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.

                               -2-


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

                               -3-


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).

                               -5-


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).

                               -6-


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

                               -7-


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

                               -10-


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.

                               -11-


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
                                                    

                               -12-


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.  

                               -13-


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

                               -14-


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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