                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 13-1836

                              NEAL W. DIAS,

                        Plaintiff, Appellant,

                                     v.

                     VERIZON NEW ENGLAND INC.,

                         Defendant, Appellee.


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

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


                               Before
                     Torruella, Circuit Judge,
                    Souter,* Associate Justice,
                      Thompson, Circuit Judge.


     Maria Mancini Scott, with whom Candida Marin Cote and Keches
Law Group, P.C. were on brief, for appellant.
     Timothy P. Van Dyck, with whom Robert G. Young, Nathanael J.C.
Nichols, and Edwards Wildman Palmer LLP were on brief, for
appellee.



                              June 5, 2014




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
          SOUTER, Associate Justice.         Neal W. Dias, a former

employee of Verizon New England Inc., appeals the district court's

denial of his motion for a new trial, filed in the wake of a

defendant's jury verdict on Dias's claim that Verizon discharged

him and subjected him to a hostile work environment in retaliation

for   engaging   in   activity   protected   by   Massachusetts   anti-

discrimination law.     Dias says that the jury instructions and

verdict form were erroneous because they made no reference to a

particular communication as being an example of protected activity.

We hold that any error was necessarily harmless and affirm.

                                  I.

          Dias, "a black man of Cape Verdean descent," Appellant's

Br. 2, worked for Verizon from 1997 to 2008, when he was let go in

a company-wide reduction in workforce.       For his first seven years

with Verizon, Dias worked as a lineman, and in 2004, he was

promoted to the position of a first-level manager, as he remained

until his discharge.    Late in that year, he swore at and allegedly

threatened one of his colleagues, in an incident that prompted

Verizon to give him a written warning and transfer him to a

different work site.    Shortly after that, Dias filed an internal

complaint with Verizon's Equal Employment Opportunity Office in

which he asserted, among other things, that this disciplinary

action constituted race-based discrimination. Verizon reviewed the

matter and found the complaint meritless.


                                  -2-
            In 2006, for reasons unrelated to this case, Verizon

transferred Dias to a different department, where he reported to

second-level manager Paul McCarthy.          After getting a lower rating

from McCarthy in his 2006 year-end performance evaluation than his

white colleague, Laurie McDonald, Dias complained to McCarthy's

supervisor that his relatively low rating was the result of racial

discrimination.      He   repeated    the   allegation   in   a   Charge   of

Discrimination filed with the Massachusetts Commission Against

Discrimination ("MCAD").

            In October 2007, a Verizon technician was electrocuted

while working on a telephone pole.          Although Dias was not working

that day, he was on call to respond to any emergencies, and after

he learned of the accident he went to the scene to help.             When he

arrived, McDonald was there and was on the phone with McCarthy.

McCarthy determined that his department had no role to play in the

aftermath of the accident and ordered his people, including Dias

and McDonald, to leave the area.

            Three days later, Dias sent McCarthy a five-page, single-

spaced e-mail written in some agitation, criticizing McCarthy's

decision to direct him and the others to leave the scene of the

accident.     See   Record Appendix ("R.A") 151-155.              He accused

McCarthy of being more concerned with ensuring that Verizon did not

have to pay him for overtime work than with responding adequately

to the death of the technician.            The e-mail also voiced Dias's


                                     -3-
displeasure at McCarthy's general treatment of him, and included

considerable personal invective.               See, e.g., id. at 154 ("I've had

to deal with you calling me friggin pathetic when I call out ill,

taking money from me and my family by not providing me with the

raise and bonus I well deserved . . . and many other unethical

performances."); id. ("What you did on [the day of the accident]

was   who   you    are   and   I     have    never   been     so    disappointed       and

embarrassed for any one in my life . . . .").                      Over the course of

the e-mail, Dias used a cognate of the word "discriminate" five

times, but he did not use the word "race," nor did he expressly

assert a belief that race was behind McCarthy's perceived ill

usage.      See,    e.g.,      id.    ("Your      treatment    of       me   is    .   .   .

discriminating and out right [sic] disrespectful.").                         The e-mail

closed by noting that Dias had submitted a time sheet for overtime

pay and stating that "[i]f you refuse to pay me for my on call

duty, that is you [sic] choice."               Id. at 155.

            Dias continued to work under McCarthy's supervision, and

in December 2007 Dias complained to McCarthy that a co-worker

insulted him with a pejorative, race-based comment.                               McCarthy

promptly    investigated       the    accusation,      found       it   credible,      and

suspended the offending employee without pay.                      (The employee was

reinstated nineteen days later as a result of negotiations between

Verizon and the employee's union.) In February 2008, McCarthy gave

Dias a positive performance evaluation, which resulted in a large


                                            -4-
bonus, equivalent to roughly ten percent of Dias's base pay, and a

salary increase.

             Late in October 2008, McCarthy was directed to rate the

performance of the first-level managers under his supervision for

the purpose of determining which ones to let go in shrinking the

workforce.     He ranked Dias as the second worst out of five.            At

trial, McCarthy testified that he based his decision on Dias's

failure to meet productivity goals, as well as McCarthy's sense

that Dias was not a strong leader, not a team player, and not an

engaged manager.     Owing largely to this evaluation, Dias was among

twelve first-level managers Verizon discharged.

                                     II.

             Dias   filed   this   action   in   the   Superior   Court   of

Massachusetts alleging, among other things, that he was terminated

and subjected to a hostile work environment in retaliation for his

complaints     of   race-based     discrimination,     in   violation     of

Massachusetts law.      See Mass. G. L. c. 151B § 4 ("It shall be an

unlawful practice . . . [f]or any . . . employer . . . to discharge

. . . any person because he has . . . filed a complaint" of racial

discrimination.); Clifton v. Mass. Bay Transp. Auth., 839 N.E.2d

314, 318 (Mass. 2005) ("[U]nlawful retaliation . . . may . . .

consist of a continuing pattern of behavior that . . ., by its

insidious nature," amounts to a "hostile work environment.").




                                     -5-
Verizon removed the action for jury trial in federal district

court.

           In    anticipation   of     the   charge   conference,   Dias   and

Verizon submitted proposed jury instructions on retaliation that

were, for purposes here, materially identical.                Both sets of

proposed instructions mentioned examples of protected activity for

which retaliation would be unlawful: Dias's February 2005 internal

complaint to Verizon's EEO Office and his March 2007 claim of

discrimination filed with the MCAD.          See R.A. 76.    Dias's proposed

instruction, for example, read, "[Dias] claims that [Verizon]

retaliated against him because he filed an internal EEO complaint,

as well as an external complaint with the [MCAD]. . . .             Your duty

here is to assess whether [Dias's] lay off from Verizon was in

retaliation for . . . asserting his rights by filing an internal

complaint and then later filing a complaint with the [MCAD]." Id.

Neither proposed instruction referred to Dias's October 2007 e-mail

to   McCarthy.     At   the   charge    conference,    the   district   court

announced that it would instruct the jury as Dias had requested,

and the Court also circulated its proposed special verdict form,

which included questions on retaliation tracking that instruction:

      Did [Verizon] terminate the employment of [Dias] [or
      subject him to a hostile work environment] because he
      engaged in protected activity (i.e. the filing of a
      complaint with Verizon's EEO Office in February, 2005 or
      a complaint with the MCAD in March, 2007)?




                                 -6-
R.A. 87.    Dias's counsel objected to the verdict form for failing

to refer to the October 2007 e-mail, but she made it clear that her

objection was limited to the form, and not directed at the court's

adoption of her own proposed jury instruction on retaliation: "my

question stems from the proposed verdict form, which I know we are

not talking about now."          R.A. 734.         The court overruled the

objection, stating that it "has reviewed the e-mail . . . , and has

concluded   that    Mr.   Dias   does    not     clearly    allege   race-based

discrimination, and that it is not, therefore, protected activity."

R.A. 761.

            The jury returned a verdict for Verizon, after checking

the "no" box after the retaliatory termination and retaliatory

hostile work environment questions on the verdict form. Dias moved

for a new trial, complaining that the district court's jury

instructions   on   retaliation    and     the    verdict    form    "improperly

precluded the jury . . . from finding that [Verizon] retaliated

against Mr. Dias based on [the October 2007 e-mail]."                 R.A. 91.

The district court denied the motion, and this appeal followed.

                                    III.

            The procedural posture of the appeal is bewildering at

first sight, and although our discussion does not turn on any

technical nicety, some clarification may help to explain how we

reach the dispositive issue.       A party's "notice of appeal must . .

. designate the judgment, order, or part thereof being appealed,"


                                    -7-
Fed. R. App. P. 3(c)(1)(B), and Dias's notice is limited to the

district court's "Order . . . denying Plaintiff's Motion for a New

Trial."     R.A. 143.     This would seem to indicate that our review is

limited to determining whether the district court abused its

discretion in denying Dias's motion for a new trial, without

looking further back. See Latin Am. Music Co. v. Media Power Grp.,

Inc., 705 F.3d 34, 40 (1st Cir. 2013) ("We review the denial of a

motion      for   a    new   trial   for       abuse   of    discretion.").

             But Dias has no argument for a new trial that is not in

fact an argument that there was error in the trial he had, and his

object in purporting to appeal only the refusal to grant a new

trial is presumably to draw attention away from the confusion of

his approach to the submission to the jury of the underlying merits

issues and his limited objection to it.                Although he objected to

the failure of the special findings questions to refer to the e-

mail as protected conduct charging racial discrimination, those

questions simply reflected the very jury instructions he requested

and   was    granted,    which   spoke    only    of   the   internal   and   MCAD

complaints as examples of protected conduct protesting mistreatment

based on race.        He never modified his request for instruction, did

not object to the instructions as given and did not designate the

instructions or special finding questions as a subject of appeal.

             We do not, however, treat his designation of the new

trial issue as excluding consideration of the antecedent objection


                                         -8-
to the special finding questions, for the law in this Circuit is

that Rule 3 should not be applied as artifice to avoid substance

underlying the designated subject of appeal if clearly revealed.

"Our    precedents      encourage       us    to     construe       notices    of    appeal

liberally and examine them in the context of the record as a

whole."       Crawford v. Clark, 578 F.3d 39, 43 (1st Cir. 2009).

Accordingly, we have several times excused imperfect notices of

appeal where, as here, "both sides have fully briefed the merits,

and undertaking appellate review of the original order . . . would

not unfairly prejudice" the appellee.                      Id. (reviewing underlying

judgment where notice of appeal only referred to appellant's motion

for reconsideration of that judgment); Chamorro v. Puerto Rican

Cars, Inc., 304 F.3d 1, 3 (1st Cir. 2002) (same); see also Torres

v.    Oakland    Scavenger      Co.,    487    U.S.        312,   316    (1988)     ("[T]he

requirements [of Rule 3] should be liberally construed and mere

technicalities should not stand in the way of consideration of a

case on the merits" (internal quotation marks omitted)).

              Accordingly, we reach Dias's claim of error in the

special finding questions.             We do not, however, resolve that claim

on the merits, for even if we make the assumption that the refusal

to include the e-mail reference in the verdict form was erroneous,

any    such     error   was     harmless           under    the     standard      that     an

instructional      error   is    reversible          only     when      it   affects     "the

essential       fairness   of    the    trial,       or     would    have    changed     the


                                             -9-
outcome."   Allen v. Chance Mfg. Co., Inc., 873 F.2d 465, 469 (1st

Cir. 1989) (internal quotation mark omitted); see Fed. R. Civ. P.

61 ("courts must disregard all errors and defects that do not

affect any party's substantial rights"); O'Neal v. McAninch, 513

U.S. 432, 441 (1995) (suggesting that the civil and criminal

harmless-error standards are the same).

            Here, even assuming that the October 2007 e-mail was

activity protected under a state law, it is clear that no rational,

properly instructed jury could find that Verizon fired Dias in

retaliation for sending it.     To start with, Verizon's decision to

discharge Dias was made more than a year after the e-mail, an

interval that we have repeatedly indicated is generally too long to

support a reliable inference of cause between protected conduct and

adverse employment action.      See, e.g., Benoit v. Technical Mfg.

Corp., 331 F.3d 166, 175 (1st Cir. 2003) (affirming summary

judgment for employer on federal retaliation claim where protected

conduct occurred more than one year before employee's termination);

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (same,

for gap of nine months); Bishop v. Bell Atlantic Corp., 299 F.3d

53, 60 (1st Cir. 2002) (reversing judgment of the verdict for

employee on retaliation claim under Maine law, where one-year gap

was   too   great    for   finding     "the   required   nexus"   showing

retaliation).       And, to the extent that causation may ever be

inferred despite a substantial delay between the protected conduct


                                     -10-
and the retaliation claimed, this would only be where the record

contains some other evidence of an employer's retaliatory animus

during the intervening time, casting a light of revenge on what the

employer did.       See Bishop, 299 F.3d at 60.       There is nothing of the

sort in this record, though.             Less than two months after the e-

mail, McCarthy responded decisively to Dias's complaint that a co-

worker had taunted him with a racist comment; after an immediate

investigation, McCarthy suspended the offending employee without

pay.      More telling still, a few months after this incident,

McCarthy     gave      Dias   a    favorable   2007       year-end   performance

evaluation, from which ensued not only a large bonus on top of his

2007 base salary, but also a raise for 2008.                 These are not the

actions ordinarily expectable from someone bent on revenge.                    See

Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 101 (1st

Cir. 2007) (intervening salary increase and positive performance

evaluation suggest adverse action unrelated to protected activity).

             The same work history belies Dias's claim that Verizon

retaliated by subjecting him to a hostile work environment.                   Dias

would have to show that he suffered "severe or pervasive harassment

in retaliation for engaging in protected activity," Noviello v.

City of Boston, 398 F.3d 76, 92 (1st Cir. 2005); see also Clifton

v. Mass. Bay Transp. Auth., 839 N.E.2d 314, 318 (Mass. 2005),

whereas    in   this    appeal     he   described    no   specific   "severe   or

pervasive"      treatment     at   Verizon,    let   alone    evidence   of    its


                                        -11-
retaliation for the e-mail.       We are at a loss to see any way that

the   district   court’s    reference     to   the   e-mail   in   its   jury

instructions or verdict form could have altered the jury’s verdict.

                                    IV.

           The   judgment    of   the     district   court    is   AFFIRMED.




                                   -12-
