
USCA1 Opinion

	




          April 12, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2102                                   RODOLFO A. VARGAS,                                Plaintiff, Appellant,                                          v.                       LOUISE DURFEE, IN HER OFFICIAL CAPACITY,                           AS DIRECTOR OF THE RHODE ISLAND                        DEPARTMENT OF ENVIRONMENTAL MANAGEMENT,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Rodolfo A. Vargas on brief pro se.            _________________            Michael K. Marran on brief for appellee.            _________________                                 ____________________                                 ____________________                 Per  Curiam.   Appellant Rodolfo  A. Vargas  appeals the                 ___________            final judgment  entered by  the United States  District Court            for the District of Rhode Island in favor of appellee, Louise            Durfee,  Director   of  the   Rhode   Island  Department   of            Environmental Management [DEM].   Vargas alleged that,  while            employed at the DEM, he had been subject to racial harassment            and had been  terminated because of his national origin, both            in violation of Title VII of the Civil Rights Act of 1964, 42            U.S.C.   20002 et seq.  Judgment was entered for Durfee after                           __ ___            a  three day bench trial.  We  affirm.  Only one issue raised            by Vargas merits extended comment.                 Vargas  asserts that  the district  court erred  when it            denied his request for a  jury trial.  Vargas claims  that he            had a right to a jury trial because, in addition to equitable            relief,   his  complaint   sought  compensatory   relief  for            emotional distress, embarrassment and humiliation.                   Since the conduct alleged in this action occurred before            November  21,  1991, it  is not  affected  by the  1991 Civil            Rights Act which grants  a Title VII plaintiff the right to a            jury  trial  and  the  right to  seek  compensatory  damages.            Landgraf v. USI  Film Prods., 114 S.Ct.  1483, 1505-08 (1994)            ________    _______________            (jury trial  and compensatory damage provisions  do not apply            to conduct  occurring before November  21, 1991).   While the            Supreme Court has never  decided whether a petitioner seeking            back pay is entitled to a jury trial under Title VII for acts            occurring before November 21,  1991, see id. at 1490  n.4, in                                                 ___ __            this  circuit, "'it is well established that Title VII [prior            to  the  1991  amendment],  being  essentially  equitable  in            nature, does not carry with it the right to trial  by jury,'"            even  when  the plaintiff  seeks back  pay.   Ramos  v. Roche                                                          _____     _____            Products, Inc., 936 F.2d 43, 49-50 (1st Cir.),  cert. denied,            _____________                                   ____  ______            502 U.S. 941 (1991) (quoting Olin v. Prudential Ins. Co., 798                                         ____    __________________            F.2d  1, 7 (1st Cir. 1986)).   Furthermore, since the acts of            which   Vargas  complains   allegedly  occurred   before  the            enactment  of  the  Civil Rights  Act  of  1991,  he was  not            entitled  to seek  compensatory  relief.   See Landgraf,  114                                                       ___ ________            S.Ct. at 1490 ("Before  the enactment of the 1991  Act, Title            VII afforded only 'equitable'  remedies.");  Phetosomphone v.                                                         _____________            Allison  Reed  Group, Inc.,  984 F.2d  4,  7 (1st  Cir. 1993)            _________________________            (compensatory  damages  were not  available  under  Title VII            before passage of 1991 Civil Rights Act).                 Vargas' other  claims require only brief  responses.  We            find no error in the determination by the district court that            Vargas  failed  to   meet  his   burden  of   showing  by   a            preponderance   of   the   evidence   that    the   defendant            discriminated against him on the basis of his race.  White v.                                                                 _____            Vathally, 732  F.2d 1037, 1040 (1st Cir.),  cert. denied, 469            ________                                    ____  ______            U.S. 933 (1984).   The court considered the various  bases of            discrimination alleged  by Vargas.   In each case,  the court            found  that  Vargas  had   failed  to  establish  an  element                                         -3-            essential to his  claim.   We have reviewed  the record  with            care   and  find  no  clear  error  in  any  of  the  factual            determinations made by the district court.                   Even if Vargas were correct in his allegation that the            Rhode Island  Commission for Human Rights  violated state law            in its investigation of his claim, Vargas neither raised this            issue  before the  district  court, see  Johnston v.  Holiday                                                ___  ________     _______            Inns, Inc., 595  F.2d 890,  894 (1st Cir.  1979) (claims  not            _________            raised  below cannot be raised for the first time on appeal),            nor  has he  shown  on  appeal  that  any  violation  by  the            Commission for Human Rights  prejudiced his action in federal            court.                   Finally, since  no final judgment has  entered requiring            Vargas to pay attorneys' fees, this issue is not yet properly            before this court.                 Affirmed.                 ________                                         -4-
