UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


TOMASELLO, LOUIS

v.

RUBIN, ROBERT


97-5233a

D.C. Cir. 1999


*	*	*


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 


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 


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


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


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




__________

n 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


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


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


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


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 




__________

n 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


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


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


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


(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


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-


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-




__________

n 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.


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




__________

n 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 




__________

n 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


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 




__________

n 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


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.




__________

n 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