
USCA1 Opinion

	




                            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  & 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
