United States Court of Appeals
For the First Circuit
No. 20-1792
FRANCISCO J. REYES-CAPARROS,
Plaintiff, Appellant,
v.
MERRICK B. GARLAND,*
UNITED STATES ATTORNEY GENERAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Joseph N. Laplante,** U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and McConnell,*** District Judge.
Bamily López-Ortiz, with whom Lizabel M. Negron-Vargas was on
brief, for appellant.
Sean R. Janda, Attorney, Civil Division, United States
Department of Justice, with whom Nathaniel R. Mendell, Acting
United States Attorney, District of Massachusetts, and Jason C.
Weida, Assistant United States Attorney, District of
Massachusetts, were on brief, for appellee.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the defendant-appellee.
** Of the District of New Hampshire, sitting by designation.
*** Of the District of Rhode Island, sitting by designation.
February 22, 2022
MCCONNELL, District Judge. Francisco J. Reyes-Caparros
("Mr. Reyes"), a former intelligence specialist for the United
States Attorney's Office ("USAO") for the District of Puerto Rico,
sued his former employer under Title VII of the Civil Rights Act
of 1964 alleging discriminatory retaliation and constructive
discharge resulting from a hostile work environment. A jury
returned a verdict on liability for retaliation and awarded
Mr. Reyes the statutory maximum of $300,000 in damages. Because of
the equitable nature of damages for constructive discharge and at
the urging of both parties, the district court charged the jury to
return an advisory verdict on that issue. That verdict was also in
Mr. Reyes's favor, so he then sought a judgment of front and back
pay from the district court. The court rejected the jury's advisory
verdict on the basis that the verdict was not supported by the
evidence, determining that Mr. Reyes was not constructively
discharged and therefore not entitled to front or back pay.
Mr. Reyes appeals, arguing that the jury's verdict on
constructive discharge was not advisory, but binding on the
district court. He also argues that the district court committed
legal error in rejecting that verdict and making its own findings
on constructive discharge. Because there was no clear error in the
district court's findings, we affirm.
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I. Facts
"We recount the facts as supportably found by the
district court." Bolduc v. United States 402 F.3d 50, 52 (1st
Cir. 2005); see also Gonzalez-Rucci v. INS, 539 F.3d 66, 67 (1st
Cir. 2008) ("As this case comes to us following a bench trial, we
recount the relevant facts as found by the district court,
consistent with record support.").
Mr. Reyes worked for the USAO for the District of Puerto
Rico as an Intelligence Specialist, from 2009 until he resigned in
February 2015. Mr. Reyes's problems at work began in February
2012 when he gave a ballistic vest to an Assistant United States
Attorney, who unbeknownst to Mr. Reyes had filed an employment
discrimination claim against the office. Days later, he was called
into a management meeting and chastised for supplying the vest to
one of the office "crazies" and "helping her become a victim."
Mr. Reyes points to this as the moment when three years
of retaliatory conduct by his supervisors against him began,
creating a hostile work environment. He alleges that his
supervisors micromanaged him, moved his office, and unjustly
reprimanded him. Mr. Reyes also came under investigation in October
2013 by the Federal Bureau of Investigation ("FBI") and the
Department of Justice's Office of Inspector General ("OIG") after
he accepted an invitation to attend a program in Russia hosted by
an organization led by a known Russian spy. This investigation led
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to the FBI restricting his access to FBI-controlled office space
and information during its pendency. The restrictions caused
Mr. Reyes to be furloughed during the 2013 government shutdown
and, when he returned to work, he was reassigned to paralegal
duties. Shortly thereafter, Mr. Reyes filed his first Equal
Employment Opportunity ("EEO") complaint alleging retaliation.
During this time, Mr. Reyes was reprimanded for posting
an inappropriate picture of a security guard and gossiping about
co-workers suspected of having an affair, and suspended for lack
of candor and negligent performance of an assignment in which he
was tasked with collecting and presenting statistics related to
firearms cases prosecuted by the USAO. His supervisor asked him
for a doctor's note when he took a full day's leave for a medical
appointment after pictures of him on the beach that same day were
posted on Facebook.
He says his supervisors retaliated against him by
heavily editing a memorandum he submitted to the chief of the
Appellate Division. Mr. Reyes alleged that a move to a different
building where he was assigned to work on Social Security fraud
investigations was retaliatory. The OIG investigation resulted in
a report that Mr. Reyes violated Department of Justice travel
policy and showed poor judgment in accepting the Russian diplomat's
invitation.
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Mr. Reyes filed a second complaint with the department's
Equal Employment Office in October 2014. The record suggests that
the plaintiff had been considering a career transition for some
time. He had been attending law school and, around the same time,
he began looking for other jobs, speaking with a relative in
Florida about an attorney position within his law firm. He sought
to be reinstated as an intelligence specialist but he could not
fulfill all the duties of that role. This was because, even though
OIG finished its investigation and issued a report, his access to
FBI physical space and information was still restricted, because
the FBI had not completed its investigation. In February 2015,
Mr. Reyes resigned his position with the USAO alleging the
supposedly "unfounded" investigation of him as well as some of
these incidents described above. Ultimately, Mr. Reyes accepted
the position with his relative's law firm.
Mr. Reyes sued his former employer under Title VII citing
a single claim of discrimination and retaliation and seeking both
money damages and equitable relief. Prior to the start of trial
and in response to a proposed jury instruction on constructive
discharge that Mr. Reyes requested, the government filed a motion
to preclude evidence of front pay and back pay at trial on the
ground that that issue was not a part of his case. The district
court granted that motion, but held that "in the event of a verdict
in the plaintiff's favor, the court will permit further briefing
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and argument on the availability of these remedies in equity and,
if they are available, it will hold a post-trial evidentiary
hearing on damages."
After the close of evidence, Mr. Reyes again requested
a constructive discharge instruction and a verdict form question
on constructive discharge. The government objected; the district
court decided to instruct the jury on constructive discharge, but
limit the jury's decision on this issue to an advisory finding.
Mr. Reyes did not object to this instruction. The jury returned a
verdict for Mr. Reyes, awarded him $300,000 in damages, and
rendered an advisory finding that Mr. Reyes had been constructively
discharged.
Post verdict, the government filed a Rule 50 motion,
which the district court denied, and Mr. Reyes sought equitable
relief of back and front pay on the constructive discharge advisory
verdict. After inviting the parties to provide further argument
and evidence, the district court determined that Mr. Reyes was not
entitled to equitable relief on two grounds. It concluded first
that Mr. Reyes's failure to assert a separate constructive
discharge claim barred his claim to any equitable relief. The
district court also independently reviewed the evidence at trial
against the jury's advisory verdict and disagreed that it supported
the jury's finding that he was constructively discharged. The court
rejected the jury's advisory verdict and denied Mr. Reyes's request
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for equitable relief; this appeal of our denial of equitable relief
ensued.1
II. Analysis
While the parties raise several tangential issues in
their briefing,2 there are two main issues for the court's review:
whether Mr. Reyes waived his objection to the district court's
decision to submit the constructive discharge issue for an advisory
verdict and whether the district court's decision to reject the
advisory jury's verdict in Mr. Reyes's favor was clearly erroneous.
A. Mr. Reyes Waived His Objection to the District Court's
Decision to Submit the Constructive Discharge Issue to an
Advisory Jury
Federal Rule of Civil Procedure 39(c)(1) "grants a
district court the discretion to empanel an advisory jury either
on a party's motion or sua sponte." United States v. Shields, 649
F.3d 78, 83 n.5 (1st Cir. 2011). A decision to do so is reviewed
for abuse of discretion. See, e.g., Schaffart v. ONEOK, Inc., 686
F.3d 461, 475 (8th Cir. 2012); Banco Indus. De Venezuela, C.A. v.
Credit Suisse, 99 F.3d 1045, 1049 (11th Cir. 1996). In this case,
all parties agreed to submit the constructive discharge issue to
1 The government initially appealed the adverse jury verdict,
but subsequently dropped its appeal.
2 Mr. Reyes takes issue with the district court's legal
determination that he could not make out a constructive discharge
claim because he did not allege it as a separate and distinct claim
from his retaliation claim. The court need not address this
argument because its ruling on the district court's substantive
decision is dispositive of this appeal.
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the jury for an advisory verdict because the remedies for that
aspect of Mr. Reyes's case were equitable and, if appropriate,
could only be awarded by the district court.
Mr. Reyes contends that he was entitled to a binding
verdict on the issue of whether he was constructively discharged
as a part of his retaliation claim and now argues that the district
court erroneously labeled it as an "advisory" verdict. Mr. Reyes's
position below dooms his appeal on this issue. "The proposition is
well established that, 'absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal.'" In re
Net-Velazquez, 625 F.3d 34, 40 (1st Cir. 2010) (quoting Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)). "Though sometimes
severe in effect, this raise-or-waive rule 'is founded upon
important considerations of fairness, judicial economy, and
practical wisdom.'" Id. (quoting Nat'l Ass'n of Soc. Workers v.
Harwood, 69 F.3d 622, 627 (1st Cir. 1995)).
The record contains no evidence that Mr. Reyes raised an
objection below to the jury giving an advisory verdict on
constructive discharge. The proposed jury verdict form stated that
the question of constructive discharge would be an advisory
verdict, the proposed jury instructions stated that it would be an
advisory verdict, and the actual charge to the jury stated that it
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would be an advisory verdict. Mr. Reyes did not object to any of
these. In fact, Mr. Reyes's counsel told the judge during the
charge conference that the jury's determination on constructive
discharge would be, "advisory, the Court is not bound by it."
Because he did not split hairs then, as he does now, that the
advisory verdict on constructive discharge liability was binding
and the district court's discretion only went to the amount of
equitable relief to award, the court rejects that argument as
waived. On the record before us, we cannot identify an abuse of
discretion in the district court's empaneling of an advisory jury.
B. Sufficiency of the Evidence
Now that it is settled that the jury's verdict on
constructive discharge was advisory, we review the district
court's next steps upon receiving such a verdict. Because an
advisory jury's role "is, as the name would suggest, purely
advisory in nature[,]" "'[t]he responsibility for the decision-
rendering process remains with the trial judge' and 'it is in its
discretion whether to accept or reject, in whole or in part, the
verdict or findings of the advisory jury.'" Shields, 649 F.3d at
84 n.5 (alteration in original) (quoting 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2335, at 354–
56 (3d ed. 2008)); see Fed. R. Civ. P. 39(c)(1).
But "[i]n an action tried on the facts . . . with
an advisory jury, the court must find the facts specially and state
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its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). The
district court's decision either to accept or reject an advisory
verdict "must not be set aside unless clearly erroneous." Fed. R.
Civ. P. 52(a)(6); see Windsor Mount Joy Mut. Ins. Co. v.
Giragosian, 57 F.3d 50, 53 (1st Cir. 1995). A "finding is 'clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." Anderson
v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 394-95 (1948)).
The district court has the ultimate discretion to reject
an advisory verdict as long as it makes an independent review of
the law and facts presented at trial. That is precisely what the
district court did in this case.
In order to prove he was constructively discharged, an
employee "must prove that his employer imposed 'working conditions
so intolerable [] that a reasonable person would feel compelled to
forsake his job rather than to submit to looming indignities.'"
See Landrau–Romero v. Banco Popular De P.R., 212 F.3d 607, 613
(1st Cir. 2000) (alteration in original) (quoting Simas v. First
Citizens’ Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999)).
Accordingly, an employee must show some sort of adverse employment
action short of actual termination - such as one might also see in
a retaliation or discrimination case - to make out a claim of
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constructive discharge. "Typically, the employer must either (1)
take something of consequence from the employee, say, by
discharging or demoting [him], reducing [his] salary, or divesting
[him] of significant responsibilities, or (2) withhold from the
employee an accouterment of the employment relationship, say, by
failing to follow a customary practice of considering [him] for
promotion after a particular period of service." Blackie v.
Maine, 75 F.3d 716, 725–726 (1st Cir. 1996) (citations omitted).
"To prove constructive discharge, a plaintiff must offer evidence
of harassment at least as severe (if not more) than that required
for a hostile work environment claim." Hall v. FMR Corp., 667 F.
Supp. 2d 185, 202 (D. Mass. 2009); see id. ("Petty annoyances,
minor workplace indignities, and hurt feelings do not make out
a constructive discharge claim . . . .").
After hearing all the evidence admitted at trial, and
after inviting the parties to produce further evidence on this
issue, the district court rejected the jury's advisory verdict,
and instead found that Mr. Reyes had failed to prove his claim of
constructive discharge.3 The district court recounted Mr. Reyes's
The government raises the fact that Mr. Reyes only
3
challenges the district court's legal conclusion that he could not
recover on his equitable claim because he failed to bring a
separate constructive discharge claim and not its substantive
conclusion that he did not present enough evidence of such a claim.
The government urges us to affirm the district court's order
because Mr. Reyes waived this argument. Mr. Reyes does argue that
the district court should have accepted the advisory verdict on
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claims that beginning three years before he resigned, his
supervisors gave him greater oversight, micromanaged him, moved
his office to a less desirable floor (closer to his supervisor),
and reprimanded him for mocking a security guard on site. He
alleged retaliation in the form of an FBI investigation after he
sought permission to attend a cultural program in Russia hosted by
a Russian spy. Because of this ongoing investigation, Mr. Reyes
was restricted from working in areas that might require him to
interface with the FBI.
The district court, after reviewing all the evidence,
found that Mr. Reyes did not meet the standard for constructive
discharge because the actions giving rise to his resignation had
been ongoing for three years and the final act he asserts occurred
four months before he resigned. Along with the lack of timeliness
the district court also noted that Mr. Reyes always retained the
same title and salary throughout the three years of his alleged
harassment. The district court correctly found that no reasonable
person would have felt compelled to resign when faced with these
conditions. Gerald v. Univ. of P.R., 707 F.3d 7, 25 (1st Cir. 2013).
constructive discharge on the facts because the jury also found
that he proved his retaliation claim based on those same facts.
While he does not recount each fact on which the jury could have
reached its verdict, we will look at the district court's
independent review of the facts in its discretionary role to accept
or reject the advisory verdict.
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Further, the evidence showed that Mr. Reyes voluntarily left to
pursue a new career as an attorney, a move that he had been planning
for some time before he resigned.
The fact that the jury found in Mr. Reyes's favor on his
retaliation claim does not raise doubt as to the district court's
rejection of its advisory verdict on constructive discharge. The
district court's order explaining its findings is thorough, fact-
based, grounded in the facts and law, and therefore we cannot say
that its factual findings were clearly erroneous. See Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining
that, when reviewing for clear error, appellate courts "ought not
to upset findings of fact . . . unless, on the whole of the record,
[they] form a strong, unyielding belief that a mistake has been
made").
III. Conclusion
Because the district court's factual determination that
Mr. Reyes was not constructively discharged was not clearly
erroneous, the judgment of the district court is
Affirmed.
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