USCA1 Opinion
November 25, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1628
JAMES TANCA,
Plaintiff - Appellant,
v.
NILS NORDBERG, COMMISSIONER,
AND THE MASSACHUSETTS DEPARTMENT
OF EMPLOYMENT AND TRAINING,
Defendants - Appellees.
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ERRATA SHEET
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Scott A. Lathrop, with whom Scott A. Lathrop, P.C. was on
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brief for appellant.
Benjamin Robbins, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General of Massachusetts, and Douglas
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Wilkins, Assistant Attorney General, were on brief for appellees.
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October 28, 1996
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TORRUELLA, Chief Judge. Appellant James Tanca
TORRUELLA, Chief Judge.
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("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
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Waterhouse v. Hopkins, 490 U.S. 228 (1989)), also apply to claims
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of retaliation. We hold that they do not and that the rule of
Price Waterhouse applies to retaliation claims.
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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,
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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
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Waterhouse governed the parties' dispute and that, under that
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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
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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
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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
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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,
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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
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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
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have extended the Price Waterhouse analysis to a series of other
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discrimination contexts, including retaliation claims. See
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Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039-41 (2d Cir.
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1993) (analyzing Title VII retaliation claim under Price
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Waterhouse); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d
__________ _________ ___________
Cir.) (noting that Price Waterhouse applies to mixed motive
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retaliation claims), cert. denied, 510 U.S. 865 (1993), overruled
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on other grounds, Miller v. CIGNA Corp., 47 F.3d 586, 596 n.8 (3d
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Cir. 1995); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470-71
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(10th Cir. 1992) (applying Price Waterhouse to Title VII
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retaliation claim). Indeed, at least one court has analyzed
retaliation claims in terms of Price Waterhouse even subsequent
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to the passage of the 1991 Act. See Veprinsky v. Fluor Daniel,
___ _________ _____________
Inc., 87 F.3d 881, 893 (7th Cir. 1996). However, neither the
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Supreme Court nor this Circuit has held that Price Waterhouse
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applies to retaliation cases.
However, Congress partially overruled Price Waterhouse
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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).
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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
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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
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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
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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
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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
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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-
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Ferrer, 82 F.3d 1131, 1136 (1st Cir. 1996). By doing so, we
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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
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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
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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
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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
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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.
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"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.
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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
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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
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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).
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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
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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.
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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
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in 1991 U.S.C.C.A.N. 694, 697.
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-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
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States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
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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,
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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
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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
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jeopardizes that fundamental principle.
H.R. Rep. 40(I), 102d Cong., 1st Sess. 47 (1991), reprinted in
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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
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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
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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
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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.
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Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (quoting Consumer
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Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
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(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
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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
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Dev., Inc., 54 F.3d 772 (table), No. 94-1465, 1995 WL 311577 (4th
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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.
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City of Brawley, 887 F. Supp. 1333, 1345 (S.D. Cal. 1995); Jones-
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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
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others we have examined leads us to question our conclusion. We
also believe that the Price Waterhouse rule does apply to mixed
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8 The parties cite one case from this circuit. In Selgas v.
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American Airlines, Inc., 858 F. Supp. 316 (D.P.R. 1994), the
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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
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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
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district court cited Robinson v. Southeastern Pa. Transp. Auth.,
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982 F.2d 892 (3d Cir. 1993), as support for that proposition.
Examination of Robinson shows that the court there cited the 1991
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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
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Robinson was tried prior to the 1991 Act's enactment, the court
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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
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that American had no alternative just cause to fire Selgas. Thus
neither Price Waterhouse nor the 1991 Act was implicated. Id. at
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1210-11. In outlining American's failed argument, the panel
cited Griffiths v. CIGNA Corp. for the proposition that section
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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
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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
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1991 Act should apply to Tanca's claim, neither of the cases
relied on for that proposition, nor Kerr-Selgas itself, supplies
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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.
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B. The Jury Instructions
B. The Jury Instructions
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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
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that it would have come to the same decision even if it had not
taken the unlawful motive into account. See Price Waterhouse,
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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.
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Since it did not, he concludes, DET has not met its burden under
Price Waterhouse. Tanca acknowledges that he did not object to
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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
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Serv. Bank for Sav., 932 F.2d 46, 51 (1st Cir. 1991) ("It is
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clearly established that arguments not raised at the district
court level will not be considered on appeal."); see also
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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.
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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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