Tang v. Citizens Bank

• Court: Court of Appeals for the First Circuit
• Decided: July 11, 2018
• Docket: 17-1365U
• Status: Unpublished

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

Nos. 17-1365, 17-1523

XIAOYAN TANG,

Plaintiff, Appellant,

v.

CITIZENS BANK, a/k/a Citizens Bank, N.A., a/k/a Citizens, N.A., a/k/a Citizens, a/k/a RBS Citizens, N.A.; RBS CITIZENS, N.A.; THE ROYAL BANK OF SCOTLAND GROUP, a/k/a RBS; DAVID NACKLEY,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Circuit Judge, Souter, Associate Justice, and Kayatta, Circuit Judge.

Robert Herrick, with whom Nicholson Herrick LLP was on brief, for appellant. Mark W. Batten, with whom Samantha L. Regenbogen, Rebecca J. Sivitz, and Proskauer Rose LLP were on brief, for appellees.

July 11, 2018

 Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SOUTER, Associate Justice. This is an appeal by the

plaintiff, Xiaoyan Tang, from an adverse judgment in her action

for violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq., brought against Citizens Bank, N.A. and

others (collectively "Citizens"). She claims error in a jury

instruction and in the denial of a new trial to supplant a

verdict for defendants said to be against the clear weight of

credible evidence. We affirm.

This litigation, begun by Tang acting pro se, is now

in its fifth year and has been before us before, when we vacated

summary judgment for the defendants. See Tang v. Citizens Bank,

N.A., 821 F.3d 206 (1st Cir. 2016). Our opinion in the earlier

appeal contains an exhaustive account of the record on summary

judgment as viewed most favorably to Tang, and we will make

reference to the subsequent trial record when we reach the issue

of evidentiary weight. But at this point, a terse account of

facts with record support will suffice to explain the

circumstances in which the case arose and returned to this

court.

Tang emigrated from China and was hired to work as a

portfolio manager in the Commercial Real Estate section of

Citizens' Boston branch. Her superiors there were dissatisfied

with her work in several aspects including thoroughness,

timeliness and relations with clients. She chose to seek a

- 2 - transfer to the bank's Technology Banking group, a move that was

stymied by the unsatisfactory formal rating given to her job

performance until that rating was raised a notch to render her

passage to the new group possible under the bank's personnel

rules.

She was interviewed by the leader of the Technology

Banking Group, defendant David Nackley. He approved the

transfer after interviewing Tang over lunch, where the discourse

ranged into personal matters, as it did in subsequent

conversations. At various times Nackley spoke, for example, of

Thai au pairs working in his home, their acquisition of English

proficiency and, according to Tang, their taste in bathing

suits. He pressed Tang to disclose the name of her boyfriend in

order to resolve a potential conflict of interest, invited her

to visit Citizens' Connecticut headquarters and on at least one

occasion engaged in tasteless reference to the body ("ass").1 In

the meantime Tang received some compliments on her job

performance, although the dissatisfaction persisted in ratings

comparable to those in her earlier job, calling for improvement.

At one point she complained to the bank's Human Resources

department about the sexual tone of Nackley's remarks, though

1 The parties dispute the events in question, including the nature of this conversation, with Tang testifying to significantly harassing behavior by Nackley.

- 3 - the reviewer who investigated found the complaint unfounded.

When her performance failed to improve, she was let go.

Tang's response was to bring this Title VII case

(along with state causes of action no longer pending), which her

subsequently acquired counsel litigated before the jury as two

separate claims. The first was a charge of sexual harassment

(on both a quid pro quo and hostile work environment theory);

the second, one of retaliation for the complaint to the

personnel department about Nackley.

Quid pro quo sexual harassment claims require proof of

these elements: (1) "an employee or supervisor uses his or her

superior position to extract sexual favors from a subordinate

employee," and (2) "if denied those favors, retaliates by taking

action adversely affecting the subordinate's employment."

Valentín-Almeyda v. Municipality Of Aguadilla, 447 F.3d 85, 94

(1st Cir. 2006) (internal quotation marks omitted).

At the close of the evidence, however, the court's

charge did not mention quid pro quo. Instead, the oral jury

instruction was in these words:

She has to prove . . . an objective test, which means that a reasonable person in Ms. Tang's position doing the job she was doing with the job requirements, whatever they were, and the structure that Citizens Bank had with the supervisors and associates and the like that they had, . . . if subjected to this interaction on these occasions with Mr. Nackley, that person would have

- 4 - understood that he was soliciting a sexual relationship with her, that the objective person would have understood that he was propositioning for sexual relations. . . . I will tell you, if you believe her testimony in its entirety to include, as she testified to gestures and the like, if you believe that, you could find that was sexual harassment within the law.

Now, on that first theory, if she was subjected to sexual harassment, that constitutes a hostile work environment and she is entitled to damages. J.A. 1277.

At the close of the charge, Tang's counsel objected

that the court had failed to give any quid pro quo instruction

at all. The judge replied that he had covered the subject in a

way favorable to Tang by instructing that if the jury found that

a reasonable person would have understood Nackley's behavior as

amounting to sexually propositioning Tang, the jury could on the

basis of that finding alone return a verdict for Tang. Tang's

counsel responded, "Okay, fair enough," and made no further

objection on the point.

We think it is clear that counsel's response to the

judge's reply was a withdrawal of the objection. Even if a

withdrawal must be explicit, see United States v. Rodriguez, 311

F.3d 435, 437 (1st Cir. 2002), this one was. The point is to

make certain that while the jury is still there and open to

instruction the judge is made to understand that he is no longer

being requested to correct, clarify or supplement the

- 5 - instruction he had given. We fail to see how any judge could

have heard, "Okay, fair enough," as anything but such a

withdrawal.

It follows that when the jury retired to deliberate,

there was no objection on the record, a circumstance in which

this court has made it clear that a subsequently dissatisfied

party has bypassed its opportunity to object under Federal Rule

of Civil Procedure 51(c)(2)(B), and has thus waived the

objection. See Ray v. Ropes & Gray LLP, 799 F.3d 99, 112 (1st

Cir. 2015).

Tang's second trial theory, retaliation, required her

to show that she took protected action that was the cause of

subsequent adverse action against her. See Collazo v. Bristol-

Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). The

protected action was identified as her complaint to Human

Resources that Nackley had made unlawful sexual advances, and

the adverse action was the bank's firing her. The bank did not

contest either element, leaving for decision only the question

whether she was fired because of making the complaint. Tang

argues that her motion to vacate the defendant's verdict on the

retaliation claim should have been granted owing to that

verdict's being against the clear weight of the evidence of

retaliatory causation linking her complaint and the bank's

action in dismissing her.

- 6 - Tang's burden to prove that is a very heavy one, for

she must show that the evidence points only to the conclusion

that she had proven the causal connection so clearly that it

would be a miscarriage of justice to allow the verdict to stand.

See Goulet v. New Penn Motor Exp., Inc., 512 F.3d 34, 44 (1st

Cir. 2008). In weighing the evidence subject to this standard,

moreover, the facts must be viewed in the light most favorable

to Citizens, see Feliciano-Hill v. Principi, 439 F.3d 18, 21

(1st Cir. 2006), and the trial judge's conclusion that she

failed to make that required showing must be given the deference

accorded in review for abuse of discretion, see Goulet, 512 F.3d

at 44.

Tang does not come close to surmounting these hurdles,

although this is not to say that the trial record was entirely

one-sided against her. As already mentioned, evidence in her

favor included her own testimony that Nackley was clearly

indiscreet in conversations with her, to the point of vulgarity

on at least one occasion. Although Nackley provided some

mitigating explanation, there is no serious question that some

of Nackley's language was untoward. Even more obviously

favorable to Tang's case on causation were complimentary

evaluations of her efforts to improve her level of work, as

contained in some performance reviews.

- 7 - Standing against her claim that her employment was not

terminated because of inadequate performance on the job,

however, there are two significant bodies of evidence. The

first shows that the criticism for unacceptable performance

began in the Real Estate group before Nackley had any

involvement with her employment. Indeed, her unsatisfactory

rating in formal evaluations would have made her requested

transfer to Technology Banking impossible under the bank's rules

if the rating had not been replaced with a more favorable one,

for the apparent purpose of moving Real Estate's problem to

Technology Banking.

The second line of evidence in favor of the verdict

shows a consistency in the notations of her deficiencies

throughout her time at Citizens, as attested by supervisory

employees other than Nackley, before as well as after his

involvement. In the first stage of her employment (with the

Real Estate group) she was observed to be late in completing

assignments, to be deficient in analyzing facts, to have

difficulty communicating and to become emotionally distraught

over criticism of her work. Her later shortcomings at

Technology Banking included, but were not limited to,

mathematical inaccuracy, shallow analysis, untimely completion,

poor personal communications and emotional outbursts. Although

it is true that the later observations were by people who might

- 8 - have been influenced by Nackley, there is no evidence that any

of them skewed judgment to please him and no reason to question

the jury's capacity to evaluate the reliability and credibility

of the sources of the evidence put before it.

In Tang's first appeal, after our review of the

evidence in the summary judgment record, we noted that a jury

could find that she was fired for inadequate performance. See

Tang, 821 F. 3d at 222. Suffice it to say that the same is true

here, when the trial evidence must be regarded most favorably to

Citizens. No one could seriously conclude that it was not

possible for the jury to find that retaliation for Tang's

complaint about Nackley was not the but-for cause for letting

her go, and no one could find on the part of the trial judge an

abuse of discretion in denying the motion to vacate the verdict

and order a new trial.

Affirmed.

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