United States Court of Appeals
For the First Circuit
No. 97-2163
EDWARD HERNANDEZ-TORRES, ET AL.,
Plaintiffs, Appellants,
v.
INTERCONTINENTAL TRADING, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hctor M. Laffitte, U.S. District Judge]
Before
Boudin, Circuit Judge,
Schwarzer, Senior District Judge,
and Saris, District Judge.
Kevin G. Little, with whom Law Offices David Efrn was on
brief, for appellants.
Jos R. Garca-Prez, with whom Bufete Bennazar, C.S.P. was on
brief, for appellees.
October 13, 1998
SCHWARZER, Senior District Judge. Edward Hernndez- Torres, his
wife Mara de los Angeles Jimnez, and the conjugal partnership
constituted between them (collectively "Hernndez") sued Master
Foods Interamerica ("MFI") and its parent company, Mars, Inc.
("Mars"), for religious discrimination in violation of 42 U.S.C.
2000e-2, e-3 ("Title VII") and Puerto Rican Law. Hernndez
alleged in his complaint that MFI subjected him to a hostile work
environment and constructively discharged him.
At the conclusion of the jury trial, the district court granted
judgment as a matter of law to defendants on the constructive
discharge claim. The jury returned a verdict in favor of
defendants on the hostile work environment claim. Hernndez
moved for a new trial pursuant to Federal Rules of Civil
Procedure 59, which the district court denied.
Hernndez appeals from the district court's judgment as a matter
of law and the denial of his motion for a new trial. We have
jurisdiction pursuant to 28 U.S.C. 1331 and 1367, and we
affirm.
BACKGROUND
Hernndez began working for MFI in 1987, first temporarily and
later permanently, as an accounts payable clerk. He was
supervised by Angel Rodrguez in 1988, Hctor Rodrguez in 1991,
and Julio Ocampo throughout his employment.
He had become involved with a Christian group known as Defensores
de la Fe shortly before he obtained a position at MFI. He
alleges that his supervisors, including Ocampo, were fully aware
of his fundamentalist beliefs when they offered him a job and
that he rarely engaged in religious activities during scheduled
work hours.
Hernndez made the following allegations of religious
discrimination and retaliation:
A. 1988 Incident with Angel Rodrguez
Hernndez contends that Angel Rodrguez repeatedly told offensive
religious jokes in his presence and unjustly criticized
Hernndez' work. Hernndez lashed out at Rodrguez on one such
occasion, prompting Rodrguez to reprimand Hernndez in writing
for insubordination and the use of profane language. He
responded with a complaint in which he alleged that Rodrguez was
persecuting him for religious reasons. Upon Ocampo's
intervention, Hernndez admitted his insubordination and
apologized in writing.
B. 1991 Incident with Ocampo
Ocampo spotted Hernndez reading the Bible during his lunch break
sometime after the summer of 1991. Although Ocampo knew that
Hernndez was at lunch, he told Rodrguez to instruct Hernndez
to stop reading the Bible. Hernndez did not file a complaint or
make a written record of the incident.
Hernndez received training for MFI's new accounting system in
1992. Shortly thereafter, Ocampo granted Hernndez' request for
a temporary employee to help Hernndez implement the accounts
payable systems and complete his preexisting duties. Hernndez
later began working with the refurbished payroll conversion
system.
C. September 2, 1992, Incident with Ocampo
On September 2, 1992, Hernndez was on the telephone when a co-
worker passed him a religious pamphlet. Hernndez alleges that
Ocampo noticed the religious tract on his desk, called him into a
conference room and threatened to fire him if he was caught
reading or even speaking of religious matters again. Hernndez
consulted Nellie Negrn, MFI's personnel manager, the same day
and attempted to file a state insurance fund application to
obtain treatment for stress. Negrn dissuaded him from filing
the claim and he eventually attended sessions with MFI's in-house
psychologists. Hctor Rodrguez sent Hernndez a memorandum on
September 3 requesting that he refrain from reading nonjob-
related materials during work hours. Hernndez wrote a letter
clarifying that he had been reading religious literature and
apologizing for his conduct. He contends that Ocampo challenged
him to a fight after reading this letter, which prompted
Hernndez to apprise the personnel department of the encounter
and resubmit his state insurance fund application. Negrn's
assistant arranged a meeting with Ocampo and various MFI
officials to discuss the incident. Ocampo extended an apology to
Hernndez after the meeting, which he accepted.
Hernndez alleges that despite Ocampo's apology, his employment
situation worsened following the September 1992 incident.
Specifically, he felt pressured to complete his assigned tasks in
eight hours and feared that working overtime would result in his
discharge from MFI. In fact, he was granted overtime each time
he requested it and was the only accounting employee who received
payment for the extra work. Hernndez also noted a marked
increase in electronic messages assigning him additional duties
commenting on his lack of productivity after September 1992.
However, his supervisors, including Ocampo, continued to commend
his performance, and Ocampo approved the hiring of another
temporary employee to ease Hernndez' burden in November 1992.
Hernndez resigned on February 2, 1993, after learning that
Ocampo had decided to terminate his temporary help. Rodrguez
confirmed Hernndez' resignation in a February 2 memo which made
no reference to religious discrimination. At Ocampo's request,
Hernndez continued to work until the end of the week. Although
Hernndez initially cited stress-related reasons for his
resignation, in a February 5 memorandum he referred to the
September 1992 incident with Ocampo as the source of his
employment difficulties. DISCUSSION
I. REFUSAL TO INSTRUCT ON RETALIATION
The district court denied Hernndez' motion for a new trial,
rejecting his contention that the court should have instructed
the jury on the retaliation claim. It stated that it refused to
give an instruction because "there was no evidence in the Record
to support the allegation that Defendants discriminated against
Plaintiff as a result of his opposition to any alleged employment
practice." Hernndez contends that the court erred in refusing
to instruct on retaliation. He argues that Ocampo's retaliatory
conduct, which resulted in a workplace permeated with harassment
and in Hernndez' ultimate "discharge," was supported by
substantial evidence at trial.
Title VII makes it unlawful for an employer to retaliate against
an employee:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . 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). To establish a prima facie case of
retaliation in the workplace, Hernndez must demonstrate that:
(1) He engaged in protected conduct under Title VII; (2) he
suffered an adverse employment action; and (3) the adverse action
is causally connected to the protected activity. See Fennell v.
First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
We assume for purposes of this disposition that Hernndez engaged
in protected activity and that his informal complaint to the
personnel department constituted sufficient opposition. His
appeal fails, however, because he did not suffer an adverse
employment action. Section 2000e-3 encompasses a variety of
adverse employment actions, including demotions, disadvantageous
transfers or assignments, refusals to promote, unwarranted
negative job evaluations, and toleration of harassment by other
employees. See Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.
1994) (citing 3 Arthur Larson & Lex K. Larson, Employment
Discrimination, 87.20, at 17-101 to 17-107 (1994)). The
evidence reflects none of such actions.
Hernndez complains that he received an increased amount of
electronic messages which contained onerous assignments and what
Hernndez interpreted as critical reports on his productivity.
This influx of electronic messages does not, however, rise to the
level of an adverse action because MFI supervisors similarly
urged all MFI accounting employees to implement the new systems
quickly and efficiently. Significantly, Hernndez continued to
receive favorable performance evaluations from his supervisors,
including a November 25 memorandum lauding his installation of
the payroll system. Ocampo's alleged admonition that Hernndez
complete his work within an eight hour period "or else" does not
constitute adverse action. Hernndez was granted overtime each
time he requested it and was the only accounting employee who
received temporary assistance and payment for working overtime.
Cf. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)
(holding that divesting employee of assignments and
responsibilities establishes an adverse employment action).
Hernndez has failed to offer facts indicating that his informal
complaint caused any adverse actions. Specifically, Hernndez'
accusations are "lacking in the concrete documentation necessary
to prove the causal link between [his] protected activity and
[his] retaliatory treatment." See Ramos v. Roche Prods., Inc.,
936 F.2d 43, 49 (1st Cir. 1991). First, the additional
responsibilities outlined in the electronic messages, though
onerous, resulted from a policy that Hernndez agreed to
implement long before Ocampo asked him to "go outside." See,
e.g., Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31
F.3d 9, 16 (1st Cir. 1994) (holding that employee failed to
establish causal link between employee's involvement in protected
union activity and August 1990 probation because there was no
evidence in the record that union activity occurred before then);
Ramos, 936 F.2d at 49 (noting that petitioner was passed over for
promotion twice before signing affidavit with EEOC in reaching
conclusion that petitioner failed to establish causal link
between protected activity and adverse employment action).
In addition, that Ocampo imposed disadvantageous assignments and
directed that work be completed in eight hours "or else" does not
constitute retaliation. Hernndez' accounting coworkers were
required to work long hours as well. If Hernndez was singled
out, it was in a laudatory fashion as the only accounting
employee to receive overtime pay or temporary assistance in late
1992 and early 1993. In sum, he failed to present evidence
sufficient to raise an inference that the additional stress he
experienced at MFI after September 1992 resulted from retaliation
rather than from the previously agreed upon implementation of
MFI's new accounting system.
Finally, Hernndez' claim that he suffered a retaliatory
constructive discharge fails. A "discharge" under 2000e-3(a)
may be constructive as well as a direct firing. See Hart v. University Sys., 938 F. Supp. 104, 111 (D.N.H. 1996) (holding
that employee established material issue of fact as to
retaliatory constructive discharge); see also Munday v. Waste
Management of N. America, Inc., 126 F.3d 239, 243 (4th Cir. 1997)
(explaining that constructive discharge is adverse employment
action when "record discloses that it was in retaliation for the
employee's exercise of rights protected by the Act"), cert.
denied, 118 S. Ct. 1053 (1998). To prove a retaliatory
constructive discharge, Hernndez must establish that his work
environment was hostile. See Smith v. Bath Iron Works Corp., 943
F.2d 164, 166 (1st Cir. 1991) (noting that magistrate judge found
that employee established hostile work environment element of
constructive discharge); see also Schwapp v. Town of Avon, 118
F.3d 106, 112 (2d Cir. 1997) (holding that constructive discharge
claim "rises or falls on the determination of the hostile work
environment facts"); Konstantopoulos v. Westvaco Corp., 112 F.3d
710, 718 (3d Cir. 1997) (holding that in light of court's
conclusion that no hostile work environment existed when
petitioner left her place of employment, she cannot prove "the
necessary predicate to maintain a constructive discharge claim"),
cert. denied, 118 S. Ct. 1079 (1998); Landgraf v. USI Film
Prods., 968 F.2d 427, 430 (5th Cir. 1992) ("To prove constructive
discharge, the plaintiff must demonstrate a greater severity or
pervasiveness of harassment than the minimum required to prove a
hostile working environment."). Because the jury, with all of
Hernndez' evidence on his retaliation claim before it, returned
an adverse verdict on his hostile work environment claim, he
cannot succeed on his retaliatory constructive discharge claim.
Hernndez argues that another jury might find the requisite
hostile work environment, but he has had his day in court and is
not entitled to a new trial on that speculation alone. The jury
having rejected the hostile work environment claim, it
necessarily rejected the basis for the retaliatory constructive
discharge claim.
II. REJECTION OF PROFFERED HARRIS INSTRUCTION
The district court's hostile work environment instruction
correctly informed the jury of the requisite elements of
Hernndez' claim, stating in pertinent part:
You must determine whether there was hostile religious harassment
based on the totality of the circumstances, and you may consider
the following factors: The total physical environment of the
plaintiff's work area; the nature of the unwelcome acts or words;
the frequency of the offensive encounters; the severity of the
conduct; and the context in which the religious harassment
occurred; whether the conduct was unwelcome; and the effect o[n]
the plaintiff's psychological well-being . . . .
Hernndez unpersuasively argues that the court failed to follow
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), when it
refused to instruct the jury that "to be actionable, a hostile
environment need not seriously affect an employee's psychological
well-being or lead the employee to suffer injury."
The court's instruction, fairly read, conforms to the HarrisCourt's holding that "while psychological harm, like any other
relevant factor, may be taken into account, no single factor is
required." Id. at 23. The instruction adequately explained the
law regarding Hernndez' hostile work environment claim. SeeMcKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981) ("As
long as the judge's instruction properly apprises the jury of the
applicable law, failure to give the exact instruction requested
does not prejudice the objecting party.").
III. REJECTION OF "MOTIVATING FACTOR" INSTRUCTIONS
Hernndez argues that the district court erred in refusing to
instruct the jury that an employee's religious beliefs need only
be a motivating factor rather than the sole reason for actionable
mistreatment under the Civil Rights Act of 1991. See 42 U.S.C.
2000e-2(m).
The court declined to give Hernndez' proposed instructions and
overruled his objection, noting that a jury instruction on
motivation is inapposite in the context of a hostile work
environment claim. The court further held that its hostile work
environment charge adequately instructed the jury that Hernndez'
religious convictions did not have to be the sole motivating
factor for the alleged harassment and hostile work environment.
The court's instruction, fairly read, does not imply that
Hernndez was required to prove that religious discrimination
constituted the sole motivation for defendants' conduct. It
"properly apprise[d] the jury of the applicable law." SeeMcKinnon, 638 F.2d at 274.
IV. CONSTRUCTIVE DISCHARGE CLAIM
Hernndez contends that the evidence was sufficient to warrant
submission of his constructive discharge claim to a jury. As
discussed above, Hernndez' constructive discharge claim fails
because the jury rendered an adverse verdict on the requisite
hostile work environment claim.
V. ADMISSION AND EXCLUSION OF WITNESS TESTIMONY
We review the admission or exclusion of evidence for abuse of
discretion. See Cohen v. Brown Univ., 101 F.3d 155, 185 (1st
Cir. 1996), cert. denied, 117 S. Ct. 1469 (1997). We review the
district court's balancing of probative value against prejudicial
impact to determine "whether the balance actually struck is so
egregiously one-sided that it requires reversal." Espeaignnettev. Gene Tierney Co., 43 F.3d 1, 8 (1st Cir. 1994). A. Admission of Sandra Marrero's Testimony
Hernndez argues that the district court, over his repeated
objection, erroneously permitted Sandra Marrero to testify. He
further contends that defendants violated Federal Rule of Civil
Procedure 26(a)(3) because Marrero went unnamed during the
discovery period. He complains that had her identity been
timely disclosed, he might have deposed her instead of another
witness in conformity with the court's allotment of five
depositions. The court ruled that Hernndez' argument was
"meritless" and did "not require additional discussion."
The district court did not err. Federal Rule of Civil Procedure
26(a)(3) does not require disclosure of a prospective witness'
identity during the discovery period. Rather, Rule 26(a)(3)(C)
declares that "[u]nless otherwise directed by the court, these
disclosures shall be made at least 30 days before trial."
Marrero was named as a witness in the October 16, 1996, pretrial
order, well over thirty days before trial commenced on November
21, 1996.
B. Exclusion of Victor Nales and Jasmin Vsquez as
Witnesses
Hernndez argues that the district court erred in excluding the
testimony of Victor Nales and Jasmin Vsquez. Hernndez alleges
that Nales and Vsquez were identified in his initial
administrative complaint and were included in the collective
description "employees or representatives of the defendants"
offered during the discovery period. He further contends that
the court's decision to exclude Nales and Vsquez affected the
outcome of the trial because they were the only former MFI
employees listed in the pretrial order and thus would have
corroborated his testimony. The district court summarily
dismissed Hernndez' claim, noting that the issue did "not
require additional discussion."
The district court did not abuse its discretion. The exclusion
of Nales and Vsquez as witnesses was harmless because the
pretrial order did not distinguish between the testimony of
Nales and Vsquez and that of the eight MFI employees listed in
the same group of prospective witnesses. Without specifying what
Nales and Vsquez would have testified at trial, Hernndez has
not shown that their testimony would not be cumulative. See Hallv. Arthur, 141 F.3d 844, 849 (8th Cir. 1998) (holding that
exclusion of testimony was harmless because testimony was
cumulative and "defendants did not make their offer of proof in
the form of questions and answers"). Hernndez' general
assertion that the prospective witnesses would have corroborated
his testimony concerning religious harassment at MFI is
insufficient. See McDonald v. Steward, 132 F.3d 225, 232 (5th
Cir. 1998) ("The burden of proving substantial prejudice lies
with the party asserting error.") (citing Federal Deposit Ins.
Corp. v. Mijalis, 15 F.3d 1314, 1319 (5th Cir. 1994)).
CONCLUSION
We affirm the district court's entry of judgment as a matter of
law and its denial of Hernndez' motion for a new trial.