Tomasello, Louis v. Rubin, Robert

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).