
USCA1 Opinion

	




          November 25, 1996 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1628                                     JAMES TANCA,                                Plaintiff - Appellant,                                          v.                             NILS NORDBERG, COMMISSIONER,                           AND THE MASSACHUSETTS DEPARTMENT                             OF EMPLOYMENT AND TRAINING,                               Defendants - Appellees.                                 ____________________                                 ____________________                                     ERRATA SHEET                                _____________________               The  opinion of  this Court  issued on  October 28,  1996 is          amended as follows:               On  page 13,  line  3, delete  "lead"  and replace  it  with          "leads".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1628                                     JAMES TANCA,                                Plaintiff - Appellant,                                          v.                             NILS NORDBERG, COMMISSIONER,                           AND THE MASSACHUSETTS DEPARTMENT                             OF EMPLOYMENT AND TRAINING,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Nancy J. Gertner, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                _____________________               Scott  A. Lathrop, with whom  Scott A. Lathrop,  P.C. was on               _________________             _______________________          brief for appellant.               Benjamin  Robbins,  Assistant  Attorney General,  with  whom               _________________          Scott Harshbarger, Attorney General of Massachusetts, and Douglas          _________________                                         _______          Wilkins, Assistant Attorney General, were on brief for appellees.          _______                                 ____________________                                   October 28, 1996                                 ____________________                    TORRUELLA,   Chief  Judge.     Appellant   James  Tanca                    TORRUELLA,   Chief  Judge.                                    ____________          ("Tanca") brought  this action  alleging retaliation  under Title          VII  of the 1964  Civil Rights Act, 42  U.S.C.   2000e-3, against          his employer,  the  Massachusetts Department  of  Employment  and          Training  ("DET") and  Nils Nordberg,  Commissioner of  the DET.1          The central  issue is whether  the changes wrought in  the law by          section 107 of the Civil  Rights Act of 1991, Public  Law 102-166          (the "1991  Act"), which explicitly apply  only to discrimination          claims  (and  which  were   meant  to  partially  overrule  Price                                                                      _____          Waterhouse v. Hopkins, 490 U.S. 228 (1989)), also apply to claims          __________    _______          of retaliation.  We  hold that they do not  and that the rule  of          Price Waterhouse applies to retaliation claims.          ________________                                      BACKGROUND                                      BACKGROUND                    The following facts are drawn from the district court's          Memorandum and Order.   Tanca is a white male  who was a longterm          DET  employee.   After several  minority employees  were promoted          into positions for  which Tanca had applied, Tanca  complained to          high  level DET  managers.    He  believed  that  he  was  better          qualified than  the promoted  employees and that  their promotion          was due to reverse discrimination.  At some point, a  position as          an  Unemployment  Insurance  Manager ("UI")  became  available in          DET's Hyannis, Massachusetts, office,  where Tanca worked, and he          applied.    Instead  of  offering him  the  Hyannis  UI position,          however,  DET offered  him  a similar  position  in New  Bedford,                                        ____________________          1 A  count alleging  violations of  Mass.  Gen. L.  ch. 151B  was          voluntarily dismissed.                                         -2-          Massachusetts.  Tanca brought  suit, alleging that DET retaliated          against  him for making his complaints -- a protected activity --          by refusing him  the Hyannis  position and offering  him the  New          Bedford one.  Because  of the distance between Hyannis,  where he          lived, and New Bedford, Tanca  described the offered position  as          significantly less desirable.   DET denied that the decision  was          motivated by retaliation, and maintained that it was based solely          on legitimate concerns regarding Tanca's management abilities and          DET's ability to supervise Tanca in New Bedford.                    The case  was tried  before  a jury,  which found  that          Tanca had  engaged in good  faith activity protected  under Title          VII,  that the activity was a motivating factor in DET's decision          (and thus that DET had retaliated), but that Tanca would not have          received  the Hyannis  UI position  even absent  the illegitimate          consideration.    The  district court  then  granted  defendants'          Motion  for Judgment  as  a Matter  of  Law, finding  that  Price                                                                      _____          Waterhouse  governed the  parties' dispute  and that,  under that          __________          case, because the jury found that DET would have reached the same          decision absent  any retaliatory motives, DET could  not be found          liable.  This appeal ensued.                                      DISCUSSION                                      DISCUSSION                        A.  Price Waterhouse and the 1991 Act                        A.  Price Waterhouse and the 1991 Act                            _________________________________                    We  first outline the  pertinent law, and  then turn to          the interpretation of the statutes in question.                              1.  The Legal Framework                                1.  The Legal Framework                                    ___________________                    At the  center of  this case sits  the Supreme  Court's                                         -3-          decision  in Price Waterhouse.  In that gender bias decision, the                       ________________          Court confronted a case in  which the adverse employment decision          resulted from  a mixture of legitimate  and illegitimate motives.          Settling  a dispute among the circuits over how to deal with such          "mixed  motive" cases, see Price Waterhouse, 490 U.S. at 238 n.2,                                 ___ ________________          the Court determined that "an employer shall not be  liable if it          can prove that, even if it had not taken gender  into account, it          would have  come  to the  same  decision regarding  a  particular          person."   Id. at 242.   As the trial  court in this  case noted,                     ___          "[p]ut another way,  the Court  held that it  was an  affirmative          defense  to a  charge of  unlawful intentional  discrimination to          show that the employer would have made the same decision even  in          the absence of an unlawful motive."  Memorandum and Order, at 3.                    Although Price  Waterhouse was  a gender case  under 42                             _________________          U.S.C.    2000e-2, the  Supreme Court  stated  that its  analysis          extended  to the  other unlawful  employment practices  listed in          section  2000e-2(a),  namely,  "discrimination  based   on  race,          religion, or national origin."  Id. at 244 n.9.  Subsequent cases                                          ___          have  extended the Price Waterhouse analysis to a series of other                             ________________          discrimination  contexts,  including  retaliation  claims.    See                                                                        ___          Cosgrove v. Sears, Roebuck & Co.,  9 F.3d 1033, 1039-41 (2d  Cir.          ________    ____________________          1993)  (analyzing   Title  VII  retaliation  claim   under  Price                                                                      _____          Waterhouse); Griffiths  v.  CIGNA Corp.,  988 F.2d  457, 468  (3d          __________   _________      ___________          Cir.)  (noting  that Price  Waterhouse  applies  to mixed  motive                               _________________          retaliation claims), cert. denied, 510 U.S. 865 (1993), overruled                               ____________                       _________          on other grounds, Miller v. CIGNA Corp., 47 F.3d 586, 596 n.8 (3d          ________________  ______    ___________                                         -4-          Cir.  1995); Kenworthy  v. Conoco, Inc.,  979 F.2d  1462, 1470-71                       _________     ____________          (10th  Cir.  1992)  (applying   Price  Waterhouse  to  Title  VII                                          _________________          retaliation  claim).   Indeed,  at least  one court  has analyzed          retaliation claims  in terms of Price  Waterhouse even subsequent                                          _________________          to the passage of the  1991 Act.  See Veprinsky v.  Fluor Daniel,                                            ___ _________     _____________          Inc., 87  F.3d 881, 893  (7th Cir. 1996).   However,  neither the          ____          Supreme Court nor  this Circuit  has held  that Price  Waterhouse                                                          _________________          applies to retaliation cases.                    However, Congress partially overruled  Price Waterhouse                                                           ________________          in the 1991  Act by allowing a  finding of liability  and limited          relief to plaintiffs in mixed motive cases.   See Landgraf v. USI                                                        ___ ________    ___          Film Prods.,  511 U.S. 244,  __, 114 S.  Ct.  1483,  1489 (1994).          ___________          First, section 107(a) of that Act, codified at 42 U.S.C.   2000e-          2(m), determines that an employment practice is  unlawful even if          there are  legitimate, as  well as illegitimate,  motivations for          it.2   Next, section  107(b) of  the Act,  codified at  42 U.S.C.            2000e-5(g)(2)(B), establishes that  if the  plaintiff proves  a          violation of section 107(a),  but the defendant demonstrates that          it  "would have  taken  the same  action in  the  absence of  the                                        ____________________          2  Section 107(a) reads:                       Except  as  otherwise  provided  in  this                      subchapter,   an    unlawful   employment                      practice   is    established   when   the                      complaining party demonstrates that race,                      color, religion, sex, or  national origin                      was   a   motivating   factor   for   any                      employment  practice,  even though  other                      factors also motivated the practice.          42 U.S.C.   2000e-2(m).                                         -5-          impermissible  motivating  factor,"  id.,  the  court  may  grant                                               ___          declaratory  and injunctive  relief as  well as  attorney's fees,          although  it cannot grant other damages,  such as monetary relief          or  reinstatement.3  Thus, where  Price Waterhouse would not have                                            ________________          held there  was no liability  and so  would not have  allowed any          damages, the 1991 Act enables an employee in at  least some mixed          motive cases to receive certain limited relief.                             2.  Statutory Interpretation                             2.  Statutory Interpretation                                 ________________________                    Tanca  argues   that  the  new  mixed   motive  damages          provision  applies  to  all  forms of  employment  discrimination          cases, including his  own retaliation claim, and  we should allow          him  the liability finding and remedies  under section 107(b) the          statute  permits.   We  are accordingly  faced  with an  issue of                                        ____________________          3  Section 107(b) states, in relevant part, that                    [o]n a claim in  which an individual proves a                    violation  under  section 2000e-2(m)  of this                    title and a  respondent demonstrates that the                    respondent  would have taken  the same action                    in   the   absence   of   the   impermissible                    motivating factor, the court --                         (i)  may grant  declaratory relief,                         injunctive   relief    (except   as                         provided   in  clause   (ii)),  and                         attorney's    fees    and     costs                         demonstrated    to   be    directly                         attributable only to the pursuit of                         a claim under section 2000e-2(m) of                         this title; and                         (ii)  shall  not  award damages  or                         issue   an   order  requiring   any                         admission,  reinstatement,  hiring,                         promotion, or payment, described in                         subparagraph (A).          42 U.S.C.   2000e-5(g)(2)(B).                                         -6-          statutory  interpretation:   do  the mixed  motive provisions  of          section  107(b) extend  to Title  VII retaliation  claims brought          under 42 U.S.C.   2000e-3?                    As  always,  we  begin  our  analysis  with  the  plain          language  of the statute.   See, e.g., United  States v. Ram rez-                                      ___  ____  ______________    ________          Ferrer, 82  F.3d 1131,  1136 (1st  Cir. 1996).   By doing  so, we          ______          immediately  encounter  Tanca's  fundamental   problem:    as   a          retaliation  claim,  his suit was brought under section 2000e-3,4          and  although  section   107(b)  specifically  addresses  section          107(a),  it makes no mention of section 2000e-3.  Indeed, section          107(b) plainly states  that it applies  to "a  claim in which  an          individual  proves  a  violation  under     2000e-2(m) [107(a)]."          Section 107(a),  in turn, specifies that  "an unlawful employment          practice is established when  the complaining party  demonstrates          that  race, color,  religion,  sex,  or  national  origin  was  a          motivating factor."5  There is no reference to section 2000e-3 or                                        ____________________          4   That section,  which codifies section  704 of the  1964 Civil          Rights  Act, makes  it  an unlawful  employment  practice for  an          employer to discriminate against an employee                      because he has  opposed any practice made                      an unlawful employment  practice by  this                      subchapter,  or because  he  has  made  a                      charge,    testified,     assisted,    or                      participated   in   any   manner  in   an                      investigation,  proceeding,  or   hearing                      under this subchapter.          42 U.S.C.   2000e-3(a).          5   The  parties do  not make  an argument  on the  basis  of the          "[e]xcept as  otherwise provided in this  subchapter" language of          section 107(a), quoted in footnote 2,  supra.  We note that we do                                                 _____          not read the quoted  language as expanding the scope  of   2000e-          2(m) to  include retaliation  claims.   Indeed, such an  argument                                         -7-          retaliation claims in  either provision.   As the district  court          found,  "nothing in the 1991 Act would  appear to change any rule          with respect  to retaliation claims  which existed  prior to  its          enactment."   Memorandum and Order, at 8; cf. Sunshine Dev., Inc.                                                    ___ ___________________          v. FDIC, 33  F.3d 106,  116 (1st Cir.  1994) ("[A]  legislature's             ____          affirmative description of  certain powers or  exemptions implies          denial of nondescribed  powers or  exemptions.").   On its  face,          then,  the statute  seems to  express an  intent not  to preclude          application of  Price Waterhouse  in the context  of mixed-motive                          ________________          retaliation cases.   See Reiss v. Dalton,  845 F. Supp.  742, 744                               ___ _____    ______          (S.D.  Cal. 1993)  (rejecting  application of  section 107(b)  to          Title VII mixed motive retaliation claim as contrary to the plain          meaning of the statute).                    Tanca argues otherwise.   He maintains that reliance on          the plain  meaning of the statute would be inappropriate, because          the   "clear"  legislative  history  demonstrates  that  Congress          intended that  other employment statutes modeled  after Title VII          adopt its new mixed motive analysis.6  See Greenwood Trust Co. v.                                                 ___ ___________________                                        ____________________          "would require  us to assume  that Congress chose  a surprisingly          indirect  route  to  convey  an important  and  easily  expressed          message."  Landgraf, 511 U.S. at 262.                     ________          6   Tanca also seeks support  from section 3(4) of  the 1991 Act.          That  section states  that  one of  the  Act's purposes  was  "to          respond to recent decisions of the Supreme Court by expanding the          scope of  relevant  civil rights  statutes  in order  to  provide          adequate protection to victims of discrimination."  Although this          language lends  credence to the  premise that Congress  sought to          overturn  Price  Waterhouse  at  least   in  part,  it  does  not                    _________________          necessarily  follow that Congress  felt victims of discrimination          could only  be  "adequate[ly]  protect[ed]"  if a  new  rule  was          established  in relation  to retaliation  claims  as well  as the          enumerated discrimination claims.                                         -8-          Massachusetts, 971 F.2d 818, 825 (1st Cir. 1992) ("[A] court must          _____________          always hesitate to construe words in a statute according to their          apparent  meaning if to do so  would defeat Congress's discovered          intendment."), cert. denied, 506 U.S. 1052 (1993).                            ____________                    First, he  argues that,  because we "must  presume that          Congress  knows   of   prior   judicial   or   executive   branch          interpretations  of a  statute when it  . . .  amends a statute,"          Ram rez-Ferrer,  82 F.3d at  1137, we must  presume that Congress          ______________          knew  of  the  judicial  practice  of  borrowing  the  order  and          allocations  of burdens  of proof developed  under Title  VII and          applying   them  to  retaliation   cases  and   other  employment          discrimination cases.   See, e.g.,  Griffiths, 988  F.2d at  468.                                  ___  ____   _________          Therefore,  the argument  goes,  Congress' failure  to amend  all          other employment discrimination statutes at the same time that it          amended section  2000e-2 can mean that Congress presumed that the          courts would continue  to borrow  and apply  Title VII  concepts,          including  the  newly  minted  mixed  motive  damages  provision.          Indeed, there is some arguable support in the legislative history          for  his position.  The House Report from the Judiciary Committee          states that                       [t]he Committee  intends that . . . other                      laws   modeled   after   Title   VII   be                      interpreted  consistently   in  a  manner                      consistent with  Title VII as  amended by                      this Act.  For example,  disparate impact                      claims under the ADA should be treated in                      the same manner as under Title VII.            H.R. Rep. No. 40(II),  102d Cong., 1st Sess. 4  (1991), reprinted                                                                  _________          in 1991 U.S.C.C.A.N. 694, 697.          __                                         -9-                    Assuming arguendo that Congress  did intend the section          107  model to  apply  beyond Title  VII,  Tanca's argument  still          fails.  Simply  put, Tanca is not arguing that  we borrow a Title          VII  concept and use it to interpret another statute, such as the          ADA.   Rather, he wants us  to read one Title  VII provision into          another.   He  contends  that  Congress  wanted  us  to  do  such          borrowing, but it seems just as likely that because Congress knew          of  the judicial borrowing, in  order to avoid  such borrowing it          specified which particular aspects of Title VII would be affected          by  referencing  107(a)  in  section  107(b).    Tanca  cites  no          legislative history that suggests otherwise.                      This interpretation  gains additional support  from the          fact that "'[w]here Congress  includes particular language in one          section of  a statute but omits it in another section of the same          Act, it  is generally  presumed that Congress  acts intentionally          and  purposely   in  the  disparate  inclusion   or  exclusion.'"          Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United          ________    _____________                                  ______          States v.  Wong Kim  Bo,  472 F.2d  720,  722 (5th  Cir.  1972)).          ______     ____________          Section  102 of  the 1991  Act, codified  at 42  U.S.C.    1981a,          provides for compensatory and punitive damages and specifies that          its provisions  will apply to  complaining parties  who bring  an          action under section  2000e-3 -- the retaliation section at issue          here --  as well as  2000e-2.   42 U.S.C.    1981a(a)(1).   Thus,          because Congress addressed  the retaliation section elsewhere  in          the 1991 Act, but chose not to do so in section 107(a) or (b), it          would seem  that "where Congress intended  to address retaliation                                         -10-          violations, it knew how to do so and did so  expressly."7  Reiss,                                                                     _____          845 F. Supp. at 745. Second,  Tanca cites a  series of additional          passages from  the legislative  history in arguing  that Congress          intended  that no part of the prior Price Waterhouse mixed motive                                              ________________          analysis  should remain in  effect.  As  Tanca argues, statements          such  as the following could be  read to support the premise that          the 1991 Act  should be  read liberally as  regards mixed  motive          cases:                      If Title  VII's ban on  discrimination in                      employment is to  be meaningful,  victims                      of  proven discrimination must be able to                      obtain   relief,   and  perpetrators   of                      discrimination  must  be held  liable for                      their   actions.       Price   Waterhouse                                             __________________                      jeopardizes that fundamental principle.          H.R.  Rep. 40(I), 102d Cong.,  1st Sess. 47  (1991), reprinted in                                                               ____________          1991  U.S.C.C.A.N.   549,  585  (Education  and  Labor  Committee          Report).                      We need not enter into his argument in detail, however,          as  our review of this and  the other passages of the legislative          history on which Tanca seeks  to rely leads us to  the conclusion          that Congress'  intent remains unclear  regarding the application          of the 1991  Act to  Title VII mixed  motive retaliation  claims.          Indeed, such  claims are never  directly addressed  in the  cited                                        ____________________          7  Indeed, although section 107(b) does not reference retaliation          claims,  the already existing subsection immediately preceding it          in  Title VII  does.   See 42  U.S.C.    2000-e(5)(g)(2)(A).   As                                 ___          appellees  note,  the  inclusion  of retaliation  claims  in  one          subsection, juxtaposed with their omission in  the next, tends to          support the premise that  Congress' omission of the claim  in the          latter provision was  intentional.   See Reiss, 845  F. Supp.  at                                               ___ _____          745.                                         -11-          legislative history.   "'Absent  a clearly  expressed legislative          intention  to the  contrary [the]  language [of  a statute]  must          ordinarily be regarded as conclusive.'"  Kaiser Aluminum  & Chem.                                                   ________________________          Corp. v.  Bonjorno, 494  U.S. 827,  835 (1990) (quoting  Consumer          _____     ________                                       ________          Prod.  Safety Comm'n  v. GTE  Sylvania, Inc.,  447 U.S.  102, 108          ____________________     ___________________          (1980)).    Therefore, as  the plain  meaning  of the  statute is          clear, and this  is not a statute whose  "meanings . . .  take on          different  colorations   when  read  in  their   legislative  and          historical  context,"  Greenwood Trust  Co., 971 F.2d  at 826, we                                 ____________________          conclude that the mixed  motive provisions of section 107  of the          1991 Act do  not apply  to Title VII  retaliation claims  brought          under section 2000e-3.                      We are conscious  that our decision  in this case  goes          against those of  some federal  courts that have  looked at  this          issue.   However, examination of the cases Tanca cites as support          for his argument reveals  that, although all of them  would apply          section  107(b) to Title VII mixed motive retaliation claims, and          some of  them examined  the legislative  history in  drawing that          conclusion,  none of  them  weighed  the  plain language  of  the          statute  prior to borrowing the provision.  See Beinlich v. Curry                                                      ___ ________    _____          Dev., Inc., 54 F.3d 772 (table), No. 94-1465, 1995 WL 311577 (4th          __________          Cir.  May 22,  1995) (unpublished  disposition) (citing  sections          107(b)  and 2000e-3(a),  without  applying  them, in  retaliation          claim); Woodson, 898 F.  Supp. at 304-06 (pretext case);  Hall v.                  _______                                           ____          City of Brawley, 887 F. Supp. 1333, 1345 (S.D. Cal. 1995); Jones-          _______________                                            ______          Bell v.  Illinois Dept. of Employment Sec., No. 95 C 948, 1995 WL          ____     _________________________________                                         -12-          692321, at *6-*7 (N.D.  Ill. Nov. 20,  1995).8  Indeed, the  only          case  we  found  that  examined  the  statute  under  traditional          statutory interpretation  methods supports our  conclusions here.          See Reiss, 845 F. Supp. at 744-45.  Nothing in the cited cases or          ___ _____          others we have examined leads us  to question our conclusion.  We          also believe that the  Price Waterhouse rule does apply  to mixed                                 ________________                                        ____________________          8 The  parties cite  one case  from this circuit.   In  Selgas v.                                                                  ______          American  Airlines, Inc.,  858 F.  Supp.  316 (D.P.R.  1994), the          ________________________          district court was faced with a claim that  the jury's answers to          special interrogatories  regarding Title VII retaliation  and sex          discrimination claims were contradictory.  The employer, American          Airlines,  argued that  the jury found  that American  would have          made the  same employment decisions  even if Selgas'  gender were          not taken into account,  and so American had an  absolute defense          under  Price   Waterhouse.     The  district  court   found  that                 __________________          supplemental   questions   put   to   the   jury   remedied   any          inconsistencies in  the verdict,  but noted in  passing that  the          1991 Act  had overruled Price Waterhouse.   Id. at 318  n.2.  The                                  ________________    ___          district court cited Robinson  v. Southeastern Pa. Transp. Auth.,                               ________     ______________________________          982 F.2d 892  (3d Cir.  1993), as support  for that  proposition.          Examination of Robinson shows that the court there cited the 1991                         ________          Act  only for the proposition that "Title VII contemplates that a          corporation may  be liable  for dismissing  an employee  when its          motives  contain   a  mixture  of  legitimate   and  illegitimate          reasons."   Id.  at 899  &  n.8.   As the  underlying dispute  in                      ___          Robinson was tried prior  to the 1991 Act's enactment,  the court          ________          did not apply it to the dispute.              A panel of this  court affirmed in part  and vacated in  part          the  district  court's decision.    See  Kerr-Selgas v.  American                                              ___  ___________     ________          Airlines,  Inc., 69 F.3d  1205 (1st Cir. 1995).   The panel found          _______________          that American had no alternative just cause to fire Selgas.  Thus          neither Price Waterhouse nor the 1991 Act was implicated.  Id. at                  ________________                                   ___          1210-11.   In  outlining  American's failed  argument, the  panel          cited Griffiths v.  CIGNA Corp. for the proposition  that section                _________     ___________          107(b)'s  affirmative  defense  would apply  to  the  retaliation          claim.   Id. at 1210; see  Griffiths, 988 F.2d at  472.  However,                   ___          ___  _________          the court  in  Griffiths neither  applied section  107(b) to  the                         _________          plaintiff's  retaliation  claim  nor  engaged  in  any  statutory          interpretation  of its  applicability, as  that case  was brought          prior  to the application of  the 1991 Act.   In the end, we find          that, although there is  some suggestion in Kerr-Selgas  that the                                                      ___________          1991  Act should  apply to  Tanca's claim,  neither of  the cases          relied on for that  proposition, nor Kerr-Selgas itself, supplies                                               ___________          us with any reason to doubt the result reached here today.                                           -13-          motive retaliation  claims.  Accordingly, we  weigh the remainder          of Tanca's arguments under Price Waterhouse.                                     ________________                              B.  The Jury Instructions                              B.  The Jury Instructions                                  _____________________                    Tanca's next argument centers on the jury instructions.          Question  four  on  the jury  verdict  form  asked:   "Would  the          employer  have offered Mr. Tanca  a promotion in  Hyannis were it          not  for plaintiff's protected opposition?"  The jury sent a note          to the judge regarding question four as follows:                      Does the word "a"  refer to any promotion                      in  the Hyannis office or the specific UI                      position for which Mr. Tanca had applied?          The court replied that                       [t]he words  "a promotion" in  Question 4                      refers [sic] to the specific  UI position                      for which Mr. Tanca had applied.          The jury then returned  a verdict answering question four  in the          negative,  finding that DET would  not have offered  Tanca the UI          position in Hyannis, even without the illegitimate motivations.                    Tanca  argues now that the UI position was not the only          Hyannis  position that the jury should have considered.  In fact,          he points out, after naming the new Hyannis UI, DET created a new          manager position below the  UI in Hyannis, which would  also have          been a  promotion for  Tanca.  This  position was not  offered to          Tanca.    Based on  this, Tanca  claims DET  did not  satisfy its          burden of proof  under Price Waterhouse in that  it did not prove                                 ________________          that it would  have come to the same decision even  if it had not          taken the unlawful  motive into account.   See Price  Waterhouse,                                                     ___ _________________          490 U.S. at 244.   The pertinent decision here,  he contends, was                                         -14-          DET's choice to offer him a position in New Bedford,  and not one          in Hyannis.  While the jury found that DET would not have offered          him the Hyannis  UI position, it did not find  that DET would not          have  offered him the new  manager position either, he maintains,          because it was  not asked.   Therefore, he  continues, the  court          should  have responded to the jury's inquiry by telling them that          question four referred  to any promotion  in the Hyannis  office.                                     ___          Since it  did not, he concludes, DET has not met its burden under          Price Waterhouse.  Tanca  acknowledges that he did not  object to          ________________          the district court's response,  but contends that it was  not his          duty to do so:  as DET had to  prove each element of its defense,          he argues, it should have objected.                    Our  review of  the record  below, however,  reveals no          mention  of  the  new  manager  position  in  Tanca's  Complaint,          Opposition to Defendants' Motion  for Summary Judgment, Pre-trial          Memorandum, Trial Brief, Motion for a New Trial, or Opposition to          Defendants'  Motion for Judgment.  Nor did Tanca object to either          the  jury  instructions  or  the judge's  answer  to  the  jury's          question  on these grounds.  Accordingly, we find that by failing          to squarely raise any question regarding the new manager position          before  the district court, Tanca has  waived the opportunity for          argument  on that  point here.   See  Timberland Design  v. First                                           ___  _________________     _____          Serv. Bank  for Sav., 932  F.2d 46,  51 (1st Cir.  1991) ("It  is          ____________________          clearly  established that  arguments not  raised at  the district          court  level  will  not  be  considered on  appeal.");  see  also                                                                  _________          Kavanaugh v. Greenlee Tool  Co., 944 F.2d 7, 10  (1st Cir. 1991);          _________    __________________                                         -15-          Nimrod  v. Sylvester, 369  F.2d 870, 872  (1st Cir. 1966).   Even          ______     _________          were we not to  find waiver, Tanca's position would fail.  Simply          put, we  cannot  see how  the trial  court could  have felt  that          anything  besides the UI position  was at issue.9    The district          court,  therefore,  did  not err  in  its  answer  to the  jury's          question, as  the pertinent  issue was  not  whether any  Hyannis                                                               ___          position  would  have  been offered  Tanca,  but  whether the  UI          position would have been offered.                                      CONCLUSION                                      CONCLUSION                    In view of the above the judgment of the district court          is affirmed.               ________                                        ____________________          9   For example, in  his Pre-Trial Memorandum,  Tanca listed only          two contested issues of fact:                      A.   The  reasons why  Mr. Tanca  was not                      awarded the position of  U. I. Manager in                      Hyannis, Massachusetts.                      B.  Mr. Tanca's damages.          See Correa v.  Hospital San  Francisco, 69 F.3d  1184, 1195  (1st          ___ ______     _______________________          Cir.  1995) (noting that failure  to raise an  issue in the final          pretrial order generally constitutes waiver).                                         -16-
