United States Court of Appeals

For the First Circuit

No. 20-1792

FRANCISCO J. REYES-CAPARROS,

Plaintiff, Appellant,

v.

MERRICK B. GARLAND,*

UNITED STATES ATTORNEY GENERAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Joseph N. Laplante,** U.S. District Judge] 

Before

Lynch and Selya, Circuit Judges,

and McConnell,*** District Judge.

Bamily López-Ortiz, with whom Lizabel M. Negron-Vargas was on 

brief, for appellant.

Sean R. Janda, Attorney, Civil Division, United States 

Department of Justice, with whom Nathaniel R. Mendell, Acting 

United States Attorney, District of Massachusetts, and Jason C. 

Weida, Assistant United States Attorney, District of 

Massachusetts, were on brief, for appellee.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Merrick B. Garland has been substituted for former Attorney General 

William P. Barr as the defendant-appellee. 

** Of the District of New Hampshire, sitting by designation. 

*** Of the District of Rhode Island, sitting by designation.
February 22, 2022
- 3 -

MCCONNELL, District Judge. Francisco J. Reyes-Caparros 

("Mr. Reyes"), a former intelligence specialist for the United 

States Attorney's Office ("USAO") for the District of Puerto Rico, 

sued his former employer under Title VII of the Civil Rights Act

of 1964 alleging discriminatory retaliation and constructive 

discharge resulting from a hostile work environment. A jury 

returned a verdict on liability for retaliation and awarded 

Mr. Reyes the statutory maximum of $300,000 in damages. Because of 

the equitable nature of damages for constructive discharge and at 

the urging of both parties, the district court charged the jury to 

return an advisory verdict on that issue. That verdict was also in 

Mr. Reyes's favor, so he then sought a judgment of front and back 

pay from the district court. The court rejected the jury's advisory 

verdict on the basis that the verdict was not supported by the 

evidence, determining that Mr. Reyes was not constructively 

discharged and therefore not entitled to front or back pay. 

Mr. Reyes appeals, arguing that the jury's verdict on 

constructive discharge was not advisory, but binding on the 

district court. He also argues that the district court committed 

legal error in rejecting that verdict and making its own findings 

on constructive discharge. Because there was no clear error in the 

district court's findings, we affirm.
- 4 -

I. Facts

"We recount the facts as supportably found by the

district court." Bolduc v. United States 402 F.3d 50, 52 (1st

Cir. 2005); see also Gonzalez-Rucci v. INS, 539 F.3d 66, 67 (1st

Cir. 2008) ("As this case comes to us following a bench trial, we

recount the relevant facts as found by the district court,

consistent with record support."). 

Mr. Reyes worked for the USAO for the District of Puerto 

Rico as an Intelligence Specialist, from 2009 until he resigned in 

February 2015. Mr. Reyes's problems at work began in February 

2012 when he gave a ballistic vest to an Assistant United States 

Attorney, who unbeknownst to Mr. Reyes had filed an employment 

discrimination claim against the office. Days later, he was called 

into a management meeting and chastised for supplying the vest to 

one of the office "crazies" and "helping her become a victim." 

Mr. Reyes points to this as the moment when three years 

of retaliatory conduct by his supervisors against him began, 

creating a hostile work environment. He alleges that his 

supervisors micromanaged him, moved his office, and unjustly 

reprimanded him. Mr. Reyes also came under investigation in October 

2013 by the Federal Bureau of Investigation ("FBI") and the 

Department of Justice's Office of Inspector General ("OIG") after 

he accepted an invitation to attend a program in Russia hosted by 

an organization led by a known Russian spy. This investigation led 
- 5 -

to the FBI restricting his access to FBI-controlled office space 

and information during its pendency. The restrictions caused 

Mr. Reyes to be furloughed during the 2013 government shutdown

and, when he returned to work, he was reassigned to paralegal

duties. Shortly thereafter, Mr. Reyes filed his first Equal

Employment Opportunity ("EEO") complaint alleging retaliation.

During this time, Mr. Reyes was reprimanded for posting 

an inappropriate picture of a security guard and gossiping about 

co-workers suspected of having an affair, and suspended for lack 

of candor and negligent performance of an assignment in which he 

was tasked with collecting and presenting statistics related to 

firearms cases prosecuted by the USAO. His supervisor asked him 

for a doctor's note when he took a full day's leave for a medical 

appointment after pictures of him on the beach that same day were 

posted on Facebook.

He says his supervisors retaliated against him by 

heavily editing a memorandum he submitted to the chief of the 

Appellate Division. Mr. Reyes alleged that a move to a different 

building where he was assigned to work on Social Security fraud 

investigations was retaliatory. The OIG investigation resulted in 

a report that Mr. Reyes violated Department of Justice travel 

policy and showed poor judgment in accepting the Russian diplomat's 

invitation.
- 6 -

Mr. Reyes filed a second complaint with the department's 

Equal Employment Office in October 2014. The record suggests that 

the plaintiff had been considering a career transition for some 

time. He had been attending law school and, around the same time, 

he began looking for other jobs, speaking with a relative in 

Florida about an attorney position within his law firm. He sought 

to be reinstated as an intelligence specialist but he could not 

fulfill all the duties of that role. This was because, even though 

OIG finished its investigation and issued a report, his access to 

FBI physical space and information was still restricted, because 

the FBI had not completed its investigation. In February 2015, 

Mr. Reyes resigned his position with the USAO alleging the 

supposedly "unfounded" investigation of him as well as some of 

these incidents described above. Ultimately, Mr. Reyes accepted 

the position with his relative's law firm. 

Mr. Reyes sued his former employer under Title VII citing 

a single claim of discrimination and retaliation and seeking both 

money damages and equitable relief. Prior to the start of trial

and in response to a proposed jury instruction on constructive 

discharge that Mr. Reyes requested, the government filed a motion 

to preclude evidence of front pay and back pay at trial on the 

ground that that issue was not a part of his case. The district 

court granted that motion, but held that "in the event of a verdict 

in the plaintiff's favor, the court will permit further briefing 
- 7 -

and argument on the availability of these remedies in equity and, 

if they are available, it will hold a post-trial evidentiary 

hearing on damages."

After the close of evidence, Mr. Reyes again requested 

a constructive discharge instruction and a verdict form question 

on constructive discharge. The government objected; the district 

court decided to instruct the jury on constructive discharge, but 

limit the jury's decision on this issue to an advisory finding.

Mr. Reyes did not object to this instruction. The jury returned a 

verdict for Mr. Reyes, awarded him $300,000 in damages, and 

rendered an advisory finding that Mr. Reyes had been constructively

discharged.

Post verdict, the government filed a Rule 50 motion, 

which the district court denied, and Mr. Reyes sought equitable 

relief of back and front pay on the constructive discharge advisory 

verdict. After inviting the parties to provide further argument 

and evidence, the district court determined that Mr. Reyes was not 

entitled to equitable relief on two grounds. It concluded first 

that Mr. Reyes's failure to assert a separate constructive 

discharge claim barred his claim to any equitable relief. The 

district court also independently reviewed the evidence at trial

against the jury's advisory verdict and disagreed that it supported

the jury's finding that he was constructively discharged. The court 

rejected the jury's advisory verdict and denied Mr. Reyes's request 
- 8 -

for equitable relief; this appeal of our denial of equitable relief 

ensued.1

II. Analysis

While the parties raise several tangential issues in 

their briefing,2 there are two main issues for the court's review: 

whether Mr. Reyes waived his objection to the district court's 

decision to submit the constructive discharge issue for an advisory 

verdict and whether the district court's decision to reject the 

advisory jury's verdict in Mr. Reyes's favor was clearly erroneous. 

A. Mr. Reyes Waived His Objection to the District Court's 

Decision to Submit the Constructive Discharge Issue to an 

Advisory Jury 

Federal Rule of Civil Procedure 39(c)(1) "grants a 

district court the discretion to empanel an advisory jury either 

on a party's motion or sua sponte." United States v. Shields, 649 

F.3d 78, 83 n.5 (1st Cir. 2011). A decision to do so is reviewed 

for abuse of discretion. See, e.g., Schaffart v. ONEOK, Inc., 686 

F.3d 461, 475 (8th Cir. 2012); Banco Indus. De Venezuela, C.A. v. 

Credit Suisse, 99 F.3d 1045, 1049 (11th Cir. 1996). In this case, 

all parties agreed to submit the constructive discharge issue to 

1 The government initially appealed the adverse jury verdict, 

but subsequently dropped its appeal.

2 Mr. Reyes takes issue with the district court's legal 

determination that he could not make out a constructive discharge 

claim because he did not allege it as a separate and distinct claim 

from his retaliation claim. The court need not address this

argument because its ruling on the district court's substantive 

decision is dispositive of this appeal. 
- 9 -

the jury for an advisory verdict because the remedies for that 

aspect of Mr. Reyes's case were equitable and, if appropriate, 

could only be awarded by the district court.

Mr. Reyes contends that he was entitled to a binding 

verdict on the issue of whether he was constructively discharged 

as a part of his retaliation claim and now argues that the district 

court erroneously labeled it as an "advisory" verdict. Mr. Reyes's

position below dooms his appeal on this issue. "The proposition is 

well established that, 'absent the most extraordinary 

circumstances, legal theories not raised squarely in the lower 

court cannot be broached for the first time on appeal.'" In re 

Net-Velazquez, 625 F.3d 34, 40 (1st Cir. 2010) (quoting Teamsters, 

Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline 

Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)). "Though sometimes 

severe in effect, this raise-or-waive rule 'is founded upon 

important considerations of fairness, judicial economy, and 

practical wisdom.'" Id. (quoting Nat'l Ass'n of Soc. Workers v. 

Harwood, 69 F.3d 622, 627 (1st Cir. 1995)).

The record contains no evidence that Mr. Reyes raised an 

objection below to the jury giving an advisory verdict on 

constructive discharge. The proposed jury verdict form stated that 

the question of constructive discharge would be an advisory 

verdict, the proposed jury instructions stated that it would be an 

advisory verdict, and the actual charge to the jury stated that it 
- 10 -

would be an advisory verdict. Mr. Reyes did not object to any of 

these. In fact, Mr. Reyes's counsel told the judge during the 

charge conference that the jury's determination on constructive 

discharge would be, "advisory, the Court is not bound by it."

Because he did not split hairs then, as he does now, that the 

advisory verdict on constructive discharge liability was binding 

and the district court's discretion only went to the amount of 

equitable relief to award, the court rejects that argument as 

waived. On the record before us, we cannot identify an abuse of 

discretion in the district court's empaneling of an advisory jury.

B. Sufficiency of the Evidence

Now that it is settled that the jury's verdict on 

constructive discharge was advisory, we review the district 

court's next steps upon receiving such a verdict. Because an 

advisory jury's role "is, as the name would suggest, purely 

advisory in nature[,]" "'[t]he responsibility for the decisionrendering process remains with the trial judge' and 'it is in its 

discretion whether to accept or reject, in whole or in part, the 

verdict or findings of the advisory jury.'" Shields, 649 F.3d at

84 n.5 (alteration in original) (quoting 9 Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 2335, at 354–

56 (3d ed. 2008)); see Fed. R. Civ. P. 39(c)(1).

But "[i]n an action tried on the facts . . . with 

an advisory jury, the court must find the facts specially and state 
- 11 -

its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). The 

district court's decision either to accept or reject an advisory 

verdict "must not be set aside unless clearly erroneous." Fed. R. 

Civ. P. 52(a)(6); see Windsor Mount Joy Mut. Ins. Co. v.

Giragosian, 57 F.3d 50, 53 (1st Cir. 1995). A "finding is 'clearly 

erroneous' when although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed." Anderson

v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting United 

States v. United States Gypsum Co., 333 U.S. 364, 394-95 (1948)).

The district court has the ultimate discretion to reject 

an advisory verdict as long as it makes an independent review of 

the law and facts presented at trial. That is precisely what the 

district court did in this case.

In order to prove he was constructively discharged, an 

employee "must prove that his employer imposed 'working conditions 

so intolerable [] that a reasonable person would feel compelled to 

forsake his job rather than to submit to looming indignities.'"

See Landrau–Romero v. Banco Popular De P.R., 212 F.3d 607, 613 

(1st Cir. 2000) (alteration in original) (quoting Simas v. First 

Citizens’ Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999)). 

Accordingly, an employee must show some sort of adverse employment 

action short of actual termination - such as one might also see in 

a retaliation or discrimination case - to make out a claim of 
- 12 -

constructive discharge. "Typically, the employer must either (1) 

take something of consequence from the employee, say, by 

discharging or demoting [him], reducing [his] salary, or divesting 

[him] of significant responsibilities, or (2) withhold from the 

employee an accouterment of the employment relationship, say, by 

failing to follow a customary practice of considering [him] for 

promotion after a particular period of service." Blackie v. 

Maine, 75 F.3d 716, 725–726 (1st Cir. 1996) (citations omitted). 

"To prove constructive discharge, a plaintiff must offer evidence 

of harassment at least as severe (if not more) than that required 

for a hostile work environment claim." Hall v. FMR Corp., 667 F. 

Supp. 2d 185, 202 (D. Mass. 2009); see id. ("Petty annoyances, 

minor workplace indignities, and hurt feelings do not make out 

a constructive discharge claim . . . ."). 

After hearing all the evidence admitted at trial, and 

after inviting the parties to produce further evidence on this 

issue, the district court rejected the jury's advisory verdict, 

and instead found that Mr. Reyes had failed to prove his claim of 

constructive discharge.3 The district court recounted Mr. Reyes's

3 The government raises the fact that Mr. Reyes only 

challenges the district court's legal conclusion that he could not 

recover on his equitable claim because he failed to bring a 

separate constructive discharge claim and not its substantive 

conclusion that he did not present enough evidence of such a claim. 

The government urges us to affirm the district court's order 

because Mr. Reyes waived this argument. Mr. Reyes does argue that 

the district court should have accepted the advisory verdict on 
- 13 -

claims that beginning three years before he resigned, his 

supervisors gave him greater oversight, micromanaged him, moved 

his office to a less desirable floor (closer to his supervisor), 

and reprimanded him for mocking a security guard on site. He 

alleged retaliation in the form of an FBI investigation after he 

sought permission to attend a cultural program in Russia hosted by 

a Russian spy. Because of this ongoing investigation, Mr. Reyes 

was restricted from working in areas that might require him to 

interface with the FBI.

The district court, after reviewing all the evidence, 

found that Mr. Reyes did not meet the standard for constructive 

discharge because the actions giving rise to his resignation had 

been ongoing for three years and the final act he asserts occurred 

four months before he resigned. Along with the lack of timeliness 

the district court also noted that Mr. Reyes always retained the 

same title and salary throughout the three years of his alleged 

harassment. The district court correctly found that no reasonable 

person would have felt compelled to resign when faced with these 

conditions. Gerald v. Univ. of P.R., 707 F.3d 7, 25 (1st Cir. 2013). 

constructive discharge on the facts because the jury also found 

that he proved his retaliation claim based on those same facts. 

While he does not recount each fact on which the jury could have 

reached its verdict, we will look at the district court's 

independent review of the facts in its discretionary role to accept 

or reject the advisory verdict.
- 14 -

Further, the evidence showed that Mr. Reyes voluntarily left to 

pursue a new career as an attorney, a move that he had been planning 

for some time before he resigned.

The fact that the jury found in Mr. Reyes's favor on his 

retaliation claim does not raise doubt as to the district court's 

rejection of its advisory verdict on constructive discharge. The 

district court's order explaining its findings is thorough, factbased, grounded in the facts and law, and therefore we cannot say 

that its factual findings were clearly erroneous. See Cumpiano v. 

Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining 

that, when reviewing for clear error, appellate courts "ought not 

to upset findings of fact . . . unless, on the whole of the record, 

[they] form a strong, unyielding belief that a mistake has been 

made").

III. Conclusion

Because the district court's factual determination that 

Mr. Reyes was not constructively discharged was not clearly 

erroneous, the judgment of the district court is

Affirmed.