April 12, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2102
RODOLFO A. VARGAS,
Plaintiff, Appellant,
v.
LOUISE DURFEE, IN HER OFFICIAL CAPACITY,
AS DIRECTOR OF THE RHODE ISLAND
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Rodolfo A. Vargas on brief pro se.
Michael K. Marran on brief for appellee.
Per Curiam. Appellant Rodolfo A. Vargas appeals the
final judgment entered by the United States District Court
for the District of Rhode Island in favor of appellee, Louise
Durfee, Director of the Rhode Island Department of
Environmental Management [DEM]. Vargas alleged that, while
employed at the DEM, he had been subject to racial harassment
and had been terminated because of his national origin, both
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 20002 et seq. Judgment was entered for Durfee after
a three day bench trial. We affirm. Only one issue raised
by Vargas merits extended comment.
Vargas asserts that the district court erred when it
denied his request for a jury trial. Vargas claims that he
had a right to a jury trial because, in addition to equitable
relief, his complaint sought compensatory relief for
emotional distress, embarrassment and humiliation.
Since the conduct alleged in this action occurred before
November 21, 1991, it is not affected by the 1991 Civil
Rights Act which grants a Title VII plaintiff the right to a
jury trial and the right to seek compensatory damages.
Landgraf v. USI Film Prods., 114 S.Ct. 1483, 1505-08 (1994)
(jury trial and compensatory damage provisions do not apply
to conduct occurring before November 21, 1991). While the
Supreme Court has never decided whether a petitioner seeking
back pay is entitled to a jury trial under Title VII for acts
occurring before November 21, 1991, see id. at 1490 n.4, in
this circuit, "'it is well established that Title VII [prior
to the 1991 amendment], being essentially equitable in
nature, does not carry with it the right to trial by jury,'"
even when the plaintiff seeks back pay. Ramos v. Roche
Products, Inc., 936 F.2d 43, 49-50 (1st Cir.), cert. denied,
502 U.S. 941 (1991) (quoting Olin v. Prudential Ins. Co., 798
F.2d 1, 7 (1st Cir. 1986)). Furthermore, since the acts of
which Vargas complains allegedly occurred before the
enactment of the Civil Rights Act of 1991, he was not
entitled to seek compensatory relief. See Landgraf, 114
S.Ct. at 1490 ("Before the enactment of the 1991 Act, Title
VII afforded only 'equitable' remedies."); Phetosomphone v.
Allison Reed Group, Inc., 984 F.2d 4, 7 (1st Cir. 1993)
(compensatory damages were not available under Title VII
before passage of 1991 Civil Rights Act).
Vargas' other claims require only brief responses. We
find no error in the determination by the district court that
Vargas failed to meet his burden of showing by a
preponderance of the evidence that the defendant
discriminated against him on the basis of his race. White v.
Vathally, 732 F.2d 1037, 1040 (1st Cir.), cert. denied, 469
U.S. 933 (1984). The court considered the various bases of
discrimination alleged by Vargas. In each case, the court
found that Vargas had failed to establish an element
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essential to his claim. We have reviewed the record with
care and find no clear error in any of the factual
determinations made by the district court.
Even if Vargas were correct in his allegation that the
Rhode Island Commission for Human Rights violated state law
in its investigation of his claim, Vargas neither raised this
issue before the district court, see Johnston v. Holiday
Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979) (claims not
raised below cannot be raised for the first time on appeal),
nor has he shown on appeal that any violation by the
Commission for Human Rights prejudiced his action in federal
court.
Finally, since no final judgment has entered requiring
Vargas to pay attorneys' fees, this issue is not yet properly
before this court.
Affirmed.
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