Tang v. Citizens Bank ( 2018 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 17-1365, 17-1523
XIAOYAN TANG,
Plaintiff, Appellant,
v.
CITIZENS BANK, a/k/a Citizens Bank, N.A., a/k/a Citizens, N.A.,
a/k/a Citizens, a/k/a RBS Citizens, N.A.; RBS CITIZENS, N.A.;
THE ROYAL BANK OF SCOTLAND GROUP, a/k/a RBS; DAVID NACKLEY,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,
and Kayatta, Circuit Judge.
Robert Herrick, with whom Nicholson Herrick LLP was on
brief, for appellant.
Mark W. Batten, with whom Samantha L. Regenbogen, Rebecca
J. Sivitz, and Proskauer Rose LLP were on brief, for appellees.
July 11, 2018

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. This is an appeal by the
plaintiff, Xiaoyan Tang, from an adverse judgment in her action
for violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., brought against Citizens Bank, N.A. and
others (collectively "Citizens"). She claims error in a jury
instruction and in the denial of a new trial to supplant a
verdict for defendants said to be against the clear weight of
credible evidence. We affirm.
This litigation, begun by Tang acting pro se, is now
in its fifth year and has been before us before, when we vacated
summary judgment for the defendants. See Tang v. Citizens Bank,
N.A., 821 F.3d 206 (1st Cir. 2016). Our opinion in the earlier
appeal contains an exhaustive account of the record on summary
judgment as viewed most favorably to Tang, and we will make
reference to the subsequent trial record when we reach the issue
of evidentiary weight. But at this point, a terse account of
facts with record support will suffice to explain the
circumstances in which the case arose and returned to this
court.
Tang emigrated from China and was hired to work as a
portfolio manager in the Commercial Real Estate section of
Citizens' Boston branch. Her superiors there were dissatisfied
with her work in several aspects including thoroughness,
timeliness and relations with clients. She chose to seek a
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transfer to the bank's Technology Banking group, a move that was
stymied by the unsatisfactory formal rating given to her job
performance until that rating was raised a notch to render her
passage to the new group possible under the bank's personnel
rules.
She was interviewed by the leader of the Technology
Banking Group, defendant David Nackley. He approved the
transfer after interviewing Tang over lunch, where the discourse
ranged into personal matters, as it did in subsequent
conversations. At various times Nackley spoke, for example, of
Thai au pairs working in his home, their acquisition of English
proficiency and, according to Tang, their taste in bathing
suits. He pressed Tang to disclose the name of her boyfriend in
order to resolve a potential conflict of interest, invited her
to visit Citizens' Connecticut headquarters and on at least one
occasion engaged in tasteless reference to the body ("ass").1 In
the meantime Tang received some compliments on her job
performance, although the dissatisfaction persisted in ratings
comparable to those in her earlier job, calling for improvement.
At one point she complained to the bank's Human Resources
department about the sexual tone of Nackley's remarks, though
1
The parties dispute the events in question, including the
nature of this conversation, with Tang testifying to
significantly harassing behavior by Nackley.
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the reviewer who investigated found the complaint unfounded.
When her performance failed to improve, she was let go.
Tang's response was to bring this Title VII case
(along with state causes of action no longer pending), which her
subsequently acquired counsel litigated before the jury as two
separate claims. The first was a charge of sexual harassment
(on both a quid pro quo and hostile work environment theory);
the second, one of retaliation for the complaint to the
personnel department about Nackley.
Quid pro quo sexual harassment claims require proof of
these elements: (1) "an employee or supervisor uses his or her
superior position to extract sexual favors from a subordinate
employee," and (2) "if denied those favors, retaliates by taking
action adversely affecting the subordinate's employment."
Valentín-Almeyda v. Municipality Of Aguadilla, 447 F.3d 85, 94
(1st Cir. 2006) (internal quotation marks omitted).
At the close of the evidence, however, the court's
charge did not mention quid pro quo. Instead, the oral jury
instruction was in these words:
She has to prove . . . an objective test,
which means that a reasonable person in Ms.
Tang's position doing the job she was doing
with the job requirements, whatever they
were, and the structure that Citizens Bank
had with the supervisors and associates and
the like that they had, . . . if subjected
to this interaction on these occasions with
Mr. Nackley, that person would have
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understood that he was soliciting a sexual
relationship with her, that the objective
person would have understood that he was
propositioning for sexual relations. . . .
I will tell you, if you believe her
testimony in its entirety to include, as she
testified to gestures and the like, if you
believe that, you could find that was sexual
harassment within the law.
Now, on that first theory, if she was
subjected to sexual harassment, that
constitutes a hostile work environment and
she is entitled to damages. J.A. 1277.
At the close of the charge, Tang's counsel objected
that the court had failed to give any quid pro quo instruction
at all. The judge replied that he had covered the subject in a
way favorable to Tang by instructing that if the jury found that
a reasonable person would have understood Nackley's behavior as
amounting to sexually propositioning Tang, the jury could on the
basis of that finding alone return a verdict for Tang. Tang's
counsel responded, "Okay, fair enough," and made no further
objection on the point.
We think it is clear that counsel's response to the
judge's reply was a withdrawal of the objection. Even if a
withdrawal must be explicit, see United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002), this one was. The point is to
make certain that while the jury is still there and open to
instruction the judge is made to understand that he is no longer
being requested to correct, clarify or supplement the
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instruction he had given. We fail to see how any judge could
have heard, "Okay, fair enough," as anything but such a
withdrawal.
It follows that when the jury retired to deliberate,
there was no objection on the record, a circumstance in which
this court has made it clear that a subsequently dissatisfied
party has bypassed its opportunity to object under Federal Rule
of Civil Procedure 51(c)(2)(B), and has thus waived the
objection. See Ray v. Ropes & Gray LLP, 799 F.3d 99, 112 (1st
Cir. 2015).
Tang's second trial theory, retaliation, required her
to show that she took protected action that was the cause of
subsequent adverse action against her. See Collazo v. Bristol-
Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). The
protected action was identified as her complaint to Human
Resources that Nackley had made unlawful sexual advances, and
the adverse action was the bank's firing her. The bank did not
contest either element, leaving for decision only the question
whether she was fired because of making the complaint. Tang
argues that her motion to vacate the defendant's verdict on the
retaliation claim should have been granted owing to that
verdict's being against the clear weight of the evidence of
retaliatory causation linking her complaint and the bank's
action in dismissing her.
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Tang's burden to prove that is a very heavy one, for
she must show that the evidence points only to the conclusion
that she had proven the causal connection so clearly that it
would be a miscarriage of justice to allow the verdict to stand.
See Goulet v. New Penn Motor Exp., Inc., 512 F.3d 34, 44 (1st
Cir. 2008). In weighing the evidence subject to this standard,
moreover, the facts must be viewed in the light most favorable
to Citizens, see Feliciano-Hill v. Principi, 439 F.3d 18, 21
(1st Cir. 2006), and the trial judge's conclusion that she
failed to make that required showing must be given the deference
accorded in review for abuse of discretion, see Goulet, 512 F.3d
at 44.
Tang does not come close to surmounting these hurdles,
although this is not to say that the trial record was entirely
one-sided against her. As already mentioned, evidence in her
favor included her own testimony that Nackley was clearly
indiscreet in conversations with her, to the point of vulgarity
on at least one occasion. Although Nackley provided some
mitigating explanation, there is no serious question that some
of Nackley's language was untoward. Even more obviously
favorable to Tang's case on causation were complimentary
evaluations of her efforts to improve her level of work, as
contained in some performance reviews.
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Standing against her claim that her employment was not
terminated because of inadequate performance on the job,
however, there are two significant bodies of evidence. The
first shows that the criticism for unacceptable performance
began in the Real Estate group before Nackley had any
involvement with her employment. Indeed, her unsatisfactory
rating in formal evaluations would have made her requested
transfer to Technology Banking impossible under the bank's rules
if the rating had not been replaced with a more favorable one,
for the apparent purpose of moving Real Estate's problem to
Technology Banking.
The second line of evidence in favor of the verdict
shows a consistency in the notations of her deficiencies
throughout her time at Citizens, as attested by supervisory
employees other than Nackley, before as well as after his
involvement. In the first stage of her employment (with the
Real Estate group) she was observed to be late in completing
assignments, to be deficient in analyzing facts, to have
difficulty communicating and to become emotionally distraught
over criticism of her work. Her later shortcomings at
Technology Banking included, but were not limited to,
mathematical inaccuracy, shallow analysis, untimely completion,
poor personal communications and emotional outbursts. Although
it is true that the later observations were by people who might
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have been influenced by Nackley, there is no evidence that any
of them skewed judgment to please him and no reason to question
the jury's capacity to evaluate the reliability and credibility
of the sources of the evidence put before it.
In Tang's first appeal, after our review of the
evidence in the summary judgment record, we noted that a jury
could find that she was fired for inadequate performance. See
Tang, 821 F. 3d at 222. Suffice it to say that the same is true
here, when the trial evidence must be regarded most favorably to
Citizens. No one could seriously conclude that it was not
possible for the jury to find that retaliation for Tang's
complaint about Nackley was not the but-for cause for letting
her go, and no one could find on the part of the trial judge an
abuse of discretion in denying the motion to vacate the verdict
and order a new trial.
Affirmed.
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