Tang v. Citizens Bank ( 2018 )


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  •                   Not for Publication in West's Federal Reporter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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