IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-40313 Summary Calendar ______________

YOLANDA R. CASTILLO, Plaintiff-Appellant,

versus

POSTMASTER GENERAL ANTHONY M. FRANK, Defendant- Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________

November 27, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Plaintiff-Appellant Yolanda R. Castillo ("Castillo") appeals

the final judgment of the district court in favor of Defendant-

Appellee Postmaster General Anthony M. Frank ("Postmaster")

adopting the magistrate judge's finding of no discrimination on the

basis of sex. We affirm.

FACTS AND PROCEDURAL HISTORY

Castillo was employed by the United States Postal Service as

a letter carrier at the Downtown Station in Corpus Christi, Texas

until her discharge on July 25, 1988. On June 9, 1988, she told

her immediate supervisor, Romera "Homer" Zuniga ("Zuniga") that she

had been attacked by an unknown black man at a location on her delivery route. Zuniga reported the incident to the police and

postal inspectors, and then accompanied Castillo to a doctor who

examined and release her. Castillo was bruised on her right arm,

but did not suffer any major or debilitating physical injuries.

While still at the doctor's office, Zuniga filled out portions

of, and had Castillo complete and sign, a Federal Employee's Notice

of Traumatic Injury and Claim for Continuation of Pay/Compensation

and a Duty Status Report, certifying that Castillo had suffered an

on-the-job injury and requested a continuation of pay and

compensation for wage loss, if any.1 Castillo was also interviewed

by postal inspectors within one hour of the alleged attack.

The Postal Inspection Service began an investigation, but was

unable to uncover a suspect or any witness to the incident, so the

investigation was effectively closed. Approximately a week later,

the postal inspectors received an anonymous telephone call from an

individual who, after being assured that this individual's identity

would remain confidential, volunteered information that the alleged

assault had not occurred in the manner or place indicated by

Castillo, but rather that her injuries were the result of a

domestic disturbance at the home of one of her customers.

Based on the information provided by the confidential

informant, the postal inspectors reopened the investigation. The

postal inspectors again met with Castillo and offered her an

opportunity to amend her account of the incident, which she

declined to do. The postal inspectors then proceeded to attempt to

1 Castillo, however, returned to work the next day.

2 verify the information they received from the informant. They

visited the home of Elroy Chandler ("Chandler"), whose name and

address they obtained from the informant. Chandler told the postal

inspectors that he had grabbed Castillo by the right arm, and he

showed the inspectors how he did it.

The results of the postal inspector's second investigation

were reported in an Investigative Memorandum to the Postmaster in

Corpus Christi. Based on the information contained in the

Investigative Memorandum, Zuniga took steps to have Castillo

removed. Castillo was issued a notice of removal on June 22, 1988,

based on her fraudulent injury claim and improper conduct in

violation of the U.S. Postal Service's Standards of Conduct.

Castillo unsuccessfully appealed her removal through the

grievance-arbitration procedure contained in the applicable

collective bargaining agreement. The Arbitrator denied Castillo's

grievance, finding that the Postal Service had met its burden of

establishing good cause for the notice of removal or rather, that

Castillo acted dishonestly in wilfully filing a fraudulent injury

claim.

Castillo also filed an informal complaint of discrimination

with the Postal Service, and later filed a formal complaint on

August 26, 1988. Both the informal and formal complaints were

investigated, but settlement attempts proved unsuccessful. On

January 10, 1989 a Notice of Proposed Disposition was issued by the

Postal Service proposing a finding of no discrimination. In

response to the notice, Castillo requested a hearing before an

3 Administrative Law Judge ("ALJ"). At the conclusion of the

evidentiary hearing, the ALJ issued a Recommended Decision

recommending a finding of no discrimination on the basis of age and

national origin, but an affirmative finding of discrimination on

the basis of sex. The ALJ further recommended reinstatement,

appropriate back pay and benefits and attorneys' fees and costs.

However, on October 3, 1989 the Postal Service issued a final

decision finding no discrimination on the basis of age, national

origin, or sex.

On October 31, 1989, Castillo filed a complaint in federal

court against the Postmaster alleging that her termination was

based on unlawful sex, national origin and age discrimination in

violation of Title VII.2 On June 7, 1991, Castillo filed a motion

to compel the identity of the confidential informant. A magistrate

judge heard argument and issued an order on July 2, 1991 granting

Castillo's motion to compel. On July 5, 1991, the district court

issued an order referring the case to the magistrate judge as

special master pursuant to FED. R. CIV. P. 53 and 42 U.S.C. § 2000e-

5(f)(5).

On July 12, 1991, the Postmaster filed objections to the

magistrate judge's July 1, 1991 disclosure order on the basis that

the requested information concerning the confidential informant was

privileged. After hearing argument from the parties, the

magistrate judge entered an order on August 26, 1991 overruling the

2 She later amended her complaint and dropped the age and national origins discrimination claims.

4 Postmaster's objections and again ordered disclosure of the

confidential informant's identity. On September 5, 1991, the

Postmaster renewed his objections to the magistrate judge's

disclosure order of August 26, 1991.

The district court issued an order on August 25, 1991 denying

the Postmaster's objections without prejudice with leave to file

authority establishing the court's authority to review a ruling by

a magistrate judge acting as a special master on a non-dispositive

motion. After the Postmaster filed his authority, a hearing was

held, at which time the district court requested an in camera

review of the information concerning the confidential informant.

After receiving the sealed information, the court issued an order

on June 3, 1993 denying the motion to compel on the basis that the

identity of the confidential informant is privileged and exempt

from discovery under Rule 26(b)(1), and setting aside the

magistrate judge's July 2, 1991 disclosure order.3

The case was tried before the magistrate judge on November 21-

22, 1994. In his Memorandum and Recommendations the magistrate

judge concluded that there was insufficient credible evidence to

prove disparate treatment of Castillo based upon her sex. The

magistrate judge found that Castillo "failed to prove by a

preponderance of the evidence that the [Postmaster]'s reasons for

her discharge or failure to settle her grievance were pretextual

and/or were motivated by the unlawful consideration of her sex,

3 Castillo filed an interlocutory appeal, which was later dismissed after the district court denied Castillo's request for a

(b) determination.

5 rather than by valid labor and management reasons." On March 6,

1995, the district court issued an order adopting the Memorandum

and Recommendations of the magistrate judge, and final judgment was

entered in favor of the Postmaster on March 8, 1995.

DISTRICT COURT'S REVIEW OF DISCLOSURE ORDER

Castillo contends that after the district court referred the

case to the magistrate judge, acting as a special master pursuant

to FED. R. CIV. P. 53 and 42 U.S.C. § 2000e-5(f)(5), the court lost

its authority to review the magistrate judge's initial order

granting Castillo's motion to compel the identity of the

confidential informant.4 She argues that the district court had no

authority to overrule the magistrate judge's disclosure order

because the court did not reserve that right pursuant to Rule 53 by

specifically limiting the special master's powers. Castillo

further argues that even if the court had jurisdiction and

authority to review the magistrate judge's disclosure order, the

court failed to make a finding that the magistrate judge's order

was "clearly erroneous or contrary to law" in accordance with

(b)(1)(A).

Our construction of the statutes and procedural rules involved

4 Castillo also argues the Postmaster's failure to object to the reference at the time it was issued waived his right to object to the reference after the fact by having the district court review the magistrate judge's disclosure order. See Cruz v. Hauck,

(5th Cir. 1975), cert. denied,

,

,

(1976). We find this argument without merit because the Postmaster did not and does not now make an objection to the reference; his objections are to the magistrate judge's ruling on Castillo's motion to compel.

6 in the instant case5 leads us to the conclusion that the district

court did have the authority to review the magistrate judge's

ruling on Castillo's non-dispositive, pretrial motion to compel.

Although not directly addressing the authority of the court to

review non-dispositive motions, the Sixth Circuit has discussed the

standard of review for the five kinds of references by district

judges to magistrate judges in Brown v. Wesley's Quaker Maid, Inc.,

(6th Cir. 1985), cert. denied,

,

,

(1986).

The magistrate judge's initial ruling on Castillo's motion to

compel was made under the referral authority of

and

FED. R. CIV. P. 72(a). Section 636(b)(1)(A) specifically requires

the district court to apply a "clearly erroneous" standard when

reviewing a magistrate judge's ruling on a non-dispositive,

pretrial motion such as a discovery motion.

at 954 (citing

(b)(1)(A)).6 By establishing a standard of review for

the district court to apply, the statute can only be construed to

give the district court authority to review such rulings. We

hardly think a statute that establishes a standard of review for a

5 Those statutes and procedural rules are as follows:

(the Magistrates' Act); 42 U.S.C. § 2000e-5(f)(5); and FED. R. CIV. P. 53. 6 Section 636(b)(1)(A) provides in pertinent part:

a judge may designate a magistrate to hear and determine any pretrial matter pending before the court....A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.

7 particular ruling would not naturally contemplate that such rulings

will be susceptible to an application of that standard of review.

Thus, we reject Castillo's argument that the initial ruling was not

reviewable by the district court.

Additionally, we note that after the district court referred

the case to the magistrate judge as a special master pursuant to 42

U.S.C. § 2000e-5(f)(5) and FED. R. CIV. P. 53, the magistrate judge

once again ordered disclosure. Under Rule 53 this ruling is

clearly reviewable. The scope of review of the magistrate judge's

findings under this kind of reference is the "clearly erroneous"

standard. Id. (citing FED. R. CIV. P. 53(e)(2)). The language of

Rule 53 explicitly grants the court authority to review the

findings of the special master, and thus implicitly grants

authority to review the special master's rulings on non-

dispositive, pretrial motions. We find no support for Castillo's

contention that the language of Rule 53 expressly restricts the

authority to review the rulings of the special master unless

specifically reserved in the order of reference. We find no error

in the court's review of the magistrate judge's granting of

Castillo's motion to compel the identity of the confidential

informant.

HARMLESS ERROR

Even if we were to assume that the district court exceeded its

authority or failed to properly apply the "clearly erroneous"

standard in reviewing the magistrate's ruling, we find such error

harmless. It is clear that disclosing the identity of the

8 confidential informant would not effect the magistrate judge's

finding of no sex discrimination. Although the informant's tip

precipitated the second investigation, the postal inspectors

uncovered independent evidence to corroborate the tip that Chandler

had assaulted Castillo instead of an unknown assailant. Thus, the

decision to discharge Castillo was not based on what the

confidential informant said about the assault but rather, was based

on the independent evidence uncovered by the postal inspectors.

Castillo asserts that she could have proven discrimination if

she had been able to show that the confidential informant was not

credible. Such a showing, however, would not be relevant to the

motivation of the decision makers.7 Any issue with respect to the

credibility of the informant does not disprove the Postmaster's

honest belief that Castillo committed the violation, thereby

successfully rebutting her prima facie case of disparate treatment.

See Risher v. Aldridge,

(5th Cir. 1989). See

also Jones v. Gerwens,

, 1540 (11th Cir. 1989).

Castillo has not shown that the nondisclosure of the confidential

informant's identity resulted in substantial prejudice. See Global

Petrotech, Inc. v. Engelhard Corp.,

(5th Cir.

1995) (citing F.D.I.C. v. Mijalis,

(5th Cir.

1994)).

7 Castillo does not allege that the postal service schemed to get rid of her by inventing the story that Chandler assaulted her and fabricating a confidential informant.

9 CONCLUSION

For the reasons articulated above, the judgment of the

district court is AFFIRMED.

10