peters be terminated; he merely provided information to Ms. Edgar, who made the final decision. Also, according to the district court, Ms. Edgar did conduct an independent investigation: she asked Ms. Pederson to pull Mr. Peters' personnel file. The issue of Mr. Grado's bias therefore was not material.

The district court granted BCI's motion for summary judgment, and the EEOC now appeals. We review the district court's decision de novo, viewing the evidence in the light most favorable to the EEOC and drawing all reasonable inferences in its favor. Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197, 1207 (10th Cir. 2006). We will affirm "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" and BCI is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

II. Discussion
Under the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of racial discrimination, which "consists of a showing that (1) the plaintiff belongs to some protected class, (2) the plaintiff was qualified for the position or benefit at issue, (3) [p484]  the plaintiff suffered an adverse employment action, and (4) the plaintiff was treated less favorably than others (e.g., the position at issue remained open after the adverse employment action)." Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004). BCI concedes that the EEOC has established a prima facie case here: Mr. Peters is black, he was qualified for his job as a merchandiser, he was terminated, and the position remained open.

The burden therefore shifts to BCI to articulate a legitimate, nondiscriminatory reason for the employment action. Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005). The EEOC concedes that BCI has articulated a nondiscriminatory reason for its termination of Mr. Peters: his insubordination on Friday, September 28 during the phone conversation with Mr. Grado. Significantly, BCI maintains that Mr. Peters' absence on Sunday, September 30 had nothing to do with the decision, except insofar as it confirmed that Mr. Peters' statements on Friday were insubordinate. App. 27 ("Mr. Peters was not terminated because he did not show up for work on Sunday . . . .").

The sole issue on appeal is whether the EEOC has made a sufficient showing that BCI's proffered explanation is a pretext for race discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.C.t. 1817, 36 L. Ed. 2d 668 (1973). Here, it is undisputed that Ms. Edgar, who formally made the termination decision, worked in a different city and had no idea that Mr. Peters is black. She therefore could not have acted for racially discriminatory reasons. For the EEOC to prevail, it must make not only a factual showing that Mr. Grado harbored racial animus toward black employees, but also a convincing legal claim that his racial animus should be imputed to BCI despite the fact that Mr. Grado had no power to terminate anyone.

A. Subordinate Bias Liability
Other courts have recognized claims under Title VII based on the bias of a subordinate, often using the terms "cat's paw" or "rubber stamp" to describe the theory. The "cat's paw" doctrine derives its name from a fable, made famous by La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. See Fables of La Fontaine 344 (Walter Thornbury trans., Chartwell Books 1984). As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Id. Today the term "cat's-paw" refers to "one used by another to accomplish his purposes." Webster's Third New International Dictionary Unabridged 354 (2002). In the employment discrimination context, "cat's paw" refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998). The "rubber stamp" doctrine has a more obvious etymology, and refers to a situation in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288 (4th Cir. 2004) (en banc). Our sister circuits overwhelmingly have endorsed some version of these doctrines. See Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir. 2005); Hill, 354 F.3d at 290; Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999); ''Griffin v. Wash. Convention Ctr.'', 330 U.S. App. D.C. 81, 142 F.3d 1308, 1311-12 (D.C. Cir. 1998); [p485] Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir. 1998); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996); Abrams v. Lightolier Inc., 50 F.3d 1204, 1213-14 (3d Cir. 1995); Stacks v. S.W. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994);  Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.) (inaugurating the descriptor "cat's-paw" for this category of claim).

Although this Court has not yet had occasion to find for a plaintiff on a subordinate bias claim, we have strongly signaled our endorsement of the theory. We have stated that "under certain circumstances, a defendant may be held liable for a subordinate employee's prejudice even if the manager lacked discriminatory intent." English v. Colo. Dep't of Corrs., 248 F.3d 1002, 1011 (10th Cir. 2001). Specifically, we have described a "rubber stamp" theory of liability, noting that "[t]o recover under this theory, the plaintiff must show 'that the decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee.'" Id. (quoting Stimpson, 186 F.3d at 1332) (alteration in original). Twice we have held that a plaintiff could not prevail because the decisionmaker had conducted an independent investigation of the facts, rather than relying entirely on the recommendation of the biased subordinate. ''See Kendrick v. Penske Transp. Servs., Inc.,'' 220 F.3d 1220, 1231-32 (10th Cir. 2000) (finding it "[i]mportant[]" that "in the course of his investigation" the decisionmaker asked the employee "to give his version of the exchange," but the employee declined to do so); English, 248 F.3d at 1011 (noting that the decisionmaker met twice with the employee and his attorney, and specifically asked for evidence rebutting or mitigating the findings of the allegedly biased subordinates). But we have described the plaintiffs' underlying theory of liability as "correct." English, 248 F.3d at 1011.

These subordinate bias theories comport with the basic agency principles incorporated by statute into Title VII. For purposes of Title VII, the term "employer" includes not only any "person engaged in an industry affecting commerce" but "any agent of such a person." 42 U.S.C. § 2000e(b). Although that language "surely evinces an intent to place some limits on the acts of employees for which employers are to be held responsible," ''Meritor Sav. Bank, FSB v. Vinson,'' 477 U.S. 57, 72, 106 S.C.t. 2399, 91 L. Ed. 2d 49 (1986), employers may be vicariously liable for the actions of their employees--even intentional torts outside the scope of their employment--if the employee "'was aided in accomplishing the tort by the existence of the agency relation,'" Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.C.t. 2257, 141 L. Ed. 2d 633 (1998) (quoting Restatement (Second) of Agency § 219(2)(d) (1958) [hereinafter Restatement]). In Ellerth, which involved a hostile work environment claim, the Supreme Court held that "a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer." Id. at 762. Citing with approval the seminal "cat's paw" opinion by Judge Posner, the Court seemed unconcerned with the possibility that the "tangible employment decision[]" might "be subject to review by higher level supervisors." Id. (citing Shager, 913 F.2d at 405). The "aided by the agency relation" standard applies even more clearly to subordinate bias claims, such as "cat's paw" or "rubber stamp" claims, because the allegedly biased subordinate accomplishes his discriminatory goals by misusing the authority granted to him by the employer--for example, the authority to monitor performance, report disciplinary infractions, and recommend employment actions. See Restatement § 219(2) cmt. e (explaining [p486]  that the "aided by the agency relation" standard applies in situations where "the servant may be able to cause harm because of his position"); ''cf. Faragher v. City of Boca Raton'', 524 U.S. 775, 802-05, 118 S.C.t. 2275, 141 L. Ed. 2d 662 (1998) (contemplating vicarious liability based on abuse of authority by supervisors, but emphasizing that the "aid" in the "aided by the agency relation" formula must amount to more than access to a pool of potential victims and "the unspoken suggestion of retaliation").

Holding employers accountable for the actions of biased subordinates also advances the purposes of Title VII. It should go without saying that a company's organizational chart does not always accurately reflect its decisionmaking process. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52, 120 S.C.t. 2097, 147 L. Ed. 2d 105 (2000) (finding that the bias of a supervisor, the husband of the formal decisionmaker, could be imputed to the company because the supervisor "was the actual decisionmaker" and was "principally responsible for petitioner's firing"); ''Russell v. McKinney Hosp. Venture,'' 235 F.3d 219, 227 (5th Cir. 2000) (noting that "courts will not blindly accept the titular decisionmaker as the true decisionmaker"). A biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class by recommending discharge or by selectively reporting or even fabricating information in communications with the formal decisionmaker. Recognition of subordinate bias claims forecloses a strategic option for employers who might seek to evade liability, even in the face of rampant race discrimination among subordinates, through willful blindness as to the source of reports and recommendations. Id. n.13 (holding that employers may not insulate themselves from Title VII claims simply "by ensuring that the one who performed the employment action was isolated from the employee"). Indeed, such claims have the salutary effect of encouraging employers to verify information and review recommendations before taking adverse employment actions against members of protected groups--particularly if, as we have held, an employer can escape liability entirely by performing an independent investigation. See English, 248 F.3d at 1011. Construing the definition of an "employer" to permit subordinate bias claims therefore serves Title VII's "deterrent purpose." See Ellerth, 524 U.S. at 764 (noting that the extent of employer liability under Title VII should not depend exclusively on common-law agency principles, but also should encourage employer procedures that prevent discriminatory actions).

Despite broad support for some theory of subordinate bias liability, our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate "possessed leverage, or exerted influence, over the titular decisionmaker." See Russell, 235 F.3d at 227. On this view, "summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action." ''Dey v. Colt Constr. & Dev. Co.,'' 28 F.3d 1446, 1459 (7th Cir. 1994) (citing Shager, 913 F.2d at 405). This standard apparently contemplates that any "influence," the reporting of any "factual information," or any form of "other input" by a biased subordinate renders the employer liable so long as the subordinate "may have affected" the employment action. Such a weak relationship between the subordinate's actions and the ultimate employment decision [p487] improperly eliminates a requirement of causation. See Ellerth, 524 U.S. at 745 (construing Title VII "to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority" (emphasis added)). When a biased subordinate merely plays a peripheral role, it cannot be said that he has "accomplish[ed]" a tortious act and "cause[d] harm" as required under agency law principles and, accordingly, under Title VII. Restatement § 219(2)(d) & cmt. e; see also id. cmt. a ("Rationale of liability") ("The assumption of control is a usual basis for imposing tort liability when the thing controlled causes harm."). Moreover, a lenient "may have affected" standard that punishes employers for any "input"--no matter how minor--weakens the deterrent effect of subordinate bias claims by imposing liability even where an employer has diligently conducted an independent investigation.

At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises "substantial influence" or plays a "significant" role in the employment decision. Hill, 354 F.3d at 291. Taking its cue from the Supreme Court's statements in Reeves that "petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker" and was "principally responsible" for his firing, Reeves, 530 U.S. at 151-52, the Fourth Circuit held that these formulations mark "the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer." Hill, 354 F.3d at 289. On this view, the decisionmaker must be a "cat's paw" so completely beholden to the subordinate "that the subordinate is the actual decisionmaker." Id. at 290. The Fourth Circuit's strict approach makes too much of the phrase "actual decisionmaker" in Reeves; the Court was describing what the petitioner's evidence showed, not prescribing the "outer contours" of liability. See Reeves, 530 U.S. at 151-52 (using the phrases "actual decisionmaker" and "principally responsible" only in Part III.B, which begins, "Applying this standard here . . ."). The Fourth Circuit's peculiar focus on "who is a 'decisionmaker' for purposes of discrimination actions," Hill, 354 F.3d at 286, seems misplaced. The word "decisionmaker" appears nowhere in Title VII. Instead, the statute imposes liability for discrimination by employers and their agents, 42 U.S.C. § 2000e(b), which in accordance with agency law principles includes not only "decisionmakers" but other agents whose actions, aided by the agency relation, cause injury. Ellerth, 524 U.S. at 760. The Fourth Circuit's standard also undermines the deterrent effect of subordinate bias claims, allowing employers to escape liability even when a subordinate's discrimination is the sole cause of an adverse employment action, on the theory that the subordinate did not exercise complete control over the decisionmaker.

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach as "inconsistent with the normal analysis of causal issues in tort litigation." Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004). To prevail on a subordinate bias claim, a plaintiff must establish more than mere "influence" or "input" in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. Id. This standard comports with the agency law principles that animate the statutory definition of an "employer." See Restatement § 219 (describing the scope of a master's liability "for the torts of his servants" and thereby incorporating standard [p488]  tort concepts like causation). Both the Supreme Court and this Court require a comparable causal connection as part of analogous workplace discrimination claims. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 272, 121 S.C.t. 1508, 149 L. Ed. 2d 509 (2001) (requiring a "causal connection" between the plaintiff's protected activities and the adverse employment action in a Title VII retaliation claim); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994) (requiring a "causal nexus" between allegedly discriminatory workplace statements and the termination decision in an ADEA claim). We reaffirm our earlier decisions holding that, because a plaintiff must demonstrate that the actions of the biased subordinate caused the employment action, an employer can avoid liability by conducting an independent investigation of the allegations against an employee. English, 248 F.3d at 1011. In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated. Indeed, under our precedent, simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory. Kendrick, 220 F.3d at 1231-32. Employers therefore have a powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class.

Finally, we address the district court's conclusion that an employer may be liable on a subordinate bias theory only if the decisionmaker receives and approves an explicit recommendation to terminate an employee. Regrettably, subordinate bias cases have suffered from an abundance of vivid metaphors. The Fourth Circuit, for example, seems to have taken the "cat's paw" metaphor too literally in deriving its total-control-over-the-actual-decision standard. Lust, 383 F.3d at 584. Likewise, the district court in this case seems to have taken the "rubber stamp" metaphor too literally, requiring that an explicit recommendation must cross the desk of the decisionmaker, regardless of whether the subordinate's discriminatory actions in fact caused the termination. That limitation of subordinate bias claims not only runs counter to the fairly broad "aided by the agency relation" principle embodied in Title VII, but would leave employees unprotected so long as a subordinate stops short of mouthing the words "you should fire him," in person or on paper, to the decisionmaker. Stripped of their metaphors, subordinate bias claims simply recognize that many companies separate the decisionmaking function from the investigation and reporting functions, and that racial bias can taint any of those functions. We see no reason to limit subordinate bias liability to situations that closely resemble the "cat's paw," "rubber stamp," "conduit," "vehicle," or other metaphors that imaginative lawyers and judges have developed to describe such claims.

With these principles in mind, we turn to BCI's decision to terminate Mr. Peters.

B. The Subordinate Bias Claim in this Case
The EEOC argues that BCI's proffered explanation for its termination decision is pretextual. To survive summary judgment on a subordinate bias theory, the plaintiff must first establish a genuine issue of material fact concerning the bias of the subordinate. It must then establish genuine issues of material fact as to whether the proffered reason for the employment action is pretextual, which in a subordinate bias claim requires the plaintiff to demonstrate a causal relationship between the subordinate's actions and the employment decision.

[p489]

1. Mr. Grado's Racial Bias
The district court held, and we agree, that the EEOC has raised a genuine issue of fact concerning Mr. Grado's racial animus. In general, "isolated racial comments" are insufficient to establish pretext unless they "can somehow be tied to the employment actions disputed in the case at hand." Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000) (internal quotation marks omitted). Nonetheless, at the summary judgment stage "all rational inferences from the evidence must be made in favor of the party opposing the summary judgment motion." Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001). In Ortiz, we held that evidence of discrimination in employment decisions affecting other workers "could support an inference that the decision makers harbored a bias against Hispanics which might have affected other decisions, including the decisions adverse to plaintiff." Id. A plaintiff also "may show pretext 'by providing evidence that he was treated differently from other similarly situated, nonprotected employees who violated work rules of comparable seriousness,'" provided the "similarly situated" employee shares the same supervisor, is subject to the same performance standards, and otherwise faces comparable "relevant employment circumstances." Green v. New Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005) (quoting Kendrick, 220 F.3d at 1232).

In this case, the EEOC has produced sufficient evidence to create a jury question concerning Mr. Grado's racial animus. Mr. Wilson claims that Mr. Grado directed "many race-based remarks," and offered three examples of racial jokes and put-downs. App. 184-85. In his affidavit, Mr. Katt says that Mr. Grado may have used a racial epithet to describe Mr. Peters in the immediate aftermath of the termination and lawsuit. Id. at 212. These comments may have been infrequent, but they certainly were not "isolated": they were directed at other black merchandisers under Mr. Grado's supervision, suggesting a pattern of racial bias in disciplinary matters that could have affected Mr. Grado's conduct with respect to Mr. Peters' termination, and in one case concerned Mr. Peters himself.

In addition, three other merchandisers--two black and one Hispanic--submitted affidavits giving specific examples of Mr. Grado's disparate treatment of black and Hispanic merchandisers. Mr. Young claims that Mr. Grado "nit-pick[ed] my work" and "constantly threatened to change my days off and to change my route," but "did not . . . treat non-African American employees in this manner." App. 181. He recalls being threatened with a schedule change for leaving the back room of one of his stores "a bit messy," while Mr. Grado tolerated a non-black merchandiser's "very messy" back room "many times." Id. Mr. Esquibel [p490]  named six Hispanic employees who were not fired after disobeying company directives. Id. at 183. Mr. Wilson says that Mr. Grado was "unusually picky" with black merchandisers, "often calling us back to stores that had been serviced to redo some minor detail, while the Hispanic Merchandisers were not subject to this same level of scrutiny." Id. at 185. Broadly, he claims that Mr. Grado "treated Hispanic Merchandisers with respect" but "continually demeaned me and threatened to replace me." Id.

Most importantly, the EEOC produced evidence of Mr. Grado's unfazed response to the incident involving a Hispanic merchandiser, Ms. Lovato. Like Mr. Peters, Ms. Lovato reported to Mr. Grado and was directed to work one of her days off. Like Mr. Peters, she failed to come to work, in direct violation of her instructions and in spite of considerable efforts by Mr. Katt to come to accommodate her schedule. Unlike Mr. Peters, who was fired two days later, Ms. Lovato received no discipline whatsoever as a result of the incident, with Mr. Grado reportedly saying, "You can't make somebody work one of their days off." Id. at 211. To be sure, there are factual differences between these incidents: Ms. Lovato received all of her orders through Mr. Katt whereas Mr. Peters spoke to Mr. Grado directly, and Ms. Lovato initially acquiesced in the orders (before disobeying them) whereas, according to Mr. Grado, Mr. Peters initially behaved in a defiant manner and announced an intention to disobey the orders (before being excused from work). They are similar enough, however, that in light of the dramatic difference between Mr. Grado's actions in each case, as well as the other evidence of discriminatory conduct, a reasonable jury could find the situations comparable and infer that racial animus played a role in Mr. Peters' treatment.

We do not necessarily believe that each of the incidents recounted above would support a charge of discrimination in isolation, but taken as a whole, this evidence of racial comments and disparate treatment of black merchandisers creates a genuine issue of fact regarding Mr. Grado's racial bias.

2. Pretext and Causation
To show that an employer's proffered nondiscriminatory reason for an employment action is pretextual, a plaintiff must produce evidence of "'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. GE Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). Because the EEOC's pretext argument depends in part on a subordinate bias theory, it must establish a genuine issue of material fact as to whether Mr. Grado's bias translated into discriminatory actions that caused Mr. Peters' termination.

BCI now maintains that it fired Mr. Peters solely because of his defiant conduct on the phone with Mr. Grado on Friday, and that "Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed . . . as the fulfillment of [his] stated intention to defy a direct order from Mr. Grado." App. 27. On this theory, missing work on Sunday merely confirmed that Mr. Peters' statements on Friday were insubordinate, and did not serve as a basis for dismissal. Yet the first explanation provided by Mr. Grado at the Tuesday morning meeting was, "You've [p491]  been terminated for insubordination, for not showing up for work." Id. at 193 (emphasis added). The Disciplinary Status Notice unequivocally states that the failure to show up for work on Sunday was the act of insubordination: "You did not report to work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination." Id. at 41. That document lists Sunday, not Friday, as the date of the violation that prompted the termination, indicating that the act of insubordination was the failure to come into work, not Mr. Peters' attitude during the earlier phone call. Indeed, on October 16, 2001, just two weeks after the termination, Ms. Pederson filed paperwork with the New Mexico Department of Labor stating that "Stephen was told by Cesar Grado that if he didn't show up, it would be considered insubordination." Id. at 165 (emphasis added). When asked to describe the "final incident that caused the discharge," Ms. Pederson wrote, "Stephen did not show up for work on 9/30." Id. Only later did BCI characterize its decision to fire Mr. Peters as hinging on his defiant conduct over the phone, rather than on his absence.

A jury might reasonably conclude that BCI's original explanation, that Mr. Peters was fired because he failed to show up for work on Sunday, was pretextual because Mr. Peters was excused from work that day. Mr. Peters was in fact sick, had visited an urgent care clinic, and had been diagnosed with a sinus infection and directed not to work until Monday. He phoned Mr. Katt to report the illness, and was excused from work--an interaction that BCI concedes is perfectly ordinary between merchandisers and account managers. A jury could credit Ms. Edgar's statements that she knew that Mr. Peters' absence was excused and nonetheless (incorrectly, as it turns out) deemed Mr. Peters' "alleged sickness" suspicious under the circumstances. But it might just as easily credit Mr. Katt's testimony, rather than Ms. Edgar's, and conclude that neither Mr. Grado nor Ms. Edgar learned that Mr. Peters called in sick until the scheduling discussion between Mr. Katt and Mr. Grado on Monday evening, after Ms. Edgar claims she had already made the decision to fire Mr. Peters. The affidavits of Mr. Katt and Mr. Peters state that key players in the decision fell silent upon hearing that Mr. Peters' absence was excused, suggesting that they were indeed surprised by the news.

Recognizing the weakness of the original explanation, BCI has refined its position by relying entirely on Mr. Peters' purported insubordination in his conversation with Mr. Grado on Friday. A jury could conclude, however, that this reason too is a pretext for race discrimination, as the result of Mr. Grado's racial animus. It is undisputed that Ms. Edgar, and Ms. Edgar alone, made the formal termination decision. Mr. Grado has succinctly described his role in the disciplinary process: "I gather the facts and I present them to our HR department, and they decide whether it is an insubordination or not and whether there's action to be taken or not." App. 63. Surely Ms. Edgar harbored no ill will toward Mr. Peters on account of his race, because she worked in Phoenix and did not even know that he was black. Yet it is also undisputed that Ms. Edgar relied exclusively on Mr. Grado's account of the Friday phone conversation in making her decision. She conducted no independent inquiry into the events that took place that Friday, and failed to take even the basic step--cited by this Court in Kendrick, 220 F.3d at 1231-32--of asking Mr. Peters for his side of the story. Accordingly, Mr. Grado's report that Mr. Peters had behaved in a defiant, insubordinate manner on Friday caused the termination. If the [p492]  jury concludes that Mr. Grado's report was tainted by race discrimination--as it might, for the reasons explained above--it could also find that the proffered reason for firing Mr. Peters, which rests entirely on that report, is pretextual.

BCI argues that any factual disputes concerning the Friday conversation between Mr. Grado and Mr. Peters are immaterial because both parties agree that Mr. Peters ended the conversation by saying, "[D]o what [you] got to do and I'll do what I got to do." App. 58. We agree that this statement can only be interpreted as defiance, and if Mr. Grado had reported nothing but this closing remark to Ms. Edgar, there would be no reason to believe that racial bias on the part of Mr. Grado caused the termination. Yet Mr. Grado reported several additional facts about his conversations on Friday afternoon. First, he told Ms. Edgar that he had learned, through Mr. Katt, that Mr. Peters was already planning to call in sick two days later, in violation of company policy. Second, he reported that in their phone call Friday afternoon, he asked Mr. Peters to describe his plans, affording an opportunity for Mr. Peters to explain his scheduling conflict. Third, he reported that Mr. Peters angrily replied that it was "none of [your] business," and was "yelling" during the discussion. Id. at 36, 65.

All of those facts are disputed. Instead of crediting Mr. Grado's testimony, a jury might believe Mr. Katt, who says that he never told Mr. Grado that Mr. Peters had advance plans to call in sick on Sunday, or Mr. Peters, who says that he simply told Mr. Grado that he had been feeling sick that week, not that he planned to violate company policy. A jury might also credit Mr. Peters' version of the Friday afternoon conversation, in which Mr. Grado never bothered to ask Mr. Peters' reasons, Mr. Peters never refused to answer Mr. Grado's questions, and Mr. Peters remained calm throughout the discussion. There is good reason to believe that Ms. Edgar acted on those additional facts, not just on Mr. Peters' "do what you have to do" remark. She denounced Mr. Peters' advance plans to call in sick as "not acceptable," an abuse of the company sick leave policy. Id. at 23. Also, it was Ms. Edgar who originally insisted that Mr. Grado "find out what the situation was" and determine whether Mr. Peters had a "compelling reason" he could not come to work, which suggests that she found that information important in making her decision. Id. at 23. Taking the evidence in the light most favorable to the EEOC, it is easy to imagine that the additional details of Mr. Grado's account, in which Mr. Peters appeared to be fabricating his illness, started yelling at his supervisor, and refused to answer questions, led Ms. Edgar to characterize the conversation as "insubordination" warranting dismissal. The question is not whether Ms. Edgar could have terminated Mr. Peters because of his closing remark alone, which appears to have been permissible under BCI policy, but what actually did cause the adverse employment action. If a jury credits the testimony of Mr. Peters and Mr. Katt, and thus concludes that Mr. Grado lied to Ms. Edgar, it could also find that the additional claims about Mr. Peters' conduct caused the termination.

Finally, BCI argues, and the district court agreed, that Ms. Edgar did not rely solely on Mr. Grado but conducted an independent investigation. This investigation consisted of exactly one action: directing Ms. Pederson to pull Mr. Peters' personnel file. We find this "investigation" inadequate, as a matter of law, to defeat the inference that Mr. Grado's racial bias tainted the decision. Obviously the file contained no information about the recent incident involving Mr. Grado, so it [p493]  is difficult to see how reading it could "independently" confirm what had happened. True, the file contained a description of a 1999 incident of insubordination, which (despite its ignoble back story) seemed consistent with Mr. Grado's version of events. The problem is that Ms. Edgar never sought any other version of events, and therefore had no reason other than Mr. Grado's report to believe that the file was relevant. Simply pulling the file therefore does not constitute an independent investigation, and a jury could conclude that Mr. Grado's factually disputed report--the sole source of information on which Ms. Edgar relied--caused the termination.

Because the EEOC has established genuine issues of material fact as to whether the nondiscriminatory reasons offered by BCI are pretextual, summary judgment was inappropriate.

III. Conclusion
We REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.


text:
User:EWVGN3T0

fr:Utilisateur:EWVGN3T0 ko:사용자:EWVGN3T0

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: User:EWVGN3T0


text: Talk:EEOC v. BCI Coca-Cola Bottling Co.

title: Talk:EEOC v. BCI Coca-Cola Bottling Co.


text:
Dorothy Q

Grandmother’s mother: her age, I guess, Thirteen summers, or something less; Girlish bust, but womanly air; Smooth, square forehead, with up-rolled hair, Lips that lover has never kissed; Taper fingers and slender wrist; Hanging sleeves of stiff brocade; So they painted the little maid.
 * Dorothy Q

On her hand a parrot green Sits unmoving and broods serene. Hold up the canvas full in view, — Look! There’s a rent the light shines through, Dark with a century’s fringe of dust, — That was a Red-Coat’s rapier thrust! Such is the tale the lady old, Dorothy’s daughter’s daughter, told.

Who the painter was none may tell, — One whose best was not over well; Hard and dry, it must be confessed, Flat as a rose that has long been pressed; Yet in her cheek the hues are bright, Dainty colors of red and white, And in her slender shape are seen Hint and promise of stately mien.

Look not on her with eyes of scorn, — Dorothy Q. was a lady born! Ay! since the galloping Normans came, England’s annals have known her name, And still to the three-hilled rebel town Dear is that ancient name’s renown, For many a civic wreath they won, The youthful sire and the gray-haired son.

O Damsel Dorothy! Dorothy Q.! Strange is the gift that I owe to you; Such a gift as never a king Save to daughter or son might bring, -— All my tenure of heart and hand, All my title to house and land; Mother and sister and child and wife And joy and sorrow and death and life!

What if a hundred years ago Those close-shut lips had answered No, When forth the tremulous question came That cost the maiden her Norman name, And under the folds that look so still The bodice swelled with the bosom’s thrill? Should I be I, or would it be One tenth another, to nine tenths me?

Soft is the breath of a maiden’s : Not the light gossamer stirs with less; But never a cable that holds so fast Through all the battles of wave and blast, And never an echo of speech or song That lives in the babbling air so long! There were tones in the voice that whispered then You may hear to-day in a hundred men.

O lady and lover, how faint and far Your images hover, — and here we are, Solid and stirring in flesh and bone, — Edward’s and Dorothy’s — all their own, — A goodly record for Time to show Of a syllable spoken so long ago! — Shall I bless you, Dorothy, or forgive For the tender whisper that bade me live?

It shall be a blessing, my little maid! I will heal the stab of the Red-Coat’s blade, And freshen the gold of the tarnished frame, And gild with a rhyme your household name; So you shall smile on us brave and bright As first you greeted the morning’s light, And live untroubled by woes and fears Through a second youth of a hundred years

Author’s “Preface” (partial, as applicable) to this poem, as it was published in the 1893 anthology Dorothy Q, Together with a Ballad of the Boston Tea Party & Grandmother's Story of Bunker Hill Battle.

title: Dorothy Q


text: Talk:Dorothy Q

title: Talk:Dorothy Q


text:
Letter to Samuel W. Pennypacker from George H. Earle, Jr., May 16, 1906

May 16th, 1906. Hon. Samuel W. Pennypacker, Harrisburg, Pa.

Your letter both pleased and surprised me. I thought you understood me well enough to know that I have always felt that my deep interest in you was making me a nuisance. I have always predicted that before your term was out the people would know what they know now, that is, that you were the most fearless, public-spirited, and honest governor that we have had in this generation. Your courage, at times, has made me fear you would combat evils that could not, at present, be remedied and so lose support that would enable you to remedy some that could. You have never done a thing that I have not understood the highness of your motives but you have done some things that I wanted you not to. Lately you have been making yourself so thoroughly understood and appreciated that I have gladly taken advantage of the growing unanimity of opinion in your favor to let you alone, and you don't know how delighted I am to find that you notice it. I am thus assured that my importunities have not tired you in the past. Now you understand just exactly why I have not bothered you. As to the Press article, some one has to speak in favor of the right when so speaking is unpopular. The more unpopular, the greater the necessity; and so I was foolish enough to call attention to what we all have believed in, and shall all believe in again. The Republican party has done much for this country. It has often created and preserved prosperity by fighting crazes. For the first time in its history, it is yielding to one. If it would only say "we have made this prosperity, it is our child, and shall have our protection," and stand to its guns, it will beat Bryanism to death as it always has. But with its leader caring more for popularity than principle, courageous, as he is uninformed, I, myself, am convinced that it will have to go out of power in order that it may return chastened and more trusted than ever. Tillman and Bryan are going to beat him to death at their game; he could have beaten them to death had he kept his promise and continued the policy of William McKinley, as he promised to do. I worked hard for Roosevelt's re-election, had great admiration for him, and still have, but I very much fear him. Your careers have been remarkably unlike. He started with an almost inexhaustible popularity, which is daily fading away. You incurred tremendous misrepresentation and criticism and are now being understood and appreciated. I remember you once wrote me that "he who shall try to save his life will lose it." It is surprising at this time to find how many "old things" are true when the greater part of the world is engaged in discrediting and despising them. Now have I not written you a long enough letter to warn you against ever charging me again with neglect? As ever, Sincerely your friend,


text:
Page:Peter and Wendy.djvu/335

 CHAPTER VII

R. L. S.

familiar initials are, I suppose, the best beloved in recent literature, certainly they are the sweetest to me, but there was a time when my mother could not abide them. She said "That Stevenson man' with a sneer, and it was never easy to her to sneer. At thought of him her face would become almost hard, which seems incredible, and she would knit her lips and fold her arms, and reply with a stiff "oh" if you mentioned his aggravating name. In the novels we have a way of writing of our heroine, "she drew herself up haughtily," and when mine draw themselves up haughtily I see my mother thinking of Robert Louis Stevenson. He knew her opinion of him, and would write, "My ears tingled yesterday; I sair doubt she has been miscalling me again." But the more she miscalled him the more he delighted in her, and she was informed of this, and at once said "The scoundrel!" If you would know what was his unpardonable crime, it was this, he wrote better books than mine. Rh

title: Page:Peter and Wendy.djvu/335


text:
Page:Peter and Wendy.djvu/336

Rh I remember the day she found it out, which was not, however, the day she admitted it. That day, when I should have been at my work, she came upon me in the kitchen, "The Master of Ballantrae" beside me, but I was not reading: my head lay heavy on the table and to her anxious eyes, I doubt not, I was the picture of woe. "Not writing!" I echoed, no, I was not writing, I saw no use in ever trying to write again. And down, I suppose, went my head once more. She misunderstood, and thought the blow had fallen; I had awakened to the discovery, always dreaded by her, that I had written myself dry; I was no better than an empty ink-bottle. She wrung her hands, but indignation came to her with my explanation, which was that while R. L. S. was at it we others were only 'prentices cutting our fingers on his tools. "I could never thole his books," said my mother immediately, and indeed vindictively.

"You have not read any of them," I reminded her.

"And never will," said she with spirit.

And I have no doubt that she called him a dark character that very day. For weeks too, if not for months, she adhered to her determination not to read him, though I, having come to my senses and seen that there is a place for the 'prentice, was taking a pleasure, almost malicious, in Rh

title: Page:Peter and Wendy.djvu/336


text:
Page:Peter and Wendy.djvu/337

Rh putting "The Master of Ballantrae" in her way, I would place it on her table so that it said good-morning to her when she rose. She would frown, and, carrying it downstairs, as if she had it in the tongs, replace it on its book-shelf. I would wrap it up in the cover she had made for the latest Carlyle: she would skin it contemptuously and again bring it down. I would hide her spectacles in it, and lay it on top of the clothes-basket and prop it up invitingly open against her tea-pot. And at last I got her, though I forget by which of many contrivances. What I recall vividly is a key-hole view, to which another member of the family invited me. Then I saw my mother wrapped up in "The Master of Ballantrae" and muttering the music to herself, nodding her head in approval, and taking a stealthy glance at the foot of each page before she began at the top. Nevertheless she had an ear for the door, for when I bounced in she had been too clever for me; there was no book to be seen, only an apron on her lap and she was gazing out at the window. Some such conversation as this followed:

"You have been sitting very quietly, mother."

"I always sit quietly, I never do anything, I'm just a finished stocking."

"Have you been reading?"

"Do I ever read at this time of day?"

"What is that in your lap?" Rh

title: Page:Peter and Wendy.djvu/337


text:
Biotechnology Support Act of the Republic of Korea

 * Enforcement: Feb. 29, 2008
 * Act No. 8852, Feb. 29, 2008, Amendment of Other Laws and Regulations
 * Ministry of Education, Science and Technology (Future Fundamental Technology Division)
 * 02-2100-6833

The purpose of this Act is to develop and support biotechnology more efficiently by laying the foundation of biotechnology research, and to contribute to the sound progress of the national economy by facilitating the industrialization of the technology.  The term “biotechnology” in this Act means the science and technology falling under each of the following subparagraphs: Except as otherwise prescribed by other Acts, matters concerning biotechnology shall be governed by this Act.
 * Article 1 (Purpose)
 * Article 2 (Definitions)
 * 1) The science and technology which are aimed at researching and utilizing the biotechnological system, biomass, dielectrics or other materials derived therefrom in order to industrially manufacture useful products and to improve the production process; and
 * 2) The science, including physiology, pathology and pharmacology (hereinafter referred to as the “basic medical science”), which are aimed at providing the basic knowledge of biotechnology by researching the origin of vital phenomena, the cause of diseases and the process of the outbreak of illness. [Wholly Amended Dec. 30, 2003]
 * Article 3 (Scope of Application)
 * Article 4 (Formulation of Basic Plan for Biotechnology Support )
 * (1) The heads of the ministries and agencies concerned, as referred to in Article 13, shall submit plans on biotechnology support to the Minister of Education, Science and Technology related to the matters within the jurisdiction of each ministry or agency.
 * (2) The Minister of Education, Science and Technology shall formulate the basic plan for biotechnology support (hereinafter referred to as the “basic plan”) by integrating and coordinating the plans on biotechnology support related to matters within the jurisdiction of such ministries and agencies which are submitted by the heads of the ministries and agencies concerned under paragraph (1).
 * (3) The basic plan under paragraph (2) shall include the following:

 * 1) Comprehensive plan and guidelines on basic studies of biotechnology and promotion of research for industrial application thereof;
 * 2) Guidelines related to a comprehensive fostering plan and efficient utilization of human resources required for the research in biotechnology; and
 * 3) Plans and guidelines on the researches in biotechnology and international exchange of industrial technology manpower related thereto, and on the utilization of overseas scientists and engineers.
 * (4) The Minister of Education, Science and Technology shall, when intending to formulate the basic plan, undergo the deliberation by the Council for Comprehensive Biotechnology Policy as referred to in Article 6.

 * Article 5 (Formulation, Etc. of Annual Implementation Plan for Biotechnology Support )
 * (1) Each head of the ministries and agencies concerned shall formulate an annual implementation plan for biotechnology support (hereinafter referred to as the “implementation plan”) in accordance with the basic plan, and execute it.
 * (2) Each head of the ministries and agencies concerned shall, when intending to formulate the implementation plan, consult with the Minister of Education, Science and Technology in advance.
 * (3) The Minister of Education, Science and Technology may, when he/she deems it necessary, establish basic guidelines required for the formulation of implementation plans and notify the heads of the ministries and agencies concerned thereof.
 * (4) Necessary matters concerning the formulation and execution of the implementation plans shall be prescribed by Presidential Decree.

 * Article 6 (Council for Comprehensive Biotechnology Policy )
 * (1) The Council for Comprehensive Biotechnology Policy (hereinafter referred to as the “Council”) shall be established under the jurisdiction of the Minister of Education, Science and Technology to undertake the affairs related to the formulation of the basic plan and execution and coordination thereof.
 * (2) The Council shall deliberate and make decisions on the following matters:

 * 1) Formulation of plans on basic studies of biotechnology and promoting researches for industrial application thereof, and the coordination of application of such plans;
 * 2) Formulation of the basic plan for research and technology development in biotechnology, and establishment of major policies pursuant to the basic plan and coordination of their implementation;
 * 3) Formulation of the comprehensive plan for the development and utilization of human resources in the biotechnology field, and establishment of major policies and guidelines for the utilization of human resources, and coordination of their implementation;
 * 4) Formulation of plans on development exchange of researches in biotechnology and industrial technology manpower related thereto, and on the utilization of overseas scientists and engineers, and the coordination of their implementation;
 * 5) Formulation of an R&D plan for the utilization and preservation of genetic resources, and coordination of its implementation; and
 * 6) Other matters that the Minister of Education, Science and Technology deems necessary for the biotechnology support.
 * (3) The Council shall consist of not more than 17 members including a chairman.
 * (4) The Minister of Education, Science and Technology shall be the chairman of the Council, and members of the Council shall be the persons falling under each of the following subparagraphs:

 * 1) Vice-Ministerial level public officials of the central administrative agencies concerned who are prescribed by Presidential Decree; and
 * 2) Persons specializing in biotechnology in academia, research institutes and the industrial sector, and experts on life ethics.
 * (5) Necessary matters concerning the organization and operation, etc. of the Council, except for the matters stipulated in this Act, shall be as prescribed by Presidential Decree. <Newly Inserted Dec. 30, 2003>

The Minister of Education, Science and Technology shall make efforts to promote international cooperation in biotechnology researches and technologies, and devise efficient measures for the inducement of advanced technologies. <Amended Jan. 5, 1995, Dec. 30, 2003, Feb. 29, 2008> The Government shall promote joint researches among academia, research institutes and industries for the efficient research and technological development in biotechnology. <Amended Jan. 5, 1995> The Government shall take policy measures to support the matters falling under each of the following subparagraphs, in order to vitalize R&D of biotechnology and to facilitate the industrial application of the results thereof: The Government shall make efforts to promote R&D by collecting information on biotechnological research and disseminating such information to related organizations. <Amended Jan. 5, 1995>
 * Articles 7 and 8 Deleted. <Dec. 30, 2003>
 * Article 9 (Research and Technical Cooperation)
 * Article 10 (Promotion of Joint Research)
 * Article 11 (Assistance to Facilitate Industrial Application of Biotechnology)
 * 1) Matters concerning support for the manufacture of new technological products related to biotechnology;
 * 2) Matters concerning R&D aimed at facilitating the industrial application of biotechnology research results, and building of regional R&D bases; and
 * 3) Matters concerning assistance in the start-up of small and medium venture enterprises involved in biotechnology. [Wholly Amended Dec. 30, 2003]
 * Article 12 (Collection and Dissemination of Technology Information)
 * Article 13 (Working out Policies to Support Biotechnology, Etc.)
 * (1) The Government shall take policy measures falling under each of the following subparagraphs with respect to the basic research in biotechnology and the research on its industrial application in order to efficiently nurture the biotechnology: Provided, that the task of facilitating R&D of the basic medical science and nurturing the basic medical science shall be put under jurisdiction of the Minister of Education, Science and Technology and the Minister for Health, Welfare and Family Affairs: <Amended Aug. 28, 1997, Jan. 29, 2001, Dec. 30, 2003, Dec. 31, 2004, Feb. 29, 2008>

4-2. Deleted. <Feb. 29, 2008> 5. The Minister for Health, Welfare and Family Affairs shall engage in facilitating R&D of technologies related to biotechnology involving health, medical care and food hygiene, and to foster specialized manpower related thereto, as well as to nurture businesses related to clinical trials and to support researches related thereto; and 6. The Minister of Environment shall engage in supporting technological advancement, basic studies and applied research for the conservation of biodiversity, sustainable use of its components, treatment of sewage and wastes using biotechnology, and prevention of environmental pollution, as well as to support technological development for the prevention of sea pollution, etc. and to foster research institutions related thereto. 7. Deleted. <Feb. 29, 2008>
 * 1) Deleted. <Feb. 29, 2008>
 * 2) The Minister of Education, Science and Technology shall engage in formulating the basic plan under Article 4 (2), assist and conduct general coordination for establishing policies by each ministry, foster specialized manpower to promote biotechnology research, support basic studies in biotechnology, support advancement of basic technology and cutting-edge technology related to biotechnology, support research aimed at securing, analyzing, utilizing and preserving useful genes in the science and technology field, and nurturing and development of supporting organizations involved in biotechnology;
 * 3) The Minister for Food, Agriculture, Forestry and Fisheries shall engage in supporting application research such as breeding and improving animals, plants, germs, and developing new food stuff, and to support basic studies for securing, analyzing, utilizing and preserving genes useful in agricultural and forestry field, and to nurture and develop research institutes, and also to support application research in the maritime sector such as production of useful material utilizing aquatic life, breeding and improving them and developing food stuff, as well as to support basic studies for securing, analyzing, using and preserving useful genes, etc.;
 * 4) The Minister of Knowledge Economy shall engage in supporting the advancement and improvement of the biotechnology-related industrial process, exploitation of new and renewable energy and efficient utilization of mineral resources, and to facilitate the industrialization of developed technologies, as well as to support the development of information communication technology for nurturing and building up biotechnology;
 * (2) The Minister of Education, Science and Technology and the Minister for Health, Welfare and Family Affairs shall, when intending to take a policy measure for supporting the basic medical science, consult with each other thereabout. <Newly Inserted Dec. 30, 2003, Feb. 29, 2008> [Wholly Amended Jan. 5, 1995]

 * Article 14 (Certification and Clinical Test)
 * (1) The Government shall establish a system for certification and clinical tests of biotechnology-related products. <Amended Jan. 5, 1995>
 * (2) Necessary matters concerning the establishment of the system for certification and clinical tests under paragraph (1) shall be prescribed by Presidential Decree.

 * Article 15 (Preparation and Implementation of Experimental Guidelines)
 * (1) The Government shall prepare and implement experimental guidelines for the promotion of biotechnological research and industrialization thereof. <Amended Jan. 5, 1995>
 * (2) The experimental guidelines under paragraph (1) shall include measures required for preventing biological hazard, negative influence upon the environment and any ethical problems that may arise in the course of research on biotechnology and its industrialization, and shall also include safety standards for the transfer, handling and use of a genetically converted organism. <Amended Jan. 5, 1995>

 * Article 16 (Korea Research Institute of Bioscience and Biotechnology <Amended Jan. 5, 1995, Dec. 30, 2003>)
 * (1) The Korea Research Institute for Bioscience and Biotechnology (hereinafter referred to as the “Research Institute”) may be established as a foundation to play a pivotal role in supporting researches on biotechnology (excluding basic medical science; hereinafter in this Article the same shall apply) and on the utilization and preservation of genetic resources, as well as to maintain, develop and support a mutually cooperative system among academia, research institutions and industries. <Amended Jan. 5, 1995, Dec. 30, 2003>
 * (2) The Research Institute referred to in paragraph (1) shall be a specific research institute to which the Support of Specific Research Institutions Act applies. <Amended Dec. 30, 2003>
 * (3) Deleted. <Dec. 6, 1995>

 * Article 17 (Organization in Charge of Nurturing Basic Medical Science)
 * (1) The Government may designate and operate an organization in charge of nurturing the basic medical science (hereinafter referred to as the “nurturing organization of basic medical science”).
 * (2) The Government may financially support the costs for operating the nurturing organization of basic medical science within the limit of budget.
 * (3) Necessary matters concerning the designation and operation of the nurturing organization of basic medical science shall be prescribed by Presidential Decree. [This Article Newly Inserted Dec. 30, 2003]

 * Article 18 Deleted. <Dec. 6, 1995>
 * Article 19 (Customs Clearance by Ex Post Facto Approval <Amended Dec. 30, 2003>)
 * (1) Deleted. <Dec. 30, 2003>
 * (2) In order to secure the safety of items that are not domestically produced among materials, machinery or reagents required for biotechnology research activities, which may be spoiled in the course of lengthy customs formalities, the ex post facto approval may substitute for the existing customs clearance procedure under the conditions prescribed by Presidential Decree, notwithstanding the provisions in the Customs Act. <Amended Dec. 30, 2003>

 * Article 20 Deleted. <Dec. 30, 2003>

ADDENDA (Government Organization Act) <No. 8852, Feb. 29, 2008>
This Act shall enter into force on the date of its promulgation: Provided, that …… <Omitted> Among the laws amended in accordance with Article 6 of Addenda, the amended parts of the law which was announced before the enforcement of this Act but has not been enforced yet shall become effective from the enforcement date of the concerned law. <1> through Omitted The Biotechnology Act shall be partially amended as follows: The term “Minister of Science and Technology” in Article 4 (1), (2), (4), Article 5 (2), (3), Article 6 (1), subparagraphs 6 of Article 6 (2), Article 6 (4) (part other than subparagraphs) and Article 9 shall each be amended to “Minister of Education, Science and Technology.” Of the proviso to the part other than subparagraphs in Article 13 (1), “the Minister of Science and Technology and the Minister of Health and Welfare” shall be amended to “the Minister of Education, Science and Technology and the Minister for Health, Welfare and Family Affairs,” and subparagraph 1 of the same Article shall be deleted, and of subparagraph 2 of the same Article, “the Minister of Science and Technology shall engage in formulating the basic plan under Article 4 (2) and assist and coordinate of establishing policies by each ministry” shall be amended to “the Minister of Education, Science and Technology shall engage in formulating the basic plan under Article 4 (2), assist and coordinate establishing policies by each ministry, foster specialized manpower to facilitate researches in the biotechnology field and support basic research in biotechnology,” and of subparagraph 3 of same Article “Minister of Agriculture and Forestry” shall be amended to “Minister for Food, Agriculture, Forestry and Fisheries,” and “nurturing and development” shall be amended to “nurturing, development, and support for application research in maritime field such as production of useful material utilizing aquatic life, breeding and improving them and developing food stuff, as well as support for basic research to secure, analyze, use and preserve useful genes, etc.,” and of the subparagraph 4 of the same paragraph, “Minister of Industry and Resources” shall be amended to “Minister of Knowledge Economy,” and “facilitation” to “facilitation and support for development of information communication technology for nurturing and building up biotechnology,” and subparagraph 4-2 of the same paragraph shall be deleted, and of subparagraph 6 of the same paragraph, “support for applied research” shall be amended to “support for applied research as well as technology development and nurturing research institutes for prevention of sea pollution, etc.” and subparagraph 7 of the same paragraph shall be deleted, and among paragraph (2) of the same Article “the Minister of Science and Technology and the Minister of Health and Welfare” shall be amended to “the Minister of Education, Science and Technology and the Minister for Health, Welfare and Family Affairs.” through omitted
 * Article 1 (Enforcement Date)
 * Articles 2 through 10 Omitted.
 * Article 6 (Amendment of Other Law)
 * Article 7 omitted


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Rh "Just my apron."

"Is that a book beneath the apron?"

"It might be a book."

"Let me see."

"Go away with you to your work."

But I lifted the apron. "Why, it's 'The Master of Ballantrae!'" I exclaimed, shocked.

"So it is " said my mother, equally surprised. But I looked sternly at her, and perhaps she blushed.

"Well, what do you think: not nearly equal to mine?" said I with humour.

"Nothing like them," she said determinedly.

"Not a bit," said I, though whether with a smile or a groan is immaterial; they would have meant the same thing. Should I put the book back on its shelf? I asked, and she replied that I could put it wherever I liked, for all she cared, so long as I took it out of her sight (the implication was that it had stolen on to her lap while she was looking out at the window). My behaviour may seem small, but I gave her a last chance, for I said that some people found it a book there was no putting down until they reached the last page.

"I'm no that kind," replied my mother.

Nevertheless our old game with the haver of a thing, as she called it, was continued, with this difference, that it was now she who carried the book covertly upstairs, and I who replaced it on Rh

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Rh the shelf, and several times we caught each other in the act, but not a word said either of us; we were grown self-conscious. Much of the play no doubt I forget, but one incident I remember clearly. She had come down to sit beside me while I wrote, and sometimes, when I looked up, her eye was not on me, but on the shelf where "The Master of Ballantrae" stood inviting her. Mr. Stevenson's books are not for the shelf, they are for the hand; even when you lay them down, let it be on the table for the next comer. Being the most sociable that man has penned in our time, they feel very lonely up there in a stately row. I think their eye is on you the moment you enter the room, and so you are drawn to look at them, and you take a volume down with the impulse that induces one to unchain the dog. And the result is not dissimilar, for in another moment you two are at play. Is there any other modern writer who gets round you in this way? Well, he had given my mother the look which in the ball-room means, "Ask me for this waltz," and she ettled to do it, but felt that her more dutiful course was to sit out the dance with this other less entertaining partner. I wrote on doggedly, but could hear the whispering.

"Am I to be a wall-flower?" asked James Durie reproachfully. (It must have been leap year.) Rh

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Rh "Speak lower," replied my mother, with an uneasy look at me.

"Pooh!" said James contemptuously, "that kail-runtle!"

"I winna have him miscalled," said my mother, frowning.

"I am done with him," said James (wiping his cane with his cambric handkerchief), and his sword clattered deliciously (I cannot think this was accidental), which made my mother sigh. Like the man he was, he followed up his advantage with a comparison that made me dip viciously.

"A prettier sound that," said he, clanking his sword again, "than the clack-clack of your young friend's shuttle."

"Whist!" cried my mother, who had seen me dip.

"Then give me your arm," said James, lowering his voice.

"I dare not," answered my mother. "He's so touchy about you."

"Come, come," he pressed her, "you are certain to do it sooner or later, so why not now?"

"Wait till he has gone for his walk," said my mother; "and, forby that, I'm ower old to dance with you."

"How old are you?" he inquired.

"You're gey an' pert!" cried my mother.

"Are you seventy?" Rh

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text:
Grandmother's Story of Bunker Hill Battle

’T is like stirring living embers when, at eighty, one remembers All the achings and the quakings of “the times that tried men’s souls;” When I talk of Whig and Tory, when I tell the Rebel story, To you the words are ashes, but to me they’re burning coals.
 * Grandmother's Story of Bunker Hill Battle

I had heard the muskets’ rattle of the April running battle; Lord Percy’s hunted soldiers, I can see their red coats still; But a deadly chill comes o’er me, as the day looms up before me, When a thousand men lay bleeding on the slopes of Bunker’s Hill.

’T was a peaceful summer’s morning, when the first thing gave us warning Was the booming of the cannon from the river and the shore: “Child,” says grandma, “what’s the matter, what is all this noise and clatter? Have those scalping Indian devils come to murder us once more?”

Poor old soul! my sides were shaking in the midst of all my quaking, To hear her talk of Indians when the guns began to roar: She had seen the burning village, and the slaughter and the pillage, When the Mohawks killed her father with their bullets through his door.

Then I said, “Now, dear old granny, don’t you fret and worry any, For I’ll soon come back and tell you whether this is work or play; There can’t be mischief in it, so I won’t be gone a minute” — For a minute then I started. I was gone the livelong day.

No time for bodice-lacing or for looking-glass grimacing; Down my hair went as I hurried, tumbling half-way to my heels; God forbid your ever knowing, when there’s blood around her flowing, How the lonely, helpless daughter of a quiet household feels!

In the street I heard a thumping; and I knew it was the stumping Of the Corporal, our old neighbor, on that wooden leg he wore, With a knot of women round him, — it was lucky I had found him, So I followed with the others, and the Corporal marched before.

They were making for the steeple, — the old soldier and his people; The pigeons circled round us as we climbed the creaking stair, Just across the narrow river — oh, so close it made me shiver! — Stood a fortress on the hill-top that but yesterday was bare.

Not slow our eyes to find it; well we knew who stood behind it, Though the earthwork hid them from us, and the stubborn walls were dumb: Here were sister, wife, and mother, looking wild upon each other, And their lips were white with terror as they said, !

The morning slowly wasted, not a morsel had we tasted, And our heads were almost splitting with the cannons’ deafening thrill, When a figure tall and stately round the rampart strode sedately; It was, one since told me; he commanded on the hill.

Every woman’s heart grew bigger when we saw his manly figure, With the banyan buckled round it standing up so straight and tall; Like a gentleman of leisure who is strolling out for pleasure, Through the storm of shells and cannon-shot he walked around the wall.

At eleven the streets were swarming, for the red-coats’ ranks were forming; At noon in marching order they were moving to the piers; How the bayonets gleamed and glistened, as we looked far down, and listened To the trampling and the drum-beat of the belted grenadiers!

At length the men have started, with a cheer (it seemed faint-hearted), In their scarlet regimentals, with their knapsacks on their backs, And the reddening, rippling water, as after a sea-fight’s slaughter, Round the barges gliding onward blushed like blood along their tracks.

So they crossed to the other border, and again they formed in order; And the boats came back for soldiers, came for soldiers, soldiers still: The time seemed everlasting to us women faint and fasting, — At last they’re moving, marching, marching proudly up the hill.

We can see the bright steel glancing all along the lines advancing — Now the front rank fires a volley —they have thrown away their shot; For behind their earthwork lying, all the balls above them flying, Our people need not hurry; so they wait and answer not.

Then the Corporal, our old cripple (he would swear sometimes and tipple), — He had heard the bullets whistle (in the old French war) before, — Calls out in words of jeering, just as if they all were hearing, — And his wooden leg thumps fiercely on the dusty belfry floor: —

“Oh! fire away, ye villains, and earn King George’s shillin’s, But ye’ll waist a ton of powder afore a ‘rebel’ falls; You may bang the dirt and welcome, they’re as safe as Dan’l Malcolm Ten foot beneath the gravestone that you’ve splintered with your balls!”

In the hush of expectation, in the awe and trepidation Of the dread approaching moment, we are well-nigh breathless all; Though the rotten bars are failing on the rickety belfry railing, We are crowding up against them like the waves against a wall.

Just a glimpse (the air is clearer), they are nearer, — nearer, — nearer, When a flash — a curling smoke-wreath — then a crash — the steeple shakes — The deadly truce is ended; the tempest’s shroud is rended; Like a morning mist it gathered, like a thunder-cloud it breaks!

Oh the sight our eyes discover as the blue-black smoke blows over! The red-coats stretched in windrows as a mower rakes his hay; Here a scarlet heap is lying, there a headlong crowd is flying Like a billow that has broken and is shivered into spray.

Then we cried, “The troops are routed! they are beat — it can’t be doubted! God be thanked, the fight is over!” — Ah! the grim old soldier’s smile! “Tell us, tell us why you look so?” (we could hardly speak, we shook so), — “Are they beaten? Are they beaten? they beaten?” — “Wait a while.”

Oh the trembling and the terror! for too soon we saw our error: They are baffled, not defeated; we have driven them back in vain; And the columns that were scattered, round the colors that were tattered, Toward the sullen, silent fortress turn their belted breasts again.

All at once, as we are gazing, lo the roofs of Charlestown blazing! They have fired the harmless village; in an hour it will be down! The Lord in heaven confound them, rain his fire and brimstone round them, — The robbing, murdering red-coats, that would burn a peaceful town!

They are marching, stern and solemn; we can see each massive column As they near the naked earth-mound with the slanting walls so steep. Have our soldiers got faint-hearted, and in noiseless haste departed? Are they panic-struck and helpless? Are they palsied or asleep?

Now! the walls they’re almost under! scarce a rod the foes asunder! Not a firelock flashed against them! up the earthwork they will swarm! But the words have scarce been spoken, when the ominous calm is broken, And a bellowing crash has emptied all the vengeance in the storm!

So again, with murderous slaughter, pelted backwards to the water, Fly Pigot’s running heroes and the frightened braves of Howe; And we shout, “At last they’re done for, it’s their barges they have run for: They are beaten, beaten, beaten; and the battle’s over now!

And we looked, poor timid creatures, on the rough old soldier’s features, Our lips afraid to question, but he knew what we would ask: “Not sure,” he said; “keep quiet, — once more, I guess, they’ll try it — Here’s damnation to the cut-throats!” — then he handed me his flask,

Saying, “Gal, you’re looking shaky; have a drop of old Jamaiky; I’m afeard there’ll be more trouble afore the job is done;” So I took one scorching swallow; dreadful faint I felt and hollow, Standing there from early morning when the firing was begun.

All through those hours of trial I had watched a calm clock dial, As the hands kept creeping, creeping, — they were creeping round to four, When the old man said, “they’re forming with their bagonets fixed for storming: It’s the death-grip that’s a-coming, — they will try the works once more.”

With brazen trumpets blaring, the flames behind them glaring, The deadly wall before them, in close array they come; Still onward, upward toiling, like a dragon’s fold uncoiling, — Like the rattlesnake’s shrill warning the reverberating drum!

Over heaps all torn and gory — shall I tell the fearful story, How they surged above the breast-work, as a sea breaks over a deck; How, driven, yet scarce defeated, our worn-out men retreated, With their powder-horns all emptied, like the swimmers from a wreck?

It has all been told and painted; as for me, they say I fainted, And the wooden-legged old Corporal stumped with me down the stair: When I woke from dreams affrighted the evening lamps were lighted, — On the floor a youth was lying; his bleeding breast was bare.

And I heard through all the flurry, “Send for ! hurry! hurry! Tell him here’s a soldier bleeding, and he’ll come and dress his wound!” Ah, we knew not till the morrow told its tale of death and sorrow, How the starlight found him stiffened on the dark and bloody ground.

Who the youth was, what his name was, where the place from which he came was, Who had brought him from the battle, and had left him at our door, He could not speak to tell us; but ’t was one of our brave fellows, As the homespun plainly showed us which the dying soldier wore.

For they all thought he was dying, as they gathered round him crying, — And they said, “Oh, how they’ll miss him!” and “What will his mother do?” Then, his eyelids just unclosing like a child’s that has been dozing, He faintly murmured, “Mother!” — and — I saw his eyes were blue.

“Why, grandma, how you’re winking!” Ah, my child, it sets me thinking Of a story not like this one. Well, he somehow lived along; So we came to know each other, and I nursed him like a — mother, Till at last he stood before me, tall, and rosy-cheeked, and strong.

And we sometimes walked together in the pleasant summer weather, — “Please to tell us what his name was?” Just your own, my little dear, — There’s his picture Copley painted: we became so well acquainted, That — in short, that’s why I’m grandma, and you children all are here!”


text: Talk:Grandmother's Story of Bunker Hill Battle


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Rh "Off and on," she admitted.

"Pooh," he said, "a mere girl!"

She replied instantly, "I'm no to be catched with chaff;" but she smiled and rose, as if he had stretched out his hand and got her by the finger-tip.

After that they whispered so low (which they could do as they were now much nearer each other) that I could catch only one remark. It came from James, and seems to show the tenor of their whisperings, for his words were, "Easily enough, if you slip me beneath your shawl."

That is what she did, and furthermore she left the room guiltily, muttering something about redding up the drawers. I suppose I smiled wanly to myself, or conscience must have been nibbling at my mother, for in less than five minutes she was back, carrying her accomplice openly, and she thrust him with positive viciousness into the place where my Stevenson had lost a tooth (as the writer whom he most resembled would have said). And then like a good mother she took up one of her son's books and read it most determinedly. It had become a touching incident to me, and I remember how we there and then agreed upon a compromise: she was to read the enticing thing just to convince herself of its inferiority.

"The Master of Ballantrae" is not the best. Conceive the glory, which was my mother's, of Rh

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Rh knowing from a trustworthy source that there are at least three better awaiting you on the same shelf. She did not know Alan Breck yet, and he was as anxious to step down as Mr. Bally himself. John Silver was there, getting into his leg, so that she should not have to wait a moment, and roaring, "I'll lay to that!" when she told me consolingly that she could not thole pirate stories. Not to know these gentlemen, what is it like? It is like never having been in love. But they are in the house! That is like knowing that you will fall in love to-morrow morning. With one word, by drawing one mournful face, I could have got my mother to abjure the jam-shelf nay, I might have managed it by merely saying that she had enjoyed "The Master of Ballantrae." For you must remember that she only read it to persuade herself (and me) of its unworthiness, and that the reason she wanted to read the others was to get further proof. All this she made plain to me, eyeing me a little anxiously the while, and of course I accepted the explanation. Alan is the biggest child of them all, and I doubt not that she thought so, but curiously enough her views of him are among the things I have forgotten. But how enamoured she was of "Treasure Island," and how faithful she tried to be to me all the time she was reading it! I had to put my hands over her eyes to let her know that I had entered the room, and even then Rh

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