

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                

No. 95-2005

                       STANLEY DIAZ-GANDIA,

                      Plaintiff, Appellant,

                                v.

               MARIA ROSA DAPENA-THOMPSON, ET AL.,

                      Defendants, Appellees.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Aida M. Delgado-Colon, U.S. Magistrate Judge]                                                                   

                                                                                                

                              Before

                     Torruella, Chief Judge,                                                     

                  Coffin, Senior Circuit Judge,                                                        

                     and Cyr, Circuit Judge.                                                     

                                                                                                

   Rafael A. Oliveras Lopez de Victoria for appellant.                                                 
   Lorraine J. Riefkohl, Assistant Solicitor General, with whom                                 
Carlos Lugo-Fiol, Solicitor General, and Jacqueline Novas-Debien,                                                                        
Deputy Solicitor General, were on brief for appellees.

                                                                                                

                          July 25, 1996
                                                                                                

          CYR, Circuit  Judge.  This appeal  challenges a summary                    CYR, Circuit  Judge.                                       

judgment dismissing  various claims  brought under  the Veteran's

Reemployment Rights  Act of 1968  ("VRRA") against  the Right  to

Work Administration  of the  Commonwealth of Puerto  Rico ("RWA")

for allegedly  denying  plaintiff-appellant Stanley  Xavier  Diaz

Gandia  ("Diaz") certain  incidents and advantages  of employment

solely by reason of  his participation in the United  States Army

Reserves.  We vacate  the district court judgment and  remand for

further proceedings.  

                                I                                          I

                           BACKGROUND1                                     BACKGROUND                                               

          Appellant Diaz,  who possesses a  Bachelor's Degree  in

Psychology  and a  Masters Degree  in Vocational  Counseling, was

hired  by defendant-appellee RWA  in August  1980, as  an Occupa-

tional  Counselor I in its  Bayamon Regional Office.   During the

next  few  years he  was promoted  and transferred  several times

before  attaining  the  classification  of   Personnel  Relations

Counselor,  equivalent  to  Occupational  Counselor  III, at  the

Central Office in San Juan.

          In September  1986 Diaz  enlisted in the  United States

Army and  entered on active  duty for approximately  nine months,

receiving military leave pay  from the RWA as required  by Puerto

Rico law.  P.R. Laws Ann.  tit. 25   2082.  Following his  honor-
                                                  

     1We  view all  competent evidence  and  attendant reasonable
inferences in the light most favorable to Diaz, the party resist-
ing summary judgment.  McCabe v. Life-Line Ambulance Serv., Inc.,                                                                          
77 F.3d 540, 544  (1st Cir.), petition for cert.  filed, 64 U.S.-                                                                 
L.W. 3808 (U.S. May 29, 1996) (No. 95-1929).  

                                2

able  discharge in May 1987,  he became an  active reservist with

the 448th Engineer  Battalion at Fort Buchanan,  which meant that

he remained on paid military leave from the  RWA until July 1987.

          When Diaz reported for duty with the RWA at its Central

Office  following  his  return from  active  duty  with  the Army

Reserves, he  discovered that a person  with inferior educational

qualifications  and  experience had  been  assigned  to fill  his

position.  Nevertheless,  as directed, Diaz reported  for work as

an Occupational Counselor  III in the  San Juan Regional  Office,

located in the same building, where for one month he was assigned

to a cubicle filled with boxes and office supplies but no desk or

chair.   He complained to  the Office of  Reservist and Veteran's

Affairs, and,  in  March 1988,  to the  Board of  Appeals of  the

Commonwealth Personnel  Administration System,  all to  no avail.

Approximately  two months  later, a  complaint to  the Employee's

Association resulted in his reassignment to the Central Office as

a Counselor in the Business Development Area.  

          In  addition,  Diaz  was  reprimanded  unjustly  by his

supervisors on two occasions upon his return from military leave.

First,  he  states that  the Director  of  the San  Juan Regional

Office, Aida Iris Castro Mundo, informed him that he wasted a lot

of  time on military  exercises.   Following their  meeting, Diaz

received  a  letter  from Castro  Mundo,  dated  April  15, 1988,

advising that he needed  to improve his job performance  in light

of  the fact  that  he had:    delayed assigning  cases  to other

                                3

counselors; refused to receive  cases after 3:30 p.m.; frequently

absented himself  from his workplace during  office hours; failed

to  complete  cases on  time; and  either  failed to  perform, or

performed poorly, various other official responsibilities.   Diaz

denies these accusations.  Second, at his  deposition Diaz testi-

fied that he had been reprimanded unfairly by another supervisor,

Jose  Figueroa,  for not  being at  his  work station  during the

middle of a day following his  return from military training.  He

explained his four-hour  absence on that occasion  as having been

devoted to making  sure the RWA paid  him for the time he  was on

military  leave.   Diaz further  states that  he received  no job

description until July 1994, despite a promise six  years earlier

that  he would receive one, and that his supervisors harassed him

by evaluating his work performance absent a job description.  

          No  other  negative  job evaluation  appears  in  Diaz'

personnel  record.  Nonetheless, and  though in June  1988 he had

been  designated a Counselor  of Special Projects  in the Central

Office as  he requested, Diaz testified  that Supervisor Fernando

Freses made  him uncomfortable with jokes about  the military and

its exercises, and  that he so  informed Freses.   When asked  on

deposition whether it  was a joke, Diaz replied:   "It was like a

joke, but I did not know what  that would lead to.  Because maybe

behind the words, well, there could be other intentions . . . ." 

          Diaz  testified  that  his  desk  and  belongings  were

relocated four times  before or  during military  leaves in  1991

alone, though there was  no change in work duties.   For example,

                                4

in  July 1991, without warning and after submitting a request for

military leave, his desk  was set apart from co-workers  until he

complained to  his supervisor.   When he  returned from  military

leave  the following month, however, his desk had been removed to

the Training  Division on the same  floor.  Diaz was  told by the

supervisor that this was  a temporary measure, necessitated by  a

remodeling project.   But when  he returned from  leave again  in

September 1991, after the remodeling had been completed, his desk

had  been relocated  again, this  time to  the Payment  Division.

Once  again he  was told  by  his supervisor  that  the move  was

temporary.  Upon his return from military leave in November 1991,

his desk was located in the Learning Program Division, ostensibly

as an emergency measure related to space problems.  

          The  remodeling  plans  for  the  Communal  Development

Division included  no work  station for  Diaz,  even though  work

stations were provided for  two co-workers who had  arrived after

Diaz.2  As a  consequence, Diaz remained in the  Learning Program

Division until the end of May  1992.  Finally, unlike all his co-

workers in  the Learning  Program  Division and  in the  Communal

Development Division, Diaz was not  provided a telephone.  Super-

visor Jose Figueroa explained to Diaz in March 1992:  "Oh, you do

not have  a  telephone  because the  day  the  telephone  company

operator came you were in [sic] one of these [sic] damn  military

leaves of yours."   In  late March 1992,  Diaz complained to  his

                                                  

     2In October 1989, the Special Projects Area became the
Communal Development Division.  

                                5

supervisor  that all  his  work  duties  had been  reassigned  to

others.  

          Around the  same time, he complained  of migraine head-

aches and the State  Insurance Fund ordered home rest  from April

10 to  May 18, 1992.  Upon returning from medical leave, Diaz was

given  no  work  assignment for  approximately  two  weeks.   The

following month  he was  transferred to the  Participant Services

Division in the Central Office, located on the tenth floor of the

same  building.   After  protesting the  transfer and  requesting

administrative review, he reported as directed to the Participant

Services Division upon returning  from another military leave and

was informed that there was no work for him to do.  Approximately

one week later,  having been  given no work  assignment, he  com-

plained to  the  State Insurance  Fund that  he was  experiencing

insomnia, headaches and neck  and back pain.  A  private psychia-

trist prescribed two weeks' rest.  Subsequently, another psychia-

trist evaluated Diaz, concluding  that he suffered from dysthymia

with anxiety somatization.3  

          On  August 6,  1992, having been  assigned no  work for

five consecutive weeks, during a ten-week period, Diaz received a

copy  of a  letter, dated  July  24, 1992,  from  the manager  of

Participant Services to the director of Occupational Orientation,

                                                  

     3Dysthymia:  "any  despondent mood  or depressive  tendency,
often  associated  with  hypochondriasis."     Blakiston's  Gould                                                                           
Medical  Dictionary  420 (4th  ed.  1956).   Somatization:   "the                             
neurotic  displacement  of  emotional conflicts  onto  the  body,
resulting in various  physical symptoms  or complaints .  . .  ."
Id. at 1266.             

                                6

advising  that Diaz  should  be  given  work as  an  Occupational

Counselor, at an unspecified grade level.  Only then was he given

work  duties.  In  September 1992, he was  instructed to "read" a

200-page  statute in three days, but found the task too demanding

as he had  been prescribed  Prozac, then "something  else with  a

lithium  base," and finally Xanac, by his psychiatrist.  At Diaz'

request, the director of  Occupational Orientation later  reduced

the assignment to twenty-five pages per day.  Diaz testified that

other incidents  also made him "feel  very bad because .  . . all

this mess, of the Army Reserve and the drills, this was all going

to continue.   And this was going to be a  nightmare until I left

the Army or  until I left this agency, this  was going to contin-

ue."  

          On July  16, 1993, Diaz filed  suit against defendants-

appellees Maria Rosa Dapena-Thompson  and her successor, in their

respective official capacities as the RWA director, alleging that

he had been harassed,  denigrated, and persecuted after returning

from military  leave for  required training  and drills  with his

reserve  unit.   He  demanded  damages for  mental  and emotional

suffering,  as well  as reclassification  in accordance  with RWA

rules and regulations.  Shortly after filing the  complaint, Diaz

was  promoted to Occupational Counselor  IV, the highest grade he

has ever attained.  

          In due course, defendants moved for summary judgment on

the ground, inter  alia, that  there was  no trialworthy  dispute                                 

concerning whether  defendants had discriminated  against Diaz in

                                7

violation of the VRRA.  Diaz seasonably interposed opposition  to

the motion for summary judgment.   Thereafter, the parties stipu-

lated to certain   uncontested facts and consented to  proceed to

final judgment before  a magistrate judge  in accordance with  28

U.S.C. 636(c)(1) and (3) and Fed. R. Civ. P. 73.  Ultimately, the

magistrate judge entered summary judgment for both defendants. 

                                II                                          II

                           DISCUSSION4                                     DISCUSSION                                               

          The VRRA is  to be liberally construed.   Alabama Power                                                                           

Co. v. Davis,  431 U.S. 581, 584  (1977); Bunnell v.  New England                                                                           

Teamsters  &amp; Trucking Indus. Pension Fund, 655 F.2d 451, 453 (1st                                                   

Cir. 1981), cert. denied, 455 U.S. 908 (1982).  VRRA   2021(b)(3)                                  

provides  in pertinent  part that  "[a]ny person  [employed  by a

State or political subdivision, or by a  private employer,] shall

not be denied . . .  retention in employment, or any promotion or

other incident or advantage of employment  because of any obliga-                                                   

tion as a member of a Reserve component of the Armed Forces."  38

U.S.C.    2021(b)(3) (emphasis added).5   Its legislative history
                                                  

     4We  review the summary judgment ruling de novo.  McCabe, 77                                                                       
F.3d at 544. 

     5Although Diaz cites to VRRA   2021(b)(1), which  relates to
veteran's reemployment rights, the magistrate judge appropriately                                
analyzed  the claim  under    2021(b)(3), which  pertains  to the
rights  of  reservists.   In turn,     2022 establishes  a remedy
against covered employers who fail to comply with   2021(b)(3): 

          If any employer, who is a private employer or                          
          a  State  or  political subdivision  thereof,                                                       
          fails  or refuses to  comply with  the provi-                                                     
          sions  of section . . . [2021](b)(3) . . . of                                                        
          this title,  the district  court . .  . shall                                                                 
          have the power . . . to require such employer                                                                 

                                8

likewise reflects that VRRA   2021(b)(3) "was enacted for the . .

. limited  purpose of  protecting the  employee-reservist against

discriminations like discharge and demotion,  motivated solely by                                                                        

reserve  status . . .  [and] the temptation  of employers to deny

them the  same treatment afforded their  co-workers without mili-

tary obligations."   Monroe v.  Standard Oil Co.,  452 U.S.  549,                                                          

559-600 (1981) (emphasis added).  

A.   "Discriminations Like Discharge and Demotion"          A.   "Discriminations Like Discharge and Demotion                                                           

          VRRA    2021(b)(3) is designed to  deter discriminatory

employment actions "like discharge and demotion," id. at 559; see                                                                           

also Carlson v.  New Hampshire  Dep't of Safety,  609 F.2d  1024,                                                         

1027  (1st Cir. 1979), cert.  denied, 446 U.S.  913 (1980), based                                              

solely  on  the plaintiff-employee's  reservist responsibilities.

Monroe, 452 U.S.  at 559.6   Since Diaz  was neither  discharged,                

                                                  

          to comply with such provisions and to compen-                                                                 
          sate  such person  for any  loss of  wages or                                                                 
          benefits  suffered by reason  of such employ-                            
          er's  unlawful action.  Any such compensation
          shall  be in  addition  to and  shall not  be
          deemed to  diminish any of the  benefits pro-
          vided for in such provisions. . . .  No State
          statute  of limitations  shall  apply to  any
          proceedings under this chapter.

38 U.S.C.   2022 (emphasis added).  

     6On October 13, 1994,  the Uniformed Services Employment and
Reemployment Rights  Act ("USERRA"), 38  U.S.C.    4301  et seq.,                                                                          
replaced the  VRRA.  Gummo v. Village of Depew, N.Y., 75 F.3d 98,                                                              
105 (2d Cir.), cert. denied, 64 U.S.L.W. 3759, 3762 (U.S. May 13,                                     
1996)  (No. 95-1465).    Although Diaz  contends  on appeal  that
USERRA   4311 retroactively  applies to his discrimination claim,
he failed to raise this contention in the district court through-
out  the  entire  8-month period  following  USERRA's  enactment.
Consequently, we deem it waived.  See Credit Francais Int'l, S.A.                                                                           
v. Bio-Vita, Ltd., 78 F.3d 698, 709 (1st Cir. 1996).                           

                                9

see Nereida-Gonzalez  v. Tirado-Delgado,  990 F.2d 701,  704 (1st                                                 

Cir. 1993), nor  formally demoted, we first  determine whether he

was subjected  to a discriminatory employment  action "like demo-

tion."   See Monroe, 452  U.S. at 559-600.   Secondly, we inquire                             

whether any such discriminatory employment action was  "motivated

solely by [his] reserve status."  Id. at 559.                                               

          VRRA   2021(b)(3) was enacted "to protect potential and

existing  reservists  from  policies that  deter  employees  from

joining the reserves."   Boyle v.  Burke, 925 F.2d 497,  502 (1st                                                  

Cir. 1991); see also Gummo v. Village of Depew, N.Y., 75 F.3d 98,                                                              

104 (2d Cir.), cert. denied, 64 U.S.L.W. 3759, 3762 (U.S. May 13,                                     

1996)  (No.  95-1465).   Although  appellees  contend that  their

employment  actions  denied Diaz  no  "incident  or advantage  of

employment"  within the meaning  of VRRA    2021(b)(3),  we think

there can  be no question that  discriminatory employment actions

"like demotion," including constructive demotion, based solely on

reservist participation, constitute the very  sort of discrimina-

tory conduct the Congress sought to deter under   2021(b)(3).  

          We  have held that a state trooper was denied an "inci-

dent  or advantage  of  employment" by  reason  of his  reservist

training  and responsibilities  when he  was transferred  from an

eight-hour  weekday shift  to  a nine-hour  shift which  included

weekend duty.   Carlson, 609 F.2d  at 1027.  There  we noted that                                 

"the [defendant-employer] would be  free to transfer plaintiff at

any time, including  while his reserve  duties were in  progress,

for reasons unrelated to his reserve obligations[,] but . . . not

                                10

. .  . to  [deny] him  . .  . a  previously  enjoyed incident  or

advantage of employment"  based on his reserve  obligations.  Id.                                                                           

More  to the  present point,  Carlson made  clear that  the shift                                               

reassignment was  a  constructive demotion  because  it  required

weekend work, as well as night work, and therefore constituted an

employment action which might  deter a trooper from participating

in  the  military reserves.   Id.   The  challenged reassignment,                                          

based  solely  on reservist  obligations,  thus  violated VRRA   

2021(b)(3).   Accordingly, the Carlson panel  ordered the trooper                                                

"restored to his former work assignment."  See id. (citing VRRA                                                              

2022).  

          As an "outright demotion[] involve[s] reductions in pay

and official rank," Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d                                                                 

1209, 1218 n.8 (1st  Cir. 1989) (en banc), a  constructive reduc-

tion in pay or rank ("constructive demotion") would constitute an

employment  action sufficiently  "like demotion"  to satisfy  the

severity standard imposed by Monroe, 452 U.S. at 559.   See Clark                                                                           

v. Township of Falls, 890  F.2d 611, 618 (3d Cir.  1989) ("Actual                              

reduction in rank is effected by a change in job title.  When the

. . . job title has not been altered . . , we must look to  other

traditional indicia  of change in  rank to determine  whether the

employee's rank  constructively has  been reduced.").   Suggested

indicia for  determining  whether challenged  employment  actions

constitute  a "constructive  demotion"  include duty  assignments

normally  given to lower  level employees, substantial reductions

in work responsibilities, "termination of privileges of rank, and

                                11

whether the changes  or restrictions  are temporary."   Id.   For                                                                    

example, the trooper in Carlson was not formally reduced in rank,                                         

but  nonetheless underwent a constructive reduction  in rank as a

result  of his assignment from  an eight-hour weekday  shift to a

nine-hour  shift which included  weekend duty.   See Carlson, 609                                                                      

F.2d  at 1027.  Thus, reassignment to a substantially less favor-

able  work  schedule deprived  Carlson  of a  privilege  of rank,

resulting  in a  constructive demotion  because of  his reservist

duties, in violation of VRRA    2021(b)(3).

          The  summary  judgment record  discloses that  Diaz had

been subjected  to adverse  changes in  work conditions  as well,

upon return from  active duty with the Army  Reserves.  First, he

lost  substantial privileges of rank,  in that he  was assigned a

work  station, with no  desk or chair,  in a  cubicle filled with

boxes  and office  supplies.   On four  occasions in  1991 alone,

either before or during military leaves,  his desk and belongings

were relocated apart  from all  his co-workers.   In early  1992,

Diaz, alone among his co-workers,  was provided with no telephone

whatsoever.  Second, Diaz'  job responsibilities had been reduced

to the  point that by  early 1992  all his work  duties had  been                                                

assigned to others.  Thus, for five consecutive weeks during this

period, Diaz  was given no work  duties at all.   Cf.  Agosto-de-                                                                           

Feliciano, 889  F.2d  at 1219  (holding  that reduction  in  work                   

duties  must extend  beyond a  "week or  two" before  it  will be

considered sufficiently  severe to be actionable  in First Amend-

ment "political  discrimination"  context); compare  Township  of                                                                           

                                12

Falls,  890  F.2d at  618 (holding  that  a partial  reduction in               

duties during six-week period constituted  temporary reassignment

insufficient  to  support  procedural  due  process  claim  under

Fourteenth Amendment).  Third, Diaz was "left in limbo" as to his

actual rank, since he was without a job description for six years

and given  no work responsibilities  for weeks at  a time.   Once

work assignments resumed, moreover,  Diaz was not informed  as to

their grade level.  

          Viewing  the  competent  evidence, and  all  reasonable

inferences  therefrom, in  the light most  favorable to  Diaz, we

conclude that he  generated a trialworthy issue  of material fact

as  to whether the cumulative effect  of these adverse employment

actions  was enough "like demotion" to be actionable under VRRA  

2021(b)(3).  A reasonable trier of fact could  find that Diaz was

subjected to adverse work-condition  changes, extending over more

than five years and amounting to constructive reductions in rank,

that  could deter  continued  participation in  the military  re-

serves.  Thus, Diaz made  out a prima facie case that he had been

denied  "incident[s] or  advantage[s]  of employment"  within the

meaning of VRRA   2021(b)(3).  

B.   "Motivated Solely By Reserve Status"          B.   "Motivated Solely By Reserve Status                                                  

          The  VRRA affords  recourse for  certain discriminatory

employment  actions  against  employee-reservists  taken  "solely

because of  their military  obligations."   Monroe,  452 U.S.  at                                                            

                                13

565.7   As  there  is scant  evidence  that the  alleged  adverse

employment actions against Diaz  were other than reservist-status

based, we conclude that there is sufficient evidence,  if credit-

ed,  to  meet the  second criterion  under  VRRA    2021(b)(3) as

well.8 

          Diaz  proffered  considerable  circumstantial  evidence                                                                 

that  the  challenged actions  were  motivated  by his  reservist

obligations.    For example,  following  his  return from  active

reserve duty in  1987, he was  assigned to a cubicle  filled with

boxes  and office  supplies, with  no desk  or chair.   Again, in

1991,  upon returning  from reserve  duty, he  underwent repeated

relocations to  work stations apart  from all co-workers.   After

returning  from reserve training in 1992, he was assigned no work

responsibilities for five consecutive weeks.   See also supra  at                                                                       

                                                  

     7Even though the Monroe Court (5-4) was sharply divided, the                                      
Justices were as one on the central question presented here.  All
agreed,  at a minimum,  that VRRA    2021(b)(3) prohibits certain
discriminatory  employment  actions motivated  by  the plaintiff-                        
employee's  reservist status.   Their disagreement concerned only
whether reservists  are  entitled to  preferential  work-schedule                                                            
accommodations by reason of their military training responsibili-
ties.  Diaz, on the other hand, alleges discriminatory employment                                                                
actions based on his responsibilities as a reservist.

     8Upon remand, the district  court must determine whether any
uncontroverted  material facts are to be deemed established.  See                                                                           
Fed. R. Civ. P. 56(d).  We note that the  exact burden allocation
regimen appropriate  for application to  a VRRA claim  at summary
judgment  has not been addressed  by the parties  or the district
court.   Furthermore, though Diaz now contends that USERRA   4311
applies  retroactively  to  the present  case,  he  made  no such
contention  below, nor does he  now contend that  the USERRA pre-
scribes  the burden  allocation  regimen for  these VRRA  claims.
Consequently, we decline to volunteer our views on  these matters
in the present vacuum.  See Credit Francais Int'l., S.A., 78 F.3d                                                                  
at 709. 

                                14

pp. 12-13. 

          Diaz  also proffered  direct evidence  of a  reservist-                                                

based discriminatory animus on the part of the RWA, including his

deposition  testimony that  Regional  Director  Castro-Mundo,  in

demanding improved performance, criticized Diaz for wasting a lot

of time  on official matters, including military exercises.  Diaz

further  states that  Supervisor Figueroa  informed him  that the

reason  Diaz had no  telephone was that  he was on  "one of those

damn military  leaves" when the telephone  company representative

came.  

                                15

          Viewed in  context, this  evidence cannot  be dismissed

simply as "stray remarks in  the workplace . . . ,  statements by

nondecisionmakers, or  statements by decisionmakers  unrelated to

the decisional process itself,"  Price Waterhouse v. Hopkins, 490                                                                      

U.S.  228, 277  (1989)  (O'Connor, J.,  concurring), particularly

since these  statements are  attributed to supervisors  or office

directors with apparent authority to affect Diaz' work conditions

in a  significant  manner through  work-station,  work-condition,

equipment, and  job assignments,  as well as  performance evalua-

tions.    The statement  attributed  to  Supervisor Figueroa,  in

particular, could support a fair inference that the discriminato-

ry work conditions,  viz., the  total denial of  a telephone  and                                  

work assignments, as well  as repeated work-station changes, were

directly linked to Diaz' reservist status and responsibilities.  

          Furthermore, for their part  defendants offer no expla-                                                                    

nation  for not providing Diaz with either  a desk or a chair for

an entire month following his return from military leave in 1987.

As  for the disparaging remarks made to Diaz by Supervisor Freses

in 1988, relating to the military and to Diaz' military exercises

in  particular, the  defendants merely  point out  that Diaz  has

acknowledged that these remarks took the outward form of "jokes."                                                               

Thus, defendants tender  no compelling basis  upon which to  con-

clude that a factfinder could not reasonably  infer a discrimina-

tory reservist-based motivation  from the direct and  circumstan-

tial evidence proffered by Diaz.  

                                16

          Similarly, defendants offer no explanation for refusing                    

to  assign Diaz work responsibilities  for a total  of five weeks

during a ten-week period following his return from military leave

in 1992, notwithstanding the fact that the manager of the Partic-

ipant  Services Division, to which Diaz was assigned at the time,

advised the Director of the Occupational Orientation Division, in

writing, that "non-use of [Diaz] is  not productive nor advisable

for the  best welfare of the  Occupational Orientation Division."

To  this point,  therefore, defendants  have met  Diaz' competent

direct  and  circumstantial evidence  with  neither  evidence nor

explanation which would compel a reasonable trier of fact to find

that the challenged employment  actions were not motivated solely

by  Diaz'  reservist obligations.    Thus,  summary judgment  was

precluded on the present record. 

C.   Eleventh Amendment Immunity           C.   Eleventh Amendment Immunity                                           

          The Eleventh  Amendment immunity  defense to  the claim

for damages  fails as well.   As  this court held  in Reopell  v.                                                                       

Massachusetts, 936 F.2d 12, 16 (1st Cir.), cert. denied, 502 U.S.                                                                 

1004  (1991), Congress,  acting pursuant to  its War  Powers, see                                                                           

U.S. Const.  art. I,    8, "removed the Eleventh Amendment bar to

damages  actions brought  under [the  VRRA] .  . .  ."   Since no

subsequent development has undermined Reopell, we remain bound by                                                       

it.   Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.),                                             

cert.  denied, 116  S. Ct.  51 (1995).9   Accordingly, defendants                       
                                                  

     9The recent decision in Seminole Tribe of Florida  v. Flori-                                                                           
da, 116 S. Ct. 1114 (1996), which overrules Pennsylvania v. Union                                                                           
Gas Co.,  491 U.S.  1 (1989), and  holds that Congress  lacks the                 

                                17

are  not entitled  to Eleventh Amendment  immunity from  suit for

compensatory damages under VRRA   2021(b)(3).

                               III                                         III

                            CONCLUSION                                      CONCLUSION                                                

          We therefore hold that an employee-reservist may assert

a claim under VRRA    2021(b)(3) based on constructive  demotion,

i.e., a discriminatory employment action, "like demotion," in the

nature of a  constructive reduction in rank and  motivated solely

by  participation  in the  reserves.    Furthermore, viewing  the

competent evidence most favorably to Diaz, a reasonable trier  of

fact  could find  that Diaz  was constructively  reduced in  rank

based  solely on  his  reservist participation  and  obligations.

Finally,  we conclude that the  Eleventh Amendment does not immu-

nize defendants from suit under VRRA    2021(b)(3).  Accordingly,

the district court judgment  is vacated and the case  is remanded

for further proceedings consistent with this opinion. 

          So ordered.  Costs to appellant.                    So ordered.  Costs to appellant.                                                   

                                                  

power  to abrogate  the Eleventh  Amendment under   the  Commerce
Clause, does not control the War Powers analysis.   See CEH, Inc.                                                                           
v.  F/V Seafarer,  70 F.3d 694,  702 (1st  Cir. 1995)  ("[W]e are                          
hesitant  to ascribe to the Court a holding that goes well beyond
any issue discussed there.").  

                                18
