Tanca v. Nordberg

November 25, 1996 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 95-1628

JAMES TANCA,

Plaintiff - Appellant,

v.

NILS NORDBERG, COMMISSIONER,

AND THE MASSACHUSETTS DEPARTMENT

OF EMPLOYMENT AND TRAINING,

Defendants - Appellees.

ERRATA SHEET

The opinion of this Court issued on October 28, 1996 is

amended as follows:

On page 13, line 3, delete "lead" and replace it with

"leads".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1628

JAMES TANCA,

Plaintiff - Appellant,

v.

NILS NORDBERG, COMMISSIONER,
AND THE MASSACHUSETTS DEPARTMENT
OF EMPLOYMENT AND TRAINING,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl and Lynch, Circuit Judges.

Scott A. Lathrop, with whom Scott A. Lathrop, P.C. was on

brief for appellant.
Benjamin Robbins, Assistant Attorney General, with whom

Scott Harshbarger, Attorney General of Massachusetts, and Douglas

Wilkins, Assistant Attorney General, were on brief for appellees.

October 28, 1996

TORRUELLA, Chief Judge. Appellant James Tanca
TORRUELLA, Chief Judge.

("Tanca") brought this action alleging retaliation under Title

VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-3, against

his employer, the Massachusetts Department of Employment and

Training ("DET") and Nils Nordberg, Commissioner of the DET.1

The central issue is whether the changes wrought in the law by

section 107 of the Civil Rights Act of 1991, Public Law 102-166

(the "1991 Act"), which explicitly apply only to discrimination

claims (and which were meant to partially overrule Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989)), also apply to claims

of retaliation. We hold that they do not and that the rule of

Price Waterhouse applies to retaliation claims.

BACKGROUND
BACKGROUND

The following facts are drawn from the district court's

Memorandum and Order. Tanca is a white male who was a longterm

DET employee. After several minority employees were promoted

into positions for which Tanca had applied, Tanca complained to

high level DET managers. He believed that he was better

qualified than the promoted employees and that their promotion

was due to reverse discrimination. At some point, a position as

an Unemployment Insurance Manager ("UI") became available in

DET's Hyannis, Massachusetts, office, where Tanca worked, and he

applied. Instead of offering him the Hyannis UI position,

however, DET offered him a similar position in New Bedford,

1 A count alleging violations of Mass. Gen. L. ch. 151B was
voluntarily dismissed.

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Massachusetts. Tanca brought suit, alleging that DET retaliated

against him for making his complaints -- a protected activity --

by refusing him the Hyannis position and offering him the New

Bedford one. Because of the distance between Hyannis, where he

lived, and New Bedford, Tanca described the offered position as

significantly less desirable. DET denied that the decision was

motivated by retaliation, and maintained that it was based solely

on legitimate concerns regarding Tanca's management abilities and

DET's ability to supervise Tanca in New Bedford.

The case was tried before a jury, which found that

Tanca had engaged in good faith activity protected under Title

VII, that the activity was a motivating factor in DET's decision

(and thus that DET had retaliated), but that Tanca would not have

received the Hyannis UI position even absent the illegitimate

consideration. The district court then granted defendants'

Motion for Judgment as a Matter of Law, finding that Price

Waterhouse governed the parties' dispute and that, under that

case, because the jury found that DET would have reached the same

decision absent any retaliatory motives, DET could not be found

liable. This appeal ensued.

DISCUSSION
DISCUSSION

A. Price Waterhouse and the 1991 Act
A. Price Waterhouse and the 1991 Act

We first outline the pertinent law, and then turn to

the interpretation of the statutes in question.

1. The Legal Framework
1. The Legal Framework

At the center of this case sits the Supreme Court's

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decision in Price Waterhouse. In that gender bias decision, the

Court confronted a case in which the adverse employment decision

resulted from a mixture of legitimate and illegitimate motives.

Settling a dispute among the circuits over how to deal with such

"mixed motive" cases, see Price Waterhouse, 490 U.S. at 238 n.2,

the Court determined that "an employer shall not be liable if it

can prove that, even if it had not taken gender into account, it

would have come to the same decision regarding a particular

person." Id. at 242. As the trial court in this case noted,

"[p]ut another way, the Court held that it was an affirmative

defense to a charge of unlawful intentional discrimination to

show that the employer would have made the same decision even in

the absence of an unlawful motive." Memorandum and Order, at 3.

Although Price Waterhouse was a gender case under 42

U.S.C. 2000e-2, the Supreme Court stated that its analysis

extended to the other unlawful employment practices listed in

section 2000e-2(a), namely, "discrimination based on race,

religion, or national origin." Id. at 244 n.9. Subsequent cases

have extended the Price Waterhouse analysis to a series of other

discrimination contexts, including retaliation claims. See

Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039-41 (2d Cir.

1993) (analyzing Title VII retaliation claim under Price

Waterhouse); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d

Cir.) (noting that Price Waterhouse applies to mixed motive

retaliation claims), cert. denied, 510 U.S. 865 (1993), overruled

on other grounds, Miller v. CIGNA Corp., 47 F.3d 586, 596 n.8 (3d

-4-

Cir. 1995); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470-71

(10th Cir. 1992) (applying Price Waterhouse to Title VII

retaliation claim). Indeed, at least one court has analyzed

retaliation claims in terms of Price Waterhouse even subsequent

to the passage of the 1991 Act. See Veprinsky v. Fluor Daniel,

Inc., 87 F.3d 881, 893 (7th Cir. 1996). However, neither the

Supreme Court nor this Circuit has held that Price Waterhouse

applies to retaliation cases.

However, Congress partially overruled Price Waterhouse

in the 1991 Act by allowing a finding of liability and limited

relief to plaintiffs in mixed motive cases. See Landgraf v. USI

Film Prods., 511 U.S. 244, , 114 S. Ct. 1483, 1489 (1994).

First, section 107(a) of that Act, codified at 42 U.S.C. 2000e-

2(m), determines that an employment practice is unlawful even if

there are legitimate, as well as illegitimate, motivations for

it.2 Next, section 107(b) of the Act, codified at 42 U.S.C.

2000e-5(g)(2)(B), establishes that if the plaintiff proves a

violation of section 107(a), but the defendant demonstrates that

it "would have taken the same action in the absence of the

2 Section 107(a) reads:

Except as otherwise provided in this
subchapter, an unlawful employment
practice is established when the
complaining party demonstrates that race,
color, religion, sex, or national origin
was a motivating factor for any
employment practice, even though other
factors also motivated the practice.

42 U.S.C. 2000e-2(m).

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impermissible motivating factor," id., the court may grant

declaratory and injunctive relief as well as attorney's fees,

although it cannot grant other damages, such as monetary relief

or reinstatement.3 Thus, where Price Waterhouse would not have

held there was no liability and so would not have allowed any

damages, the 1991 Act enables an employee in at least some mixed

motive cases to receive certain limited relief.

2. Statutory Interpretation
2. Statutory Interpretation

Tanca argues that the new mixed motive damages

provision applies to all forms of employment discrimination

cases, including his own retaliation claim, and we should allow

him the liability finding and remedies under section 107(b) the

statute permits. We are accordingly faced with an issue of

3 Section 107(b) states, in relevant part, that

[o]n a claim in which an individual proves a
violation under section 2000e-2(m) of this
title and a respondent demonstrates that the
respondent would have taken the same action
in the absence of the impermissible
motivating factor, the court --

(i) may grant declaratory relief,
injunctive relief (except as
provided in clause (ii)), and
attorney's fees and costs
demonstrated to be directly
attributable only to the pursuit of
a claim under section 2000e-2(m) of
this title; and

(ii) shall not award damages or
issue an order requiring any
admission, reinstatement, hiring,
promotion, or payment, described in
subparagraph (A).

42 U.S.C. 2000e-5(g)(2)(B).

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statutory interpretation: do the mixed motive provisions of

section 107(b) extend to Title VII retaliation claims brought

under 42 U.S.C. 2000e-3?

As always, we begin our analysis with the plain

language of the statute. See, e.g., United States v. Ram rez-

Ferrer, 82 F.3d 1131, 1136 (1st Cir. 1996). By doing so, we

immediately encounter Tanca's fundamental problem: as a

retaliation claim, his suit was brought under section 2000e-3,4

and although section 107(b) specifically addresses section

107(a), it makes no mention of section 2000e-3. Indeed, section

107(b) plainly states that it applies to "a claim in which an

individual proves a violation under 2000e-2(m) [107(a)]."

Section 107(a), in turn, specifies that "an unlawful employment

practice is established when the complaining party demonstrates

that race, color, religion, sex, or national origin was a

motivating factor."5 There is no reference to section 2000e-3 or

4 That section, which codifies section 704 of the 1964 Civil
Rights Act, makes it an unlawful employment practice for an
employer to discriminate against an employee

because he has opposed any practice made
an unlawful employment practice by this
subchapter, or because he has made a
charge, testified, assisted, or
participated in any manner in an
investigation, proceeding, or hearing
under this subchapter.

42 U.S.C. 2000e-3(a).

5 The parties do not make an argument on the basis of the
"[e]xcept as otherwise provided in this subchapter" language of
section 107(a), quoted in footnote 2, supra. We note that we do

not read the quoted language as expanding the scope of 2000e-
2(m) to include retaliation claims. Indeed, such an argument

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retaliation claims in either provision. As the district court

found, "nothing in the 1991 Act would appear to change any rule

with respect to retaliation claims which existed prior to its

enactment." Memorandum and Order, at 8; cf. Sunshine Dev., Inc.

v. FDIC, 33 F.3d 106, 116 (1st Cir. 1994) ("[A] legislature's

affirmative description of certain powers or exemptions implies

denial of nondescribed powers or exemptions."). On its face,

then, the statute seems to express an intent not to preclude

application of Price Waterhouse in the context of mixed-motive

retaliation cases. See Reiss v. Dalton, 845 F. Supp. 742, 744

(S.D. Cal. 1993) (rejecting application of section 107(b) to

Title VII mixed motive retaliation claim as contrary to the plain

meaning of the statute).

Tanca argues otherwise. He maintains that reliance on

the plain meaning of the statute would be inappropriate, because

the "clear" legislative history demonstrates that Congress

intended that other employment statutes modeled after Title VII

adopt its new mixed motive analysis.6 See Greenwood Trust Co. v.

"would require us to assume that Congress chose a surprisingly
indirect route to convey an important and easily expressed
message." Landgraf, 511 U.S. at 262.

6 Tanca also seeks support from section 3(4) of the 1991 Act.
That section states that one of the Act's purposes was "to
respond to recent decisions of the Supreme Court by expanding the
scope of relevant civil rights statutes in order to provide
adequate protection to victims of discrimination." Although this
language lends credence to the premise that Congress sought to
overturn Price Waterhouse at least in part, it does not

necessarily follow that Congress felt victims of discrimination
could only be "adequate[ly] protect[ed]" if a new rule was
established in relation to retaliation claims as well as the
enumerated discrimination claims.

-8-

Massachusetts, 971 F.2d 818, 825 (1st Cir. 1992) ("[A] court must

always hesitate to construe words in a statute according to their

apparent meaning if to do so would defeat Congress's discovered

intendment."), cert. denied, 506 U.S. 1052 (1993).

First, he argues that, because we "must presume that

Congress knows of prior judicial or executive branch

interpretations of a statute when it . . . amends a statute,"

Ram rez-Ferrer, 82 F.3d at 1137, we must presume that Congress

knew of the judicial practice of borrowing the order and

allocations of burdens of proof developed under Title VII and

applying them to retaliation cases and other employment

discrimination cases. See, e.g., Griffiths, 988 F.2d at 468.

Therefore, the argument goes, Congress' failure to amend all

other employment discrimination statutes at the same time that it

amended section 2000e-2 can mean that Congress presumed that the

courts would continue to borrow and apply Title VII concepts,

including the newly minted mixed motive damages provision.

Indeed, there is some arguable support in the legislative history

for his position. The House Report from the Judiciary Committee

states that

[t]he Committee intends that . . . other
laws modeled after Title VII be
interpreted consistently in a manner
consistent with Title VII as amended by
this Act. For example, disparate impact
claims under the ADA should be treated in
the same manner as under Title VII.

H.R. Rep. No. 40(II), 102d Cong., 1st Sess. 4 (1991), reprinted

in 1991 U.S.C.C.A.N. 694, 697.

-9-

Assuming arguendo that Congress did intend the section

107 model to apply beyond Title VII, Tanca's argument still

fails. Simply put, Tanca is not arguing that we borrow a Title

VII concept and use it to interpret another statute, such as the

ADA. Rather, he wants us to read one Title VII provision into

another. He contends that Congress wanted us to do such

borrowing, but it seems just as likely that because Congress knew

of the judicial borrowing, in order to avoid such borrowing it

specified which particular aspects of Title VII would be affected

by referencing 107(a) in section 107(b). Tanca cites no

legislative history that suggests otherwise.

This interpretation gains additional support from the

fact that "'[w]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.'"

Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).

Section 102 of the 1991 Act, codified at 42 U.S.C. 1981a,

provides for compensatory and punitive damages and specifies that

its provisions will apply to complaining parties who bring an

action under section 2000e-3 -- the retaliation section at issue

here -- as well as 2000e-2. 42 U.S.C. 1981a(a)(1). Thus,

because Congress addressed the retaliation section elsewhere in

the 1991 Act, but chose not to do so in section 107(a) or (b), it

would seem that "where Congress intended to address retaliation

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violations, it knew how to do so and did so expressly."7 Reiss,

845 F. Supp. at 745. Second, Tanca cites a series of additional

passages from the legislative history in arguing that Congress

intended that no part of the prior Price Waterhouse mixed motive

analysis should remain in effect. As Tanca argues, statements

such as the following could be read to support the premise that

the 1991 Act should be read liberally as regards mixed motive

cases:

If Title VII's ban on discrimination in
employment is to be meaningful, victims
of proven discrimination must be able to
obtain relief, and perpetrators of
discrimination must be held liable for
their actions. Price Waterhouse

jeopardizes that fundamental principle.

H.R. Rep. 40(I), 102d Cong., 1st Sess. 47 (1991), reprinted in

1991 U.S.C.C.A.N. 549, 585 (Education and Labor Committee

Report).

We need not enter into his argument in detail, however,

as our review of this and the other passages of the legislative

history on which Tanca seeks to rely leads us to the conclusion

that Congress' intent remains unclear regarding the application

of the 1991 Act to Title VII mixed motive retaliation claims.

Indeed, such claims are never directly addressed in the cited

7 Indeed, although section 107(b) does not reference retaliation
claims, the already existing subsection immediately preceding it
in Title VII does. See 42 U.S.C. 2000-e(5)(g)(2)(A). As

appellees note, the inclusion of retaliation claims in one
subsection, juxtaposed with their omission in the next, tends to
support the premise that Congress' omission of the claim in the
latter provision was intentional. See Reiss, 845 F. Supp. at

745.

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legislative history. "'Absent a clearly expressed legislative

intention to the contrary [the] language [of a statute] must

ordinarily be regarded as conclusive.'" Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (quoting Consumer

Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980)). Therefore, as the plain meaning of the statute is

clear, and this is not a statute whose "meanings . . . take on

different colorations when read in their legislative and

historical context," Greenwood Trust Co., 971 F.2d at 826, we

conclude that the mixed motive provisions of section 107 of the

1991 Act do not apply to Title VII retaliation claims brought

under section 2000e-3.

We are conscious that our decision in this case goes

against those of some federal courts that have looked at this

issue. However, examination of the cases Tanca cites as support

for his argument reveals that, although all of them would apply

section 107(b) to Title VII mixed motive retaliation claims, and

some of them examined the legislative history in drawing that

conclusion, none of them weighed the plain language of the

statute prior to borrowing the provision. See Beinlich v. Curry

Dev., Inc., 54 F.3d 772 (table), No. 94-1465, 1995 WL 311577 (4th

Cir. May 22, 1995) (unpublished disposition) (citing sections

107(b) and 2000e-3(a), without applying them, in retaliation

claim); Woodson, 898 F. Supp. at 304-06 (pretext case); Hall v.

City of Brawley, 887 F. Supp. 1333, 1345 (S.D. Cal. 1995); Jones-

Bell v. Illinois Dept. of Employment Sec., No. 95 C 948, 1995 WL

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692321, at *6-*7 (N.D. Ill. Nov. 20, 1995).8 Indeed, the only

case we found that examined the statute under traditional

statutory interpretation methods supports our conclusions here.

See Reiss, 845 F. Supp. at 744-45. Nothing in the cited cases or

others we have examined leads us to question our conclusion. We

also believe that the Price Waterhouse rule does apply to mixed

8 The parties cite one case from this circuit. In Selgas v.

American Airlines, Inc., 858 F. Supp. 316 (D.P.R. 1994), the

district court was faced with a claim that the jury's answers to
special interrogatories regarding Title VII retaliation and sex
discrimination claims were contradictory. The employer, American
Airlines, argued that the jury found that American would have
made the same employment decisions even if Selgas' gender were
not taken into account, and so American had an absolute defense
under Price Waterhouse. The district court found that

supplemental questions put to the jury remedied any
inconsistencies in the verdict, but noted in passing that the
1991 Act had overruled Price Waterhouse. Id. at 318 n.2. The

district court cited Robinson v. Southeastern Pa. Transp. Auth.,

982 F.2d 892 (3d Cir. 1993), as support for that proposition.
Examination of Robinson shows that the court there cited the 1991

Act only for the proposition that "Title VII contemplates that a
corporation may be liable for dismissing an employee when its
motives contain a mixture of legitimate and illegitimate
reasons." Id. at 899 & n.8. As the underlying dispute in

Robinson was tried prior to the 1991 Act's enactment, the court

did not apply it to the dispute.

A panel of this court affirmed in part and vacated in part
the district court's decision. See Kerr-Selgas v. American

Airlines, Inc., 69 F.3d 1205 (1st Cir. 1995). The panel found

that American had no alternative just cause to fire Selgas. Thus
neither Price Waterhouse nor the 1991 Act was implicated. Id. at

1210-11. In outlining American's failed argument, the panel
cited Griffiths v. CIGNA Corp. for the proposition that section

107(b)'s affirmative defense would apply to the retaliation
claim. Id. at 1210; see Griffiths, 988 F.2d at 472. However,

the court in Griffiths neither applied section 107(b) to the

plaintiff's retaliation claim nor engaged in any statutory
interpretation of its applicability, as that case was brought
prior to the application of the 1991 Act. In the end, we find
that, although there is some suggestion in Kerr-Selgas that the

1991 Act should apply to Tanca's claim, neither of the cases
relied on for that proposition, nor Kerr-Selgas itself, supplies

us with any reason to doubt the result reached here today.

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motive retaliation claims. Accordingly, we weigh the remainder

of Tanca's arguments under Price Waterhouse.

B. The Jury Instructions
B. The Jury Instructions

Tanca's next argument centers on the jury instructions.

Question four on the jury verdict form asked: "Would the

employer have offered Mr. Tanca a promotion in Hyannis were it

not for plaintiff's protected opposition?" The jury sent a note

to the judge regarding question four as follows:

Does the word "a" refer to any promotion
in the Hyannis office or the specific UI
position for which Mr. Tanca had applied?

The court replied that

[t]he words "a promotion" in Question 4
refers [sic] to the specific UI position
for which Mr. Tanca had applied.

The jury then returned a verdict answering question four in the

negative, finding that DET would not have offered Tanca the UI

position in Hyannis, even without the illegitimate motivations.

Tanca argues now that the UI position was not the only

Hyannis position that the jury should have considered. In fact,

he points out, after naming the new Hyannis UI, DET created a new

manager position below the UI in Hyannis, which would also have

been a promotion for Tanca. This position was not offered to

Tanca. Based on this, Tanca claims DET did not satisfy its

burden of proof under Price Waterhouse in that it did not prove

that it would have come to the same decision even if it had not

taken the unlawful motive into account. See Price Waterhouse,

490 U.S. at 244. The pertinent decision here, he contends, was

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DET's choice to offer him a position in New Bedford, and not one

in Hyannis. While the jury found that DET would not have offered

him the Hyannis UI position, it did not find that DET would not

have offered him the new manager position either, he maintains,

because it was not asked. Therefore, he continues, the court

should have responded to the jury's inquiry by telling them that

question four referred to any promotion in the Hyannis office.

Since it did not, he concludes, DET has not met its burden under

Price Waterhouse. Tanca acknowledges that he did not object to

the district court's response, but contends that it was not his

duty to do so: as DET had to prove each element of its defense,

he argues, it should have objected.

Our review of the record below, however, reveals no

mention of the new manager position in Tanca's Complaint,

Opposition to Defendants' Motion for Summary Judgment, Pre-trial

Memorandum, Trial Brief, Motion for a New Trial, or Opposition to

Defendants' Motion for Judgment. Nor did Tanca object to either

the jury instructions or the judge's answer to the jury's

question on these grounds. Accordingly, we find that by failing

to squarely raise any question regarding the new manager position

before the district court, Tanca has waived the opportunity for

argument on that point here. See Timberland Design v. First

Serv. Bank for Sav., 932 F.2d 46, 51 (1st Cir. 1991) ("It is

clearly established that arguments not raised at the district

court level will not be considered on appeal."); see also

Kavanaugh v. Greenlee Tool Co., 944 F.2d 7, 10 (1st Cir. 1991);

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Nimrod v. Sylvester, 369 F.2d 870, 872 (1st Cir. 1966). Even

were we not to find waiver, Tanca's position would fail. Simply

put, we cannot see how the trial court could have felt that

anything besides the UI position was at issue.9 The district

court, therefore, did not err in its answer to the jury's

question, as the pertinent issue was not whether any Hyannis

position would have been offered Tanca, but whether the UI

position would have been offered.

CONCLUSION
CONCLUSION

In view of the above the judgment of the district court

is affirmed.

9 For example, in his Pre-Trial Memorandum, Tanca listed only
two contested issues of fact:

A. The reasons why Mr. Tanca was not
awarded the position of U. I. Manager in
Hyannis, Massachusetts.

B. Mr. Tanca's damages.

See Correa v. Hospital San Francisco, 69 F.3d 1184, 1195 (1st

Cir. 1995) (noting that failure to raise an issue in the final
pretrial order generally constitutes waiver).

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