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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2163 <br> <br>                 EDWARD HERNANDEZ-TORRES, ET AL., <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>             INTERCONTINENTAL TRADING, INC., ET AL., <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Hctor M. Laffitte, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br> <br>Schwarzer, Senior District Judge, <br> <br>and Saris, District Judge. <br> <br>                      _____________________ <br> <br>     Kevin G. Little, with whom Law Offices David Efrn was on <br>brief, for appellants. <br>     Jos R. Garca-Prez, with whom Bufete Bennazar, C.S.P. was on <br>brief, for appellees. <br> <br> <br>                       ____________________ <br> <br>                        October 13, 1998 <br>                      ____________________

          SCHWARZER, Senior District Judge.  Edward Hernndez- Torres, his <br>wife Mara de los Angeles Jimnez, and the conjugal partnership <br>constituted between them (collectively "Hernndez") sued Master <br>Foods Interamerica ("MFI") and its parent company, Mars, Inc. <br>("Mars"), for religious discrimination in violation of 42 U.S.C. <br> 2000e-2, e-3 ("Title VII") and Puerto Rican Law.  Hernndez <br>alleged in his complaint that MFI subjected him to a hostile work <br>environment and constructively discharged him.  <br>     At the conclusion of the jury trial, the district court granted <br>judgment as a matter of law to defendants on the constructive <br>discharge claim.  The jury returned a verdict in favor of <br>defendants on the hostile work environment claim.  Hernndez <br>moved for a new trial pursuant to Federal Rules of Civil <br>Procedure 59, which the district court denied.   <br>     Hernndez appeals from the district court's judgment as a matter <br>of law and the denial of his motion for a new trial.  We have <br>jurisdiction pursuant to 28 U.S.C.  1331 and 1367, and we <br>affirm. <br>                           BACKGROUND <br>     Hernndez began working for MFI in 1987, first temporarily and <br>    later permanently, as an accounts payable clerk.  He was <br>supervised by Angel Rodrguez in 1988, Hctor Rodrguez in 1991, <br>          and Julio Ocampo throughout his employment.  <br>     He had become involved with a Christian group known as Defensores <br>   de la Fe shortly before he obtained a position at MFI.  He <br>alleges that his supervisors, including Ocampo, were fully aware <br> of his fundamentalist beliefs when they offered him a job and <br>that he rarely engaged in religious activities during scheduled <br>                          work hours. <br>        Hernndez made the following allegations of religious <br>                discrimination and retaliation: <br>             A.  1988 Incident with Angel Rodrguez <br>     Hernndez contends that Angel Rodrguez repeatedly told offensive <br>    religious jokes in his presence and unjustly criticized <br>Hernndez' work.  Hernndez lashed out at Rodrguez on one such <br>occasion, prompting Rodrguez to reprimand Hernndez in writing <br>    for insubordination and the use of profane language.  He <br>responded with a complaint in which he alleged that Rodrguez was <br>     persecuting him for religious reasons.  Upon Ocampo's <br>    intervention, Hernndez admitted his insubordination and <br>                     apologized in writing. <br>                 B.  1991 Incident with Ocampo <br>     Ocampo spotted Hernndez reading the Bible during his lunch break <br> sometime after the summer of 1991.  Although Ocampo knew that <br>Hernndez was at lunch, he told Rodrguez to instruct Hernndez <br>to stop reading the Bible.  Hernndez did not file a complaint or <br>            make a written record of the incident.  <br>     Hernndez received training for MFI's new accounting system in <br>1992.  Shortly thereafter, Ocampo granted Hernndez' request for <br> a temporary employee to help Hernndez implement the accounts <br>payable systems and complete his preexisting duties.  Hernndez <br>  later began working with the refurbished payroll conversion <br>                            system. <br>          C.  September 2, 1992, Incident with Ocampo <br>     On September 2, 1992, Hernndez was on the telephone when a co- <br>worker passed him a religious pamphlet.  Hernndez alleges that <br>Ocampo noticed the religious tract on his desk, called him into a <br>  conference room and threatened to fire him if he was caught <br>reading or even speaking of religious matters again.  Hernndez <br> consulted Nellie Negrn, MFI's personnel manager, the same day <br>  and attempted to file a state insurance fund application to <br> obtain treatment for stress.  Negrn dissuaded him from filing <br>the claim and he eventually attended sessions with MFI's in-house <br>psychologists.  Hctor Rodrguez sent Hernndez a memorandum on <br>  September 3 requesting that he refrain from reading nonjob- <br> related materials during work hours.  Hernndez wrote a letter <br>  clarifying that he had been reading religious literature and <br>apologizing for his conduct.  He contends that Ocampo challenged <br>    him to a fight after reading this letter, which prompted <br> Hernndez to apprise the personnel department of the encounter <br>  and resubmit his state insurance fund application.  Negrn's <br>    assistant arranged a meeting with Ocampo and various MFI <br>officials to discuss the incident.  Ocampo extended an apology to <br>        Hernndez after the meeting, which he accepted. <br>     Hernndez alleges that despite Ocampo's apology, his employment <br>   situation worsened following the September 1992 incident.  <br>Specifically, he felt pressured to complete his assigned tasks in <br>eight hours and feared that working overtime would result in his <br>discharge from MFI.  In fact, he was granted overtime each time <br>he requested it and was the only accounting employee who received <br>   payment for the extra work.  Hernndez also noted a marked <br>increase in electronic messages assigning him additional duties  <br> commenting on his lack of productivity after September 1992.  <br>However, his supervisors, including Ocampo, continued to commend <br>   his performance, and Ocampo approved the hiring of another <br> temporary employee to ease Hernndez' burden in November 1992. <br>     Hernndez resigned on February 2, 1993, after learning that <br> Ocampo had decided to terminate his temporary help.  Rodrguez <br>confirmed Hernndez' resignation in a February 2 memo which made <br>no reference to religious discrimination.  At Ocampo's request, <br>Hernndez continued to work until the end of the week.  Although <br>    Hernndez initially cited stress-related reasons for his <br>   resignation, in a February 5 memorandum he referred to the <br>    September 1992 incident with Ocampo as the source of his <br>                    employment difficulties.

                           DISCUSSION <br>             I.  REFUSAL TO INSTRUCT ON RETALIATION <br>     The district court denied Hernndez' motion for a new trial, <br> rejecting his contention that the court should have instructed <br>the jury on the retaliation claim.  It stated that it refused to <br>give an instruction because "there was no evidence in the Record <br>to support the allegation that Defendants discriminated against <br>Plaintiff as a result of his opposition to any alleged employment <br>practice."  Hernndez contends that the court erred in refusing <br>to instruct on retaliation. He argues that Ocampo's retaliatory <br>conduct, which resulted in a workplace permeated with harassment <br>and in Hernndez' ultimate "discharge," was supported by <br>substantial evidence at trial.  <br>      Title VII makes it unlawful for an employer to retaliate against <br>an employee:  <br>          It shall be an unlawful employment practice for an employer to <br>          discriminate against any of his employees . . . because he has <br>          opposed any practice made an unlawful employment practice by this <br>          subchapter, or because he has made a charge, testified, assisted, <br>          or participated in any manner in an investigation, proceeding, or <br>          hearing under this subchapter. <br> <br>42 U.S.C.  2000e-3(a).  To establish a prima facie case of <br>retaliation in the workplace, Hernndez must demonstrate that:  <br>(1) He engaged in protected conduct under Title VII; (2) he <br>suffered an adverse employment action; and (3) the adverse action <br>is causally connected to the protected activity.  See Fennell v. <br>First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). <br>     We assume for purposes of this disposition that Hernndez engaged <br>in protected activity and that his informal complaint to the <br>personnel department constituted sufficient opposition.  His <br>appeal fails, however, because he did not suffer an adverse <br>employment action.  Section 2000e-3 encompasses a variety of <br>adverse employment actions, including demotions, disadvantageous <br>transfers or assignments, refusals to promote, unwarranted <br>negative job evaluations, and toleration of harassment by other <br>employees.  See Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. <br>1994) (citing 3 Arthur Larson & Lex K. Larson, Employment <br>Discrimination,  87.20, at 17-101 to 17-107 (1994)).  The <br>evidence reflects none of such actions.   <br>     Hernndez complains that he received an increased amount of <br>electronic messages which contained onerous assignments and what <br>Hernndez interpreted as critical reports on his productivity.  <br>This influx of electronic messages does not, however, rise to the <br>level of an adverse action because MFI supervisors similarly <br>urged all MFI accounting employees to implement the new systems <br>quickly and efficiently.  Significantly, Hernndez continued to <br>receive favorable performance evaluations from his supervisors, <br>including a November 25 memorandum lauding his installation of <br>the payroll system.  Ocampo's alleged admonition that Hernndez <br>complete his work within an eight hour period "or else" does not <br>constitute adverse action.  Hernndez was granted overtime each <br>time he requested it and was the only accounting employee who <br>received temporary assistance and payment for working overtime.  <br>Cf. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) <br>(holding that divesting employee of assignments and <br>responsibilities establishes an adverse employment action). <br>     Hernndez has failed to offer facts indicating that his informal <br>complaint caused any adverse actions.  Specifically, Hernndez' <br>accusations are "lacking in the concrete documentation necessary <br>to prove the causal link between [his] protected activity and <br>[his] retaliatory treatment."  See Ramos v. Roche Prods., Inc., <br>936 F.2d 43, 49 (1st Cir. 1991).  First, the additional <br>responsibilities outlined in the electronic messages, though <br>onerous, resulted from a policy that Hernndez agreed to <br>implement long before Ocampo asked him to "go outside."  See, <br>e.g., Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31 <br>F.3d 9, 16 (1st Cir. 1994) (holding that employee failed to <br>establish causal link between employee's involvement in protected <br>union activity and August 1990 probation because there was no <br>evidence in the record that union activity occurred before then); <br>Ramos, 936 F.2d at 49 (noting that petitioner was passed over for <br>promotion twice before signing affidavit with EEOC in reaching <br>conclusion that petitioner failed to establish causal link <br>between protected activity and adverse employment action). <br>     In addition, that Ocampo imposed disadvantageous assignments and <br>directed that work be completed in eight hours "or else" does not <br>constitute retaliation.  Hernndez' accounting coworkers were <br>required to work long hours as well.  If Hernndez was singled <br>out, it was in a laudatory fashion as the only accounting <br>employee to receive overtime pay or temporary assistance in late <br>1992 and early 1993.  In sum, he failed to present evidence <br>sufficient to raise an  inference that the additional stress he <br>experienced at MFI after September 1992 resulted from retaliation <br>rather than from the previously agreed upon implementation of <br>MFI's new accounting system. <br>     Finally, Hernndez' claim that he suffered a retaliatory <br>constructive discharge fails.  A "discharge" under  2000e-3(a) <br>may be constructive as well as a direct firing.  See Hart v. University Sys., 938 F. Supp. 104, 111 (D.N.H. 1996) (holding <br>that employee established material issue of fact as to <br>retaliatory constructive discharge); see also Munday v. Waste <br>Management of N. America, Inc., 126 F.3d 239, 243 (4th Cir. 1997) <br>(explaining that constructive discharge is adverse employment <br>action when "record discloses that it was in retaliation for the <br>employee's exercise of rights protected by the Act"), cert. <br>denied, 118 S. Ct. 1053 (1998).  To prove a retaliatory <br>constructive discharge, Hernndez must establish that his work <br>environment was hostile.  See Smith v. Bath Iron Works Corp., 943 <br>F.2d 164, 166 (1st Cir. 1991) (noting that magistrate judge found <br>that employee established hostile work environment element of <br>constructive discharge); see also Schwapp v. Town of Avon, 118 <br>F.3d 106, 112 (2d Cir. 1997) (holding that constructive discharge <br>claim "rises or falls on the determination of the hostile work <br>environment facts"); Konstantopoulos v.  Westvaco Corp., 112 F.3d <br>710, 718 (3d Cir. 1997) (holding that in light of court's <br>conclusion that no hostile work environment existed when <br>petitioner left her place of employment, she cannot prove "the <br>necessary predicate to maintain a constructive discharge claim"), <br>cert. denied, 118 S. Ct. 1079 (1998); Landgraf v. USI Film <br>Prods., 968 F.2d 427, 430 (5th Cir. 1992) ("To prove constructive <br>discharge, the plaintiff must demonstrate a greater severity or <br>pervasiveness of harassment than the minimum required to prove a <br>hostile working environment.").  Because the jury, with all of <br>Hernndez' evidence on his retaliation claim before it, returned <br>an adverse verdict on his hostile work environment claim, he <br>cannot succeed on his retaliatory constructive discharge claim.  <br>Hernndez argues that another jury might find the requisite <br>hostile work environment, but he has had his day in court and is <br>not entitled to a new trial on that speculation alone.  The jury <br>having rejected the hostile work environment claim, it <br>necessarily rejected the basis for the retaliatory constructive <br>discharge claim. <br>II.  REJECTION OF PROFFERED HARRIS INSTRUCTION <br>     The district court's hostile work environment instruction <br>correctly informed the jury of the requisite elements of <br>Hernndez' claim, stating in pertinent part: <br>          You must determine whether there was hostile religious harassment <br>          based on the totality of the circumstances, and you may consider <br>          the following factors:  The total physical environment of the <br>          plaintiff's work area; the nature of the unwelcome acts or words; <br>          the frequency of the offensive encounters; the severity of the <br>          conduct; and the context in which the religious harassment <br>          occurred; whether the conduct was unwelcome; and the effect o[n] <br>          the plaintiff's psychological well-being . . . . <br> <br>Hernndez unpersuasively argues that the court failed to follow <br>Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), when it <br>refused to instruct the jury that "to be actionable, a hostile <br>environment need not seriously affect an employee's psychological <br>well-being or lead the employee to suffer injury." <br>     The court's instruction, fairly read, conforms to the HarrisCourt's holding that "while psychological harm, like any other <br>relevant factor, may be taken into account, no single factor is <br>required."  Id. at 23.  The instruction adequately explained the <br>law regarding Hernndez' hostile work environment claim.  SeeMcKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981) ("As <br>long as the judge's instruction properly apprises the jury of the <br>applicable law, failure to give the exact instruction requested <br>does not prejudice the objecting party."). <br>III.  REJECTION OF "MOTIVATING FACTOR" INSTRUCTIONS <br>     Hernndez argues that the district court erred in refusing to <br>instruct the jury that an employee's religious beliefs need only  <br>be a motivating factor rather than the sole reason for actionable <br>mistreatment under the Civil Rights Act of 1991.  See 42 U.S.C. <br> 2000e-2(m).  <br>     The court declined to give Hernndez' proposed instructions and <br>overruled his objection, noting that a jury instruction on <br>motivation is inapposite in the context of a hostile work <br>environment claim.  The court further held that its hostile work <br>environment charge adequately instructed the jury that Hernndez' <br>religious convictions did not have to be the sole motivating <br>factor for the alleged harassment and hostile work environment. <br>     The court's instruction, fairly read, does not imply that <br>Hernndez was required to prove that religious discrimination <br>constituted the sole motivation for defendants' conduct.  It  <br>"properly apprise[d] the jury of the applicable law."  SeeMcKinnon, 638 F.2d at 274. <br>IV.  CONSTRUCTIVE DISCHARGE CLAIM <br>     Hernndez contends that the evidence was sufficient to warrant <br>submission of his constructive discharge claim to a jury. As <br>discussed above, Hernndez' constructive discharge claim fails <br>because the jury rendered an adverse verdict on the requisite <br>hostile work environment claim.   <br>V.  ADMISSION AND EXCLUSION OF WITNESS TESTIMONY <br>     We review the admission or exclusion of evidence for abuse of <br>discretion.  See Cohen v. Brown Univ., 101 F.3d 155, 185 (1st <br>Cir. 1996), cert. denied, 117 S. Ct. 1469 (1997).  We review the <br>district court's balancing of probative value against prejudicial <br>impact to determine "whether the balance actually struck is so <br>egregiously one-sided that it requires reversal."  Espeaignnettev. Gene Tierney Co., 43 F.3d 1, 8 (1st Cir. 1994).

     A.  Admission of Sandra Marrero's Testimony <br>     Hernndez argues that the district court, over his repeated <br>objection, erroneously permitted Sandra Marrero to testify.  He <br>further contends that defendants violated Federal Rule of Civil <br>Procedure 26(a)(3) because Marrero went unnamed during the <br>discovery period.  He complains that had her identity been <br>timely disclosed, he might have deposed her instead of another <br>witness in conformity with the court's allotment of five <br>depositions.  The court ruled that Hernndez' argument was <br>"meritless" and did "not require additional discussion."   <br>     The district court did not err.  Federal Rule of Civil Procedure <br>26(a)(3) does not require disclosure of a prospective witness' <br>identity during the discovery period.  Rather, Rule 26(a)(3)(C) <br>declares that "[u]nless otherwise directed by the court, these <br>disclosures shall be made at least 30 days before trial."  <br>Marrero was named as a witness in the October 16, 1996, pretrial <br>order, well over thirty days before trial commenced on November <br>21, 1996. <br>     B.  Exclusion of Victor Nales and Jasmin Vsquez as                  <br>Witnesses <br> <br>     Hernndez argues that the district court erred in excluding the <br>testimony of Victor Nales and Jasmin Vsquez.  Hernndez alleges <br>that Nales and Vsquez were identified in his initial <br>administrative complaint and were included in the collective <br>description "employees or representatives of the defendants" <br>offered during the discovery period.  He further contends that <br>the court's decision to exclude Nales and Vsquez affected the <br>outcome of the trial because they were the only former MFI <br>employees listed in the pretrial order and thus would have <br>corroborated his testimony.  The district court summarily <br>dismissed Hernndez' claim, noting that the issue did "not <br>require additional discussion."    <br>     The district court did not abuse its discretion.  The exclusion <br>of Nales and Vsquez as witnesses was harmless because the <br>pretrial order did not distinguish between the testimony of  <br>Nales and Vsquez and that of the eight MFI employees listed in <br>the same group of prospective witnesses.  Without specifying what <br>Nales and Vsquez would have testified at trial, Hernndez has <br>not shown that their testimony would not be cumulative.  See Hallv. Arthur, 141 F.3d 844, 849 (8th Cir. 1998) (holding that <br>exclusion of testimony was harmless because testimony was <br>cumulative and "defendants did not make their offer of proof in <br>the form of questions and answers").  Hernndez' general <br>assertion that the prospective witnesses would have corroborated <br>his testimony concerning religious harassment at MFI is <br>insufficient.  See McDonald v. Steward, 132 F.3d 225, 232 (5th <br>Cir. 1998) ("The burden of proving substantial prejudice lies <br>with the party asserting error.") (citing Federal Deposit Ins. <br>Corp. v. Mijalis, 15 F.3d 1314, 1319 (5th Cir. 1994)). <br>                           CONCLUSION <br>     We affirm the district court's entry of judgment as a matter of <br>     law and its denial of Hernndez' motion for a new trial.</pre>

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