          United States Court of Appeals
                     For the First Circuit


No. 14-2121

                        JOSEPH ANGIUONI,

                      Plaintiff, Appellant,

                               v.

                 TOWN OF BILLERICA; DANIEL ROSA,
  individually and in his official capacity as Chief of Police,

                     Defendants, Appellees.


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

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     John V. Siskopoulos, with whom Alexandra C. Siskopoulos and
Siskopoulos Law Firm, LLP were on brief, for appellant.
     Jeremy Silverfine, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellees.


                       September 23, 2016
           LIPEZ,   Circuit   Judge.     Joseph   Angiuoni,   a   military

veteran, brought a claim against the Town of Billerica and Daniel

Rosa, Chief of the Billerica Police Department, under the Uniform

Services Employment and Reemployment Rights Act ("USERRA"), see 38

U.S.C. § 4301-4335, claiming that his status as a veteran was a

motivating factor for defendants' termination of his employment.

A jury found in favor of defendants.         In this appeal, Angiuoni

argues that the district court made a series of errors in its

evidentiary rulings that warrant a new trial.        We affirm.

                                   I.

           We recite the facts as the jury could have found them.

See Sinai v. New Eng. Tel. & Tel. Co., 3 F.3d 471, 472 (1st Cir.

1993).   Angiuoni, an Army veteran, began working as a probationary

patrol officer for the Billerica Police Department ("Department")

after graduating in 2009 from the Massachusetts Bay Transportation

Authority Police Academy.      The Department's probationary period

lasts eight weeks and is designed to determine if a new officer

will be a good fit for the Billerica force.

           The Department has a Field Training Program to help

police officer trainees build on their instruction at the academy.

One component of the program is on-the-job feedback from Field

Training Officers ("FTOs"), who accompany individual trainees in

cruisers to evaluate and comment on their performance.




                                 - 2 -
             Angiuoni's   FTOs    observed   and   reported   on   numerous

incidents and issues with his performance.         For example, early in

his field training, Angiuoni backed a cruiser into a wall while

transporting two prisoners to court.         Then, on the return trip, he

shouted at a crew of prisoners cleaning up the roadside, which his

FTO, Officer McKenna, told him was inappropriate behavior.

             On another occasion, Angiuoni, accompanied by FTO Moran,

made a traffic stop of a car containing two females and two males

who appeared to be in their late fifties or early sixties.             When

Angiuoni told Moran that he planned to search the car for drugs

because he thought he had smelled something, Moran said he did not

smell anything and told Angiuoni not to search the car.            Angiuoni

replied that he was taught at the police academy to search every

car he stopped because of the potential for drugs. Moran explained

that that was not correct, and, in that instance, finding drugs

was unlikely given the ages of the individuals.

             Similarly, Angiuoni argued with Officer Moran when they

spotted a white van parked at a shopping mall with two people

apparently "making out" in the back.         Angiuoni ran toward the van,

disregarding Moran's instructions, twice, not to do so.                When

approached and questioned, the female in the vehicle explained

that   the   male   was   her   boyfriend.     Despite   Moran's   contrary

guidance, Moran insisted that he was taught at the police academy




                                    - 3 -
to rush a vehicle in such circumstances because a rape could have

been happening.

           Two other episodes that occurred while Officer Moran

accompanied   Angiuoni   similarly     involved   Angiuoni's   ignoring

instructions or debating with Moran about what should be done.

During one exchange, after Moran explained how Angiuoni should

have handled a house alarm call differently, Angiuoni complained

that another officer who started training around the same time as

he did was being treated more favorably.          Moran explained that

that officer had prior law enforcement experience in Massachusetts

and, hence, was already familiar with the responsibilities of a

police officer.   Angiuoni then said he had been in Iraq, and he

knew what things were like and that people were out to get him.

           In May 2009, Angiuoni took handgun and rifle tests.       He

passed the handgun test, but did not qualify on the rifle test.

He was the only officer who failed the rifle test that day and the

only officer in that training cycle who did not qualify.

           When Angiuoni's probationary period ended, Lieutenant

Opland, who oversees operation of the Field Training Program, did

not clear Angiuoni for patrol.       The FTOs who had worked with him

reported   concerns   about   Angiuoni's    progress,   demeanor,   and

professionalism, and stated that he did not listen to feedback,

had trouble taking instructions, and became argumentative with




                                - 4 -
them.      They also noted that he had difficulty with simple tasks,

such as writing reports and radio communications.

             Lieutenant Opland met with Angiuoni to review the Report

of Deficiencies and to discuss the extension of his probation and

training.      The Report noted, among other things, that Angiuoni

needed to work on proper radio operation and communication, and on

preparing police reports; that he needed to become familiar with

the town and its streets; that he did not qualify ("DNQ") on the

rifle test and needed more training; and that he was involved in

an accident with the cruiser.           Despite the negative feedback,

Lieutenant Opland and Chief Rosa decided to extend Angiuoni's

probationary period and provide him with further field training.

             At about the same time, in June 2009, a rumor circulated

at   the    Department   regarding    layoffs   due   to   budgetary   cuts.

Angiuoni told Officer Moran that the FTOs were out to get him

because of the possible layoffs.         According to Angiuoni, Officer

Moran said during this conversation that layoffs would be more

dangerous to him, i.e., Moran, than to Angiuoni because Moran was

not a veteran.     According to defendants, however, Moran explained

to Angiuoni that, if any FTOs were to be laid off, it would be him

(Moran) since he was the most junior FTO, that Chief Rosa would

have to lay off about one-sixth of the Department to even reach

Moran, and that any layoff was unlikely.         No layoffs occurred.




                                     - 5 -
           During Angiuoni's extended probationary period, between

June and November 2009, the problems identified in his Report of

Deficiencies persisted.    On numerous occasions, Angiuoni either

confused the address to which he was dispatched or could not find

the location, despite having the correct address.         In one instance

involving a high-stress police situation, Angiuoni was twenty

minutes late to the scene because he had gotten lost.          He blamed

a fellow officer for his delayed arrival, telling his superior

that his colleague had given him the wrong directions even though

the colleague had in fact helped him find the location.

           Other performance issues also arose.       For example, his

FTO observed Angiuoni set up a radar device at a sharp curve in a

road, despite having been told that that spot was not a good

location   for   radar.   On   another   occasion,   an   administrative

complaint was filed based on Angiuoni's conduct during a traffic

stop of a young female driver. The complaint alleged that Angiuoni

had sworn at the driver and made derogatory comments about her

relative who worked at the local sheriff's office.

           In November 2009, after meeting with Angiuoni to discuss

the continuing issues with his performance, Chief Rosa placed

Angiuoni on administrative leave pending a hearing with the Town

Manager.   A few days later, Rosa met again with Angiuoni at the

request of the police union president to go over the problems with

his performance.     During that conversation, Angiuoni complained


                                 - 6 -
about his FTOs and stated, in particular, that Officer Moran had

said that veterans should not get special treatment.

             In a written report presented to the Town Manager, Chief

Rosa outlined areas of concern regarding Angiuoni's performance,

including:     lack    of   self-initiative       on     patrol;    poor    radio

communications (procedure and etiquette); lack of knowledge of

town streets, which interfered with his ability to respond to calls

in a timely manner; failure to follow protocol regarding officer

safety; lack of situational awareness; poor quality and accuracy

of police and accident reports; citizen complaint regarding his

handling of a traffic stop; and a DNQ on the rifle test.                        The

report also noted that Angiuoni lacked the "ability to take

responsibility    for    his   own    actions    or    take   any   constructive

criticism during his training phase," and that he did not make

adequate progress during the extended probationary period despite

being informed of his issues in June.                  Following Chief Rosa's

presentation, the Town Manager terminated Angiuoni's employment.

             Angiuoni subsequently filed this action against the Town

of Billerica and Chief Rosa, claiming, inter alia, that defendants

terminated his employment "due to [his] military service," in

violation of the USERRA.       In a pretrial motion, Angiuoni asked the

court   to   exclude    evidence     of   the   number   of   veterans     in   the

Department for lack of probative value, stating, "[t]here is no

allegation that . . . [defendants] harbored discriminatory animus


                                      - 7 -
against veterans in general."       In response, defendants argued that

such evidence was relevant because Angiuoni had alleged in his

amended complaint that defendants "expressed a strong antagonism

towards veterans," and that there was a "general bias against

veterans" in the Department.       The district court denied the motion

without prejudice, thereby permitting Angiuoni to renew the motion

during the trial.

            The case proceeded to trial in September 2014.           The jury

returned a verdict in favor of defendants, finding that Angiuoni

had   not   shown   that   his   veteran    status   was   a   substantial    or

motivating factor in defendants' decision to terminate him.                  The

district court entered judgment, and this appeal followed.

            On appeal, Angiuoni identifies three evidentiary errors

that he argues warrant a retrial.             First, he asserts that the

district court erred in excluding evidence of a rifle test that he

took after his termination from the Department, which he claims

would have rebutted the results of the rifle test that he had

failed during his training.          Second, he claims that the court

failed to sequester witnesses in violation of Federal Rule of

Evidence 615.       Finally, he argues that the court improperly

admitted prejudicial and inflammatory evidence on the number of

veterans at the Department.




                                    - 8 -
                                 II.

            USERRA prohibits employers from discriminating on the

basis of military service.     The operative provision, 38 U.S.C.

§   4311,    states,   inter   alia,    that    a    person     who   "has

performed[] . . . service in a uniformed service shall not be

denied initial employment, reemployment, retention in employment,

promotion, or any benefit of employment by an employer on the basis

of [the military service]."    Id. § 4311(a).       An employee making a

discrimination claim under USERRA bears the initial burden of

showing, by a preponderance of the evidence, that the employee's

military status was "at least a motivating or substantial factor"

in the adverse employment action.       Valázquez-García v. Horizon

Lines of P.R., 473 F.3d 11, 17 (1st Cir. 2007); see also Sheehan

v. Dep't of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).               Such

discriminatory intent or motivation may be proven by direct or

circumstantial    evidence,    which     includes,      among     others,

"inconsistencies between the proffered reason and other actions of

the employer, an employer's hostility towards members protected by

the statute together with knowledge of the employee's military

activity, and disparate treatment of certain employees compared to

other employees with similar work records or offenses."          Sheehan,

240 F.3d at 1014. If the plaintiff meets this initial requirement,

the burden shifts to the employer, who must then "prove, by a

preponderance of the evidence, that the action would have been


                                - 9 -
taken despite the protected status."                  Velázquez-García, 473 F.3d

at    17    (quoting        Sheehan,   240   F.3d     at    1014);    see    38     U.S.C.

§ 4311(c)(1).

                With   this     background    in    mind,     we    address       each    of

Angiuoni's evidentiary claims.

A.    Rifle Test Evidence

                On the third day of trial, Angiuoni's counsel tried to

show the jury a physical exhibit containing the results of a rifle

test that Anguioni took after his termination.                      Specifically, the

exhibit was an unmarked and unidentified picture of a bullseye

with multiple shots in the middle.                 Defense counsel objected.             In

a sidebar conversation with counsel for both parties, the district

court judge asked why the evidence was relevant.                             Angiuoni's

counsel said it would show that Angiuoni's failure on the May 2009

rifle test was likely attributable to a faulty rifle.                              Defense

counsel argued that the issue at trial was whether Angiuoni failed

the rifle test during his employment.                 His rifle skills following

his    termination          were   irrelevant.        The    court     sustained         the

objection.

                The parties dispute whether Angiuoni waived this claim

of error by failing to make an offer of proof or mark the exhibit

for identification in the trial proceedings.                       We need not -- and

hence      do   not    --    address   the   waiver    issue       because    we    reject

Angiuoni's claim on the merits.              See, e.g., Yeboah-Sefah v. Ficco,


                                         - 10 -
556 F.3d 53, 68 n.6 (1st Cir. 2009) ("[B]ecause we easily reject

petitioner's claim on the merits, we need not resolve this dispute

[regarding waiver].").

           We afford trial courts "a wide berth in respect to

regulating the scope of rebuttal testimony."                  United States v.

Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001); see also Geders v.

United States, 425 U.S. 80, 86-87 (1976) ("Within limits, the

[trial]    judge       may    control        the      scope     of    rebuttal

testimony, . . . [and] may refuse to allow cumulative, repetitive,

or irrelevant testimony . . . .").              Indeed, while "[r]ebuttal

evidence   may    be   introduced    to    explain,   repel,    contradict   or

disprove an adversary's proof," its "admissibility is a matter for

the trial court's discretion."            United States v. Laboy, 909 F.2d

581, 588 (1st Cir. 1990).           The wide latitude afforded to trial

courts extends to "determining whether proposed evidence is proper

rebuttal."1      United States v. Thuna, 786 F.2d 437, 444 (1st Cir.

1986); see also United States v. Cepeda Penes, 577 F.2d 754, 760

(1st Cir. 1978).




     1 Hence, we reject Angiuoni's argument that de novo review
should apply because rebuttal evidence is admissible as a matter
of right.     As we noted above, his underlying assertion is
incorrect. See Laboy, 909 F.2d at 588. Moreover, the argument
misses the point because the district court decided that the
evidence that Angiuoni sought to introduce was irrelevant (and
thus did not constitute rebuttal evidence), not that Angiuoni could
not present rebuttal evidence.


                                    - 11 -
           We    find   no   such   abuse    of   discretion   here.   Most

critically, even if we were to assume that the exhibit that

Angiuoni sought to present to the jury -- an unidentified picture

of a bullseye -- was the result of Angiuoni's rifle test, it is

undisputed that the test occurred after his termination from the

Department.     Hence, at best, the evidence has limited relevance to

the question of whether defendants improperly relied on the result

of Angiuoni's May 2009 rifle test to evaluate his fitness to be a

police officer.     Relatedly, we do not see how the subsequent test

could have conclusively rebutted the result of Angiuoni's May 2009

rifle test, especially when various officers testified at trial

that they shot with the same fully inspected rifle on the same day

without any problems.

           Additionally, Angiuoni's DNQ on the rifle test was only

one issue among many that defendants considered in evaluating his

suitability for police work.         Even if the subsequent rifle test

could help demonstrate that Angiuoni's failure in May 2009 does

not fairly portray his rifle skills, the probative value of the

evidence for his discrimination claim would be low.              In sum, it

was well within the district court's ample discretion to deny

admission of Angiuoni's rifle test evidence.

B.   Sequestration of Witnesses

           Angiuoni also argues that the district court's failure

to sequester witnesses violated Federal Rule of Evidence 615. Rule


                                    - 12 -
615 provides that, "[a]t a party's request, the court must order

witnesses excluded so that they cannot hear other witnesses'

testimony.     Or the court may do so on its own."              Fed. R. Evid.

615 (emphasis added).        Here, however, Angiuoni never asked for

sequestration.       On the first day of trial, the following exchange

took place between Angiuoni's counsel and the district court:

             [Angiuoni's Counsel]: Thank you, your Honor.
             A quick question beforehand.    I noticed the
             next witness after this witness in the
             courtroom.   I wasn't sure if there was any
             concern, sequestration for having witnesses --

             The Court:   Well, if there hasn't been any
             motion about sequestration, then there's no
             problem.

             [Angiuoni's Counsel]:          The plaintiff calls
             Dwayne Eidens.

             While   Angiuoni   tries   to     characterize    his   counsel's

"question" regarding sequestration as a request, it cannot be so

construed in light of the subsequent remarks, which included

counsel remaining silent after the district court indicated that

it did not understand that any request had been made.

             "Absent   a   request   from     counsel,   the   district   court

enjoys broad discretion in determining whether or not to sequester

witnesses before their testimony."             United States v. Casas, 356

F.3d 104, 126 (1st Cir. 2004); see also United States v. De Jongh,




                                     - 13 -
937 F.2d 1, 3 (1st Cir. 1991).        No such abuse occurred here.2

Indeed, other than conclusory statements about how the witnesses'

presence compromised effective cross-examinations, Angiuoni has

not shown how failure to sequester witnesses was prejudicial in

this case.   See United States v. Charles, 456 F.3d 249, 257 (1st

Cir. 2006) (noting that "a district court's decision on whether to

sequester a witness" will "not be questioned absent a showing of

prejudice") (citing United States v. Jewett, 520 F.2d 581, 584

(1st Cir. 1975)).     If anything, the record shows that Angiuoni's

counsel himself asked witnesses during cross-examinations whether

they had been present during the testimonies of other witnesses to

help refresh their memories and elicit favorable responses.         Thus,

the court did not abuse its discretion in deciding not to sequester

witnesses sua sponte.

C.   Evidence Regarding the Number of Veterans at the Department

           Finally,   Angiuoni   contends   that   the   district   court

abused its discretion in allowing evidence regarding the number of

veterans at the Department.3      In particular, he argues that the




      2Arguably, plain error review should apply here because
Angiuoni did not object to the court's decision not to sequester
witnesses.   His claim fails even under the abuse of discretion
standard, however, and thus we do not linger on the standard of
review. See United States v. McDonough, 727 F.3d 143, 163 n.12
(1st Cir. 2013).
      3As with the previous issues, the parties dispute whether
Angiuoni waived this contention. Because Angiuoni's claim "fails


                                 - 14 -
evidence was highly prejudicial and inflammatory because it could

have misled the jury to believe that Angiuoni had to prove that

the Department as a whole had an anti-military bias, when, in fact,

his USERRA discrimination claim at trial was that "Officer Moran[]

held an anti-military bias against him," and that "Chief Rosa and

the Department relied on Officer Moran's biased and unfavorable

review of Angiuoni" in making a termination recommendation.

            First, we disagree with Angiuoni's characterization of

his claim.      In his amended complaint, Angiuoni alleged that

"certain    officers    and   superiors    in   the       Department,   including

Plaintiff's FTO, ha[d] expressed a strong antagonism to veterans."

He   then   listed     "[e]xamples    of   incidents        and   comments    that

demonstrate [such] animus," which included conduct of officers at

the Department other than Officer Moran. Similarly, in his Answers

to Interrogatories, Angiuoni argued that there is "a general bias

against veterans" within the Department.             At the least, therefore,

his own allegations made the issue of generalized bias relevant.

            We also reiterate here that an employer's "expressed

hostility    towards    [veterans]"     may     be    a    relevant     factor   in

determining discriminatory motivation.           Sheehan, 240 F.3d at 1014;

see also Hance v. Norfolk S. Ry. Co., 571 F.3d 511, 518 (6th Cir.

2009); Leisek v. Brightwood Corp., 278 F.3d 895, 900 (9th Cir.


under even the less deferential abuse of discretion standard, we
decline to resolve the dispute." McDonough, 727 F.3d at 163 n.12.


                                     - 15 -
2002).   Also, courts have considered an employer's lack of general

bias or hostility towards people with military service in rejecting

a discrimination claim under the USERRA.            See Becker v. Dep't of

Veterans   Affairs,    414   F.     App'x    274,   277   (Fed.    Cir.   2011)

(considering   the    fact   that   other    veterans     were    selected   for

interviews by the employer in denying a claim that the plaintiff's

veteran status was a motivating factor in not being selected for

an interview); Burroughs v. Dep't of Army, 254 F. App'x 814, 817

(Fed. Cir. 2007) (denying a USERRA discrimination claim because,

inter alia, "there is nothing in the record to suggest anti-veteran

animus on the part of the screening committee in particular, and

the agency as a whole").      Hence, while we acknowledge, as did the

district court, that the probative value of the evidence regarding

the number of veterans at the Department is low, see Velázquez-

García, 473 F.3d at 20 (noting that "the failure to treat all

members of a class with similar discriminatory animus does not

preclude a claim by a member of that class who is so treated"), we

cannot conclude that allowing such evidence was an abuse of

discretion.

           Affirmed.




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