Dias v. Verizon New England, Inc. , 566 F. App'x 1 ( 2014 )

Not for Publication in West's Federal Reporter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.
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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
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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
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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.").
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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)?
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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,"
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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
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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
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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
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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
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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.
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