                  Not for Publication in West's Federal Reporter

             United States Court of Appeals
                         For the First Circuit

Nos. 17-1365, 17-1523

                                XIAOYAN TANG,

                          Plaintiff, Appellant,

                                       v.

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

                         Defendants, Appellees.


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

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


                                    Before

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


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

                                          
                                July 11, 2018
                                          



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

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

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

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

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

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

verdict for defendants said to be against the clear weight of

credible evidence.            We affirm.

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

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

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

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

appeal contains an exhaustive account of the record on summary

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

reference to the subsequent trial record when we reach the issue

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

facts     with     record       support     will      suffice     to      explain    the

circumstances       in   which     the     case    arose   and    returned    to    this

court.

               Tang emigrated from China and was hired to work as a

portfolio      manager    in     the     Commercial    Real      Estate    section    of

Citizens' Boston branch.               Her superiors there were dissatisfied

with     her     work    in     several     aspects     including      thoroughness,

timeliness and relations with clients.                     She chose to seek a


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

stymied by the unsatisfactory formal rating given to her job

performance until that rating was raised a notch to render her

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

rules.

             She was interviewed by the leader of the Technology

Banking     Group,        defendant    David      Nackley.        He    approved       the

transfer after interviewing Tang over lunch, where the discourse

ranged      into     personal     matters,        as    it   did       in      subsequent

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

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

proficiency        and,    according    to     Tang,    their     taste     in    bathing

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

order to resolve a potential conflict of interest, invited her

to visit Citizens' Connecticut headquarters and on at least one

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

the    meantime      Tang     received       some      compliments        on     her   job

performance, although the dissatisfaction persisted in ratings

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

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

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




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


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

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

           Tang's      response   was   to    bring       this   Title    VII   case

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

subsequently acquired counsel litigated before the jury as two

separate claims.        The first was a charge of sexual harassment

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

the   second,    one    of   retaliation      for     the    complaint     to   the

personnel department about Nackley.

           Quid pro quo sexual harassment claims require proof of

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

superior position to extract sexual favors from a subordinate

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

action   adversely       affecting      the   subordinate's         employment."

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

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

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

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

instruction was in these words:

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


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

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


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

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

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

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

a reasonable person would have understood Nackley's behavior as

amounting to sexually propositioning Tang, the jury could on the

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

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

objection on the point.

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

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

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

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

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

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

being     requested     to   correct,    clarify    or    supplement      the


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

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

withdrawal.

               It follows that when the jury retired to deliberate,

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

this court has made it clear that a subsequently dissatisfied

party has bypassed its opportunity to object under Federal Rule

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

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

Cir. 2015).

               Tang's second trial theory, retaliation, required her

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

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

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

protected      action     was    identified      as    her     complaint         to    Human

Resources that Nackley had made unlawful sexual advances, and

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

contest either element, leaving for decision only the question

whether she was fired because of making the complaint.                                 Tang

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

retaliation       claim     should     have    been        granted    owing      to     that

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

retaliatory      causation       linking      her   complaint        and    the       bank's

action in dismissing her.


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

she must show that the evidence points only to the conclusion

that she had proven the causal connection so clearly that it

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

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

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

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

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

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

failed to make that required showing must be given the deference

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

at 44.

               Tang does not come close to surmounting these hurdles,

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

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

favor     included      her    own    testimony       that     Nackley    was    clearly

indiscreet in conversations with her, to the point of vulgarity

on   at   least       one   occasion.            Although    Nackley     provided      some

mitigating explanation, there is no serious question that some

of     Nackley's      language       was    untoward.          Even    more     obviously

favorable       to    Tang's      case      on     causation    were     complimentary

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

contained in some performance reviews.




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

terminated       because       of       inadequate       performance            on     the    job,

however, there are two significant bodies of evidence.                                        The

first    shows    that       the     criticism      for      unacceptable            performance

began     in    the     Real       Estate      group        before        Nackley       had    any

involvement      with    her       employment.           Indeed,         her    unsatisfactory

rating    in    formal       evaluations         would       have    made       her    requested

transfer to Technology Banking impossible under the bank's rules

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

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

Technology Banking.

               The second line of evidence in favor of the verdict

shows    a     consistency         in    the     notations          of    her       deficiencies

throughout      her     time    at      Citizens,      as     attested         by    supervisory

employees      other     than       Nackley,      before       as    well       as    after   his

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

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

assignments,       to    be     deficient         in     analyzing         facts,       to    have

difficulty communicating and to become emotionally distraught

over     criticism      of     her       work.         Her     later       shortcomings         at

Technology       Banking        included,         but        were        not        limited    to,

mathematical inaccuracy, shallow analysis, untimely completion,

poor personal communications and emotional outbursts.                                   Although

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


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

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

the jury's capacity to evaluate the reliability and credibility

of the sources of the evidence put before it.

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

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

could find that she was fired for inadequate performance.                          See

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

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

Citizens.        No    one    could    seriously    conclude   that    it    was   not

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

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

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

abuse of discretion in denying the motion to vacate the verdict

and order a new trial.



Affirmed.




                                          - 9 -
