Tanca v. Nordberg ( 1996 )


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  • USCA1 Opinion








    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); _________ __________________


    -15-












    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).

    -16-