Tomasello, Louis v. Rubin, Robert ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 1998 Decided February 23, 1999
No. 97-5233
Louis Tomasello, Jr.,
Appellant
v.
Robert E. Rubin, Secretary,
Department of the Treasury,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 93cv01326)
John F. Karl, Jr. argued the cause for the appellant. John
W. Davis entered an appearance for the appellant.
Rudolph Contreras, Assistant United States Attorney, ar-
gued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief for the appellee.
Before: Wald, Williams and Henderson, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Appellant
Louis Tomasello, formerly employed by the Alcohol Tobacco
and Firearms Bureau (ATF) of the United States Depart-
ment of the Treasury (Treasury), sued Treasury, making
numerous claims arising from ATF's alleged violations of the
Privacy Act, 5 U.S.C. s 552a, the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. s 633, and Title VII of
the Civil Rights Act, 42 U.S.C. ss 2000e et seq., during his
long-time employment as an ATF agent. Using an advisory
jury, the district court conducted a bench trial and at its
conclusion awarded Tomasello $2000 under the Privacy Act,
dismissed the ADEA retaliation claims based on sovereign
immunity, granted judgment as a matter of law to Treasury
on the Title VII hostile work environment and constructive
discharge claims and rejected the advisory jury's verdict in
Tomasello's favor on the Title VII claims arising before
November 1991. With respect to the post-November 1991
Title VII claims, the jury heard and rejected them. Tomasel-
lo raises several challenges on appeal: (1) he is entitled under
the Privacy Act to $1,000 for each violation; (2) damages
under the Privacy Act are not limited to pecuniary losses; (3)
the district court improperly dismissed his ADEA retaliation
claims based on sovereign immunity; (4) the pre-November
1991 discrimination claims should have been tried by the jury
as part of a continuing violation; (5) the hostile work environ-
ment and constructive discharge claims should have been
submitted to the jury; and (6) in rejecting the advisory jury's
verdict on Tomasello's pre-November 1991 Title VII retalia-
tion claims, the district court erred in finding no retaliation
based on Tomasello's failure to establish a causal connection
between his discrimination complaints and his non-
promotions. Although we do not reach the issues of the
availability of non-pecuniary damages under the Privacy Act
and whether the government has waived its sovereign immu-
nity from an ADEA retaliation claim, we affirm the district
court in all other respects.
I.
Tomasello, a Sicilian-American, joined ATF in March 1971.
In 1980 ATF posted Tomasello to Boston as a senior opera-
tions officer. In 1983 ATF named Terence McArdle, an
Irish-American, its special agent in charge (SAC) in Boston.
There followed a series of events that Tomasello claims
demonstrated discrimination by Irish-American ATF person-
nel against Italian-American ATF personnel.
In 1984 Tomasello was investigated for allegedly associat-
ing with members of the Mafia. That year, Tomasello al-
leged, McArdle remarked to him "Why can't I say 'guinea' in
front of an Italian?," JA 306--a remark McArdle denied
making.
In 1985 McArdle appointed Tomasello as supervisor of
Group B, a group of criminal investigators, after becoming
disappointed with the performance of William Pickett, an
Irish-American, as Group B supervisor. Tomasello claimed
that Group B's morale and performance improved under his
leadership but that McArdle subsequently undercut his per-
formance by replacing experienced agents with inexperienced
ones.
In May 1987 McArdle selected John Dowd, an Irish-
American, over Tomasello as a supervisory criminal investiga-
tor although, Tomasello claimed, he was better qualified than
Dowd and McArdle had once referred to Dowd as "the worst
supervisor in New England." JA 709.
In 1988, according to Tomasello, he approached McArdle
and complained about what he thought were McArdle's inap-
propriate and discriminatory remarks. A few months later
Tomasello's annual performance evaluation, completed by as-
sistant SAC (ASAC) Darrell Dyer, included an overall rating
of "Fully Successful"--two levels below the "Outstanding"
rating Tomasello had received the year before but neverthe-
less consistent with the majority of his annual evaluations.
In October 1988 McArdle reprimanded Tomasello and oth-
er agents for playing golf instead of attending a mandatory
meeting during a two-day ATF seminar. The incident was
included in Tomasello's subsequent performance appraisal
because Tomasello was the only supervisor to have missed the
mandatory meeting.
In February 1989 Tomasello met with McArdle to discuss
Tomasello's complaints of discrimination. Shortly thereafter,
ASAC Dyer sent Tomasello a letter requesting additional
information about an emergency expense fund expenditure
Tomasello had approved. ATF headquarters had requested
the information from Dyer. Tomasello admitted the expendi-
ture form was incorrect but attributed the error to misleading
instructions. Dyer also questioned Tomasello's request for
funds for a Lincoln Town Car.
In May 1989 Tomasello wrote a "position paper" outlining
what he believed to be McArdle's discriminatory treatment of
him. He gave the paper to McArdle and eventually it went to
ATF's chief counsel's office in Washington, D.C. Tomasello
claims that subsequently McArdle began a campaign to re-
cruit Italian-Americans in an effort to blunt his complaints of
discrimination. According to Tomasello, in November of that
year McArdle recruited Peter Gagliardi, an Italian-American,
to take over Project Achilles (a group Tomasello had helped
establish to work with local law enforcement in apprehending
armed career criminals). In November, McArdle appointed
Gagliardi to that position. When Gagliardi was promoted and
relocated to Washington, D.C. six months later,1 Frank Hart,
who had run a similar program in Chicago and had already
been slated to fill a different position in Boston, transferred
laterally into the vacant position. Tomasello had by then
been transferred to the Concord, New Hampshire office
(allegedly to prevent him from receiving extra locality pay
available to Boston agents).2 Because, according to Tomasel-
lo, announcement of the opening was withheld from the
Concord office, he was barely able to meet the application
deadline. When Hart was selected for the position, Tomasel-
__________
1 By the time of trial, Gagliardi was fourth in command at ATF.
2 Tomasello claimed that he had objected to being moved to
Concord although he had more than once expressed a desire to
transfer there.
lo applied for the position Hart had been intended to fill but
instead Michael Catlett, an Italian-American, was chosen.
On November 26, 1990 Tomasello filed the first of eight
complaints with ATF's equal employment opportunity officer.
Tomasello contends that this action triggered a series of
retaliatory acts beginning with McArdle's taunt "[W]hatever
you give me, I'll give you back double."
In early 1991 while Tomasello was conducting training in
Glynco, Georgia, he asked ASAC Dyer about reimbursement
for additional return trips to Boston. Before faxing his
response, Dyer telephoned the Georgia training facility and
told the individual he spoke with that he was sending a fax
and that it contained confidential information. Although
Tomasello presented no evidence that anyone other than the
person to whom Dyer spoke saw the fax (which mentioned his
EEO complaint), he alleged that once the fax arrived, the
"atmosphere changed." JA 558-59. This incident formed
the basis of Tomasello's first Privacy Act claim.
On June 26, 1991 ASAC Dyer reprimanded Tomasello after
he had requested to attend a two-day state law enforcement
conference to improve relations between ATF and local law
enforcement but failed to show up. The night before the
conference Tomasello, who was the only ATF agent scheduled
to attend, had a "flare-up" of a chronic illness. Tomasello
missed the second day because he could not find transporta-
tion. He failed, however, to inform his superiors that he
could not attend either day.
In November 1992 the CBS "60 Minutes" television pro-
gram prepared a segment on alleged discrimination at ATF
during which both ATF Director Stephen Higgins and Toma-
sello were separately interviewed. Higgins then notified CBS
by letter that the interviewed agent, whom he did not identify
in his letter, had filed a discrimination complaint against
ATF. When the interview was televised, Tomasello was
referred to by name as having filed a discrimination com-
plaint. Higgins later faxed the letter he had sent to CBS to
4,500 ATF agents nation-wide. This incident formed the
basis of Tomasello's second Privacy Act claim.
On January 27, 1993 Tomasello received a memorandum
from McArdle regarding his improper disposal of a handgun.
Tomasello claimed that the disposal method he used was
"clearly authorized." McArdle disagreed, claiming that
Tomasello should have returned it to local authorities because
ATF had not sought forfeiture of the gun.
In October 1993 Tomasello requested reimbursement for
travel expenses to a retirement conference held near his
"primary residence." He claimed travel expenses from his
"secondary residence." ASAC Thomas Lambert, Tomasello's
supervisor in Concord, initially questioned the expenses but,
after consultation with ATF's chief counsel's office, changed
his position.
On December 28, 1993 Nealy Earl, an ATF EEO counselor
in Hartford, Connecticut sent a copy of Tomasello's pre-
complaint counseling form to ATF's EEO Complaint Center
in Chicago and to John McGuire, ATF's EEO Regional
Manager in New York. In early January 1994 Earl request-
ed that McGuire fax him a copy because he no longer had his
copy of the form and the Chicago office had not received it.
While faxing the document, McGuire noticed a "paper jam"
message on the fax machine and, assuming the document had
not been successfully sent, refaxed it. Earl, however, had
received the first transmission and left his office for the day.
In his absence, the second fax was received by his supervisor
who placed it in a sealed envelope and gave it to Earl later.
This incident provides the basis of Tomasello's third Privacy
Act claim.
According to Tomasello, eventually the conditions of his
employment became unbearable and he was forced to resign.
In February 1994 Tomasello notified ATF he was resigning to
take a position with the Environmental Protection Agency in
Boston. Tomasello then filed this action.
The district court treated Tomasello's third amended com-
plaint, his last, as alleging numerous Title VII and ADEA
discrimination and retaliation claims. Relevant to his appeal
are Tomasello's ADEA and Title VII retaliation claims with
respect to (1) the McArdle, Dyer and Lambert memoranda;
(2) the selection of Gagliardi and then Hart as Project Ac-
hilles supervisor; and (3) the selection of Catlett for arson
group supervisor. Tomasello also alleged that he was sub-
jected to a hostile work environment and constructively dis-
charged. Additionally, Tomasello alleged three Privacy Act
violations3 arising from: (1) the Glynco fax; (2) the Higgins
letter to CBS that was later sent to 4,500 ATF agents; and
(3) the McGuire fax to Early. The district court dismissed
the ADEA retaliation claims,4 concluding that the United
States had not waived its sovereign immunity. See Tomasel-
lo v. Rubin, 920 F. Supp. 4, 6 (D.D.C. 1996). Relying on
Langraf v. USI Film Prods., 511 U.S. 244 (1994), the lower
court also rejected Tomasello's demand for a jury trial on his
pre-November 1991 Title VII claims5 as part of a continuing
violation, concluding that a jury trial on those claims would
give them impermissibly retroactive treatment. It decided,
however, to convene an advisory jury as to the claims. See
920 F. Supp. at 7-8.
The case proceeded to trial with an advisory jury on the
pre-November 1991 Title VII and Privacy Act claims. After
hearing the evidence, the district court granted judgment to
__________
3 Originally Tomasello also alleged a Privacy Act violation involv-
ing a "blue ribbon panel" created after the "60 Minutes" program to
investigate ATF's record on discrimination. Tomasello alleged that
his records were illegally released to the panel. The district court
dismissed the claim, finding that Tomasello had failed to demon-
strate an "adverse effect." JA 127-28.
4 The district court granted summary judgment on Tomasello's
ADEA discrimination claims. The Gagliardi promotion claim was
rejected because Gagliardi was " 'insignificantly younger' " than
Tomasello. JA 189 (quoting Celotex v. Catrett, 477 U.S. 317, 325
(1986)). The district court also rejected claims arising from the
Catlett transfer and a later transfer between Hart and Terence
Berry, who had replaced Catlett as arson group supervisor, because
Tomasello presented no evidence that he had been "considered and
rejected" for the positions. JA 200 n.1.
5 Tomasello pursued several other Title VII claims in district
court but abandoned them on appeal. See JA 63-64; JA 65; JA
68-69; JA 71-72; JA 73-74; JA 123-124.
ATF on Tomasello's hostile work environment and construc-
tive discharge claims, concluding that the alleged conduct was
not sufficiently severe or pervasive to affect Tomasello's
conditions of employment. The jury in its advisory capacity
found that ATF did not discriminate against Tomasello on the
basis of national origin but that it did retaliate in violation of
Title VII by promoting Gagliardi and Hart over him and
recommended a $5,000 damages award. Also in its advisory
capacity, the jury found three Privacy Act violations based on
the Glynco fax, the Higgins letter and the McGuire fax. The
jury recommended a $5000 damages award for these viola-
tions as well. On the post-November 1991 Title VII claims
(which were tried to the jury), it found that ATF neither
discriminated nor retaliated in sending any of the documents.
The district court rejected the advisory verdicts in favor of
Tomasello on the Title VII retaliation claims and all of the
Privacy Act claims save the one arising from the Higgins
letter. Accordingly, it reduced the Privacy Act award from
$5,000 to $2,000 and eliminated the Title VII award. See JA
1624. The district court also denied Tomasello's motion to
reconsider its judgment as a matter of law on the hostile
work environment and constructive discharge claims. See JA
1615. Tomasello then appealed (1) the district court's order
denying a jury trial on the pre-November 1991 Title VII
claims and dismissing the ADEA retaliation claims as well as
its subsequent denial of Tomasello's motion to reconsider; (2)
the district court's judgment as a matter of law on the hostile
work environment/constructive discharge claims and its sub-
sequent denial of Tomasello's motion to reconsider; (3) the
district court's rejection of the advisory jury verdicts on
Tomasello's pre-November 1991 retaliation claims; and (4)
the district court's reduction of the advisory $5,000 Privacy
Act damages award and its refusal to award $1,000 per copy
of the Higgins letter sent to the 4,500 ATF agents.
II.
Tomasello raises a number of issues on appeal. With
respect to his Privacy Act claim arising out of Higgins's letter
to CBS, he contends that damages under the Privacy Act are
not limited to pecuniary loss and that he is entitled to the
statutory $1,000 penalty for each of the approximately 4,500
copies of the Higgins letter faxed to ATF agents nation-wide.
Regarding his ADEA retaliation claims, he claims their dis-
missal on sovereign immunity grounds was improper. He
further claims that the district court erred in not submitting
the pre-November 21, 1991 Title VII discrimination claims to
the jury as part of a continuing violation and in dismissing the
hostile work environment and constructive discharge claims.
Finally Tomasello claims that the district court erred in
concluding that he had failed to causally connect his protected
activity with ATF's allegedly retaliatory action. We address
the claims seriatim.
A. Privacy Act
Noting that the Privacy Act provides that "no agency shall
disclose any record which is contained in a system of records
by any means of communication to any person," 5 U.S.C.
s 552a (b), Tomasello argues that he is entitled to $1,000 for
each copy of the Higgins letter sent to the ATF agents. We
review this claim de novo, see Chandler v. Roudebush, 425
U.S. 840, 863-64 (1974), and affirm the district court.
The Privacy Act damages provision provides that:
In any suit brought under the provisions of subsection
(g)(1)(C) or (D) of this section in which the court deter-
mines that the agency acted in a manner which was
intentional or willful, the United States shall be liable to
the individual in an amount equal to the sum of--
(A) actual damages sustained by the individual as a
result of the refusal or failure, but in no case shall a
person entitled to recovery receive less than the sum
of $1,000, and
...
5 U.S.C. s 552a(g)(4). This provision of the Privacy Act is a
waiver of sovereign immunity and, as such, "must be con-
strued strictly in favor of the sovereign, and not enlarge[d]
... beyond what the language requires." United States v.
Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citation omitted)
(alterations in original). Here, the $1000 figure seems to
refer to each time the agency "acted" or to each "refusal or
failure." 5 U.S.C. s 552(a)(g)(4). While it may be linguisti-
cally possible to read the language so as to forbid the
aggregation of several more-or-less contemporaneous trans-
missions of the same record into one "act[ ]" or "failure [to
comply with the Privacy Act]," the result Tomasello seeks
shows that such a reading defies common sense. If an
agency revealed a record on C-SPAN, reaching millions of
viewers, it would then be liable for billions in damages,
according to Tomasello. Reasonable aggregation here is not
merely "plausible"--all that is required under Nordic Village,
see 503 U.S. at 37--but proper. Accordingly, we conclude
that each letter disclosure is not independently compensable.6
B. ADEA Retaliation
Tomasello next challenges the district court's dismissal of
his ADEA retaliation claims based on sovereign immunity.
As we explain below, however, we need not decide the ques-
tion. Cf. Washington v. Washington Metro. Area Transit
Auth., 160 F.3d 750, 753 (D.C. Cir. 1998) ("Because our
resolution of the timeliness issue disposes of Washington's
ADEA and Title VII claims, we need not reach the question
whether his ADEA claim is nonetheless bared by the Elev-
enth Amendment.").
Tomasello's Title VII and ADEA retaliation claims were
based upon his "position paper," which he characterized as
protected activity, and arose from the same allegedly retalia-
__________
6 Tomasello now claims that the district court also erred in not
awarding damages for emotional distress. We do not reach this
claim because he failed to raise it below. "Absent 'exceptional
circumstances,' the court of appeals is not a forum in which a
litigant can present legal theories that it neglected to raise in a
timely manner in proceedings below." Kattan by Thomas v. Dis-
trict of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993), cert. denied,
511 U.S. 1018 (1994).
tory actions--e.g. non-selections, transfers, negative apprais-
als and critical memoranda. Both the district court, evaluat-
ing the pre-November, 1991 Title VII claims, and the jury,
evaluating the post-November 1991 Title VII claims, found
that ATF did not retaliate against Tomasello. Where Sev-
enth Amendment7 concerns are not implicated, as they are
not regarding Tomasello's ADEA retaliation claims, and there
are overlapping issues, as there are here with respect to the
nexus between Tomasello's submission of his position paper
and ATF's allegedly retaliatory actions and with respect to
Tomasello's qualifications measured against Hart's and
Gagliardi's, remand to the district court is unnecessary de-
spite improper dismissal of one of the claims. See Material
Supply Int'l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 988-
89 (D.C. Cir. 1998) (rejecting issue preclusion claim after
district court improperly decided issue of fact that should
have initially been decided by jury where Seventh Amend-
ment was implicated).8
__________
7 The Seventh Amendment provides in part:
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved....
U.S. Const. amend. VII.
8 The holding in Material Supply draws from the Supreme
Court's opinion in Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990). In Lytle, the district court had dismissed the plaintiff's
section 1981 claims after concluding that Title VII provided the
exclusive remedy. The district court subsequently conducted a
bench trial on the Title VII claims and ultimately entered judgment
for the defendant. The plaintiff appealed and the Fourth Circuit,
despite finding that the district court had erred in dismissing the
section 1981 claims, held "the District Court's findings with respect
to the Title VII claims collaterally estopped Lytle from litigating his
s 1981 claims because the elements of a cause of action" under the
two statutes were identical. 494 U.S. at 549. The Supreme Court
reversed, concluding that the right to a trial by jury outweighed any
judicial economy concerns. Id. at 553-54 ("Although our holding
requires a new trial in this case, we view such litigation as essential
to vindicating the [plaintiff's] Seventh Amendment rights.").
In this case there is no Seventh Amendment issue because
Tomasello, as a federal employee, is not entitled to a jury trial
on his ADEA claims. See Cuddy v. Carmen, 694 F.2d 853,
293 (D.C. Cir. 1982) ("[A]lthough a person who brings an
action against a private employer under ADEA does have the
right to a jury trial, a federal employee or job applicant does
not have that right."); accord Lehman v. Nakshian, 453 U.S.
156, 168-69 (1981) ("The conclusion is inescapable that Con-
gress did not depart from its normal practice of not providing
a right to trial by jury when it waived the sovereign immunity
of the United States."). Accordingly, the Seventh Amend-
ment presents no impediment to resolving the claim without
remand. In addition we have previously held that the test for
determining retaliation under the ADEA and Title VII is
identical. See Passer v. American Chem. Soc'y, 935 F.2d 322,
331 (D.C. Cir. 1991) (reciting Title VII retaliation test and
stating "[t]here is no reason for us to apply a different test of
retaliation in connection with claims under ADEA"). Never-
theless Tomasello argues that he is entitled to remand be-
cause "the evidence supporting retaliation under the ADEA
would not be identical to the Title VII retaliation evidence."
Reply Br. at 8. We do not agree. Here, assuming Tomasello
is correct about the less than perfect fit between the Title VII
and ADEA retaliation claims, he was not precluded from
presenting evidence that would have demonstrated that retal-
iation motivated ATF's actions and, as noted above, the
protected activity is the same with respect to the Title VII
and ADEA claims. Accordingly, we affirm the district court's
dismissal of Tomasello's Title VII and ADEA retaliation
claims.9
C. Title VII
Finally, Tomasello claims that he was entitled to compensa-
tory damages and a jury trial on his pre-November 1991 Title
__________
9 We do not reach the ADEA sovereign immunity issue as we
have disposed of the claims on other grounds. See Washington, 160
F.3d at 753. Nor do we decide if non-pecuniary damages are
available under the Privacy Act as Tomasello failed to raise the
issue below. See Kattan, 995 F.2d at 278.
VII claims. We believe that the Supreme Court's holding in
Landgraf v. USI Film Prods., 511 U.S. 244 (1994), that the
compensatory damages and jury trial provisions of Title VII
are not to be applied retroactively, forecloses his argument.
Ignoring the reasoning of Landgraf, Tomasello argues that
the principle enunciated in Bradley v. School Board, 416 U.S.
696, 711 (1974), that "a court is to apply the law in effect at
the time it renders its decision" controls, and, because the
1991 amendments (authorizing compensatory damages and
the right to a jury trial) were in effect at the time of trial, he
is entitled to have his pre-November 1991 title VII claims
heard by a jury and to seek compensatory damages. Brad-
ley, however, did not "cast doubt on the traditional presump-
tion against truly 'retrospective' application of a statute."
Landgraf, 511 U.S. at 279 (emphasis added).10 Absent explic-
it congressional direction, which does not exist here, courts
do not give effect to a newly enacted statute if the new
statute " 'impair[s] rights a party possessed when he acted,
increase[s] a party's liability for past conduct, or impose[s]
new duties with respect to transactions already completed.' "
DIRECTV v. FCC, 110 F.3d 816, 825-26 (D.C. Cir. 1997)
(quoting Landgraf, 511 U.S. at 280) (alterations in original).
Because application of the 1991 amendments here would "in-
crease [Treasury's] liability for past conduct," Landgraf, 511
U.S. at 280, the district court was correct in not allowing the
jury to try the pre-November 1991 Title VII claims.
In so concluding, we reject Tomasello's contention that
application of Title VII as amended would not be retroactive
because he alleged a "continuing violation," that is, the con-
duct giving rise to his claims that began before the statute's
effective date continued beyond that date. The continuing
violation exception recognized in Thompson v. Sawyer, 678
F.2d 257, 289 (D.C. Cir. 1982), where we applied the 1972
__________
10 As the Supreme Court noted in Landgraf, the grant of the jury
trial right would ordinarily apply to a case pending at the time the
statute granting the right is enacted. "However, because s 102(c)
makes a jury trial available only 'if the complaining party seeks
compensatory or punitive damages,' the jury must stand or fall with
the attached damages provision." Landgraf, 511 U.S. at 281.
amendments to Title VII to a "narrow class of cases--those in
which the conduct for which the Government is liable began
before but continued beyond the effective date of the statute,"
Brown v. Secretary of the Army, 78 F.3d 645, 652 (D.C. Cir.),
cert. denied, 117 S. Ct. 607 (1996), is not available because the
1991 amendments do not evince the same intent. In Thomp-
son, we applied the amended statute not because the applica-
tion was not retroactive but because we were following ex-
press congressional intent that " 'the 1972 amendments ...
be applied to the fullest extent possible.' " Brown, 78 F.3d at
652 (quoting McKenzie v. Sawyer, 684 F.2d 62, 78 (D.C. Cir.
1982)). As no similar intent undergirds the 1991 amend-
ments, see Landgraf, 511 U.S. at 263 ("[T]he 1991 Act con-
veys the impression that legislators agreed to disagree about
whether and to what extent the Act would apply to preenact-
ment conduct."), the Thompson holding buttresses rather
than undercuts our conclusion--without evidence of congres-
sional intent supporting retroactive application of the 1972
amendments, we would not have retroactively applied them.
Accordingly, because the right to a jury trial is tied to the
compensatory damages provision and because an award of
compensatory damages for preenactment conduct would have
an impermissible retroactive effect, see supra note 11, we
affirm the district court's decision not to submit the pre-
November 1991 claims to the jury.
Finally we reject Tomasello's remaining claims that the
district court erred in granting judgment as a matter of law
on the hostile work environment and constructive discharge
claims and that the district court "committed legal error on
the causation issue" regarding Tomasello's claims of retaliato-
ry failure to promote. The district court dismissed the
hostile work environment and constructive discharge claims,
finding the alleged behavior insufficiently severe and perva-
sive as a matter of law, and ruled against Tomasello on the
retaliatory failure to promote claim both due to the temporal
remoteness of the protected activity from the allegedly retal-
iatory actions and because both Gagliardi and Hart were
better qualified. Having thoroughly reviewed Tomasello's
claims on these issues, we find them without merit.11 Accord-
ingly, we affirm the district court's dismissal of the hostile
work environment and constructive discharge claims as well
as its finding of no retaliation in relation to the failure to
promote claims.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
__________
11 On the retaliatory failure to promote claim, Tomasello chal-
lenges only the"temporal relationship" aspect of the district court's
dismissal. He does not challenge the district court's finding that
Gagliardi and Hart were better qualified. As the qualification
ground standing alone provides an adequate basis for the district
court's holding, we affirm and need not address the "temporal
relationship" issue. On the hostile work environment and construc-
tive discharge claims, Tomasello asserted that the claims were
based on specific comments and on the Dyer, Lambert and McArdle
memoranda. He did not request the district court to consider the
alleged Privacy Act violations in deciding the hostile work environ-
ment claim and, accordingly, he may not raise the issue for the first
time on appeal. See Katten, 995 F.2d at 278. As this leaves only a
series of nondiscriminatory memoranda and isolated comments, the
last one of which occurred in 1990, we believe that the district court
did not err in granting judgment as a matter of law on these claims.
Cf. Beckwith v. Career Blazers Learning Ctr., 946 F. Supp. 1035,
1051 (D.D.C. 1996).