UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1608
AGNES VERA-LOZANO,
Plaintiff - Appellee,
v.
INTERNATIONAL BROADCASTING,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Boyle,* Senior District Judge.
Igor J. Dom nguez-P rez, with whom Igor J. Dom nguez Law
Offices was on brief for appellant.
Charles S. Hey-Maestre, with whom Peter Berkowitz and Rick
Nemcik-Cruz were on brief for appellee.
March 22, 1995
* Of the District of Rhode Island, sitting by designation.
Boyle, Senior District Judge. International
Boyle, Senior District Judge
Broadcasting Corporation (IBC) appeals a judgment based upon a
jury verdict in favor of Agnes Vera-Lozano on her claims under
Title VII of the Civil Rights Act of 1964 and Puerto Rico Laws 3
and 100. IBC claims that the district court committed reversible
error when it denied IBC's Rule 50 motions for judgment as a
matter of law. IBC also contends that the lower court improperly
exercised supplemental jurisdiction over claims arising from
Puerto Rico Laws 3 and 100. Finally, IBC claims that the lower
court erred in awarding compensatory damages and excessive back
pay. For the following reasons we affirm the court below.
I. BACKGROUND
I. BACKGROUND
Appellee, Vera, filed a complaint with the Anti-
Discrimination Unit of the Puerto Rico Department of Labor (UAD),
alleging employment discrimination under Title VII of the Civil
Rights Act of 1964. She duly notified the Appellant, IBC, who
did not respond at that time. The UAD determined that probable
cause existed for a discrimination suit based on sex and
pregnancy.
The complaint in the action below was filed on June 2,
1992, in the United States District Court for the District of
Puerto Rico. The complaint alleged claims arising under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.,
and invoked the court's supplemental jurisdiction to hear claims
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arising under Puerto Rico Law 3, 29 P.R.L.A. 467, et seq., and
Law 100, as amended, 29 P.R.L.A. 146, et seq. Jurisdiction was
exercised pursuant to 28 U.S.C. 1331, 2201 and 2202.
Vera was a full-time master control operator for Three
Star Telecast Corp. (Three Star), which owned and operated
Channel 18 from 1984 until December 21, 1990, when the station
was taken over by IBC. The master control unit regulates the
receiving and broadcasting of television transmissions. There
were six master control operators at Three Star; Vera was the
most senior.
Pedro Rom n-Collazo was at all relevant times
President, General Manager, and owner of IBC. During Rom n's
tenure, IBC purchased the permit to broadcast on Channel 18 as
well as other assets of Three Star Telecast. Grisel Torres, an
employee of IBC, became the general manager of Channel 18.
On December 21, 1990, the last day Three Star operated
Channel 18, it laid off twenty employees, retaining only four.
The new owner assured the dismissed former employees that they
would be rehired. In fact, several days prior to the takeover,
Torres, instructed Philbert Modeste, who had been retained by IBC
to continue as the engineer in charge of the master control unit,
to prepare a list of three former Three Star employees to be
hired. That list included Vera. Modeste testified at trial that
when he submitted the list to Torres, she told him that Vera was
not eligible because "she was going to have a baby."
Vera gave birth on January 22, 1991. In early
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February, she went to Modeste seeking employment. He told her
that he would contact Torres about a possible position for her.
IBC, however, never contacted Vera despite the fact that the
company was seeking a master control operator. Vera discovered
that an opening existed at IBC from a newspaper advertisement.
In response to this advertisement, Vera again contacted Modeste.
Again, he asked her to resubmit her resume. IBC did not hire
Vera. Instead, the position was filled by a man, Pablo Mart nez,
who had never worked for Three Star.
II. RULE 50 MOTION
II. RULE 50 MOTION
IBC made a Rule 50 motion for judgment as a matter of
law at the close of Vera's case. IBC alleged that it was not
covered by Title VII because it did not have the requisite number
of employees. This motion was renewed after the close of the
defendant's case.
Title VII of the Civil Rights Act of 1964 makes it
unlawful for an employer to discriminate against an employee on
account of gender or pregnancy. See 42 U.S.C. 2000e-2. For
the purposes of that statute "employer" is defined as "a person
engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year." 42 U.S.C.
2000e. Since IBC did not own the assets of Three Star until
December 21, 1990, IBC cannot be an employer for that calendar
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year.
Section 2000e-2 makes it unlawful for an employer "to
fail or refuse to hire or to discharge any individual, or
otherwise discriminate against any individual . . . because of
such individual's . . . sex." The record shows that Vera
reapplied for her former position of master control unit operator
on two separate occasions in 1991. IBC's denial of employment
was ongoing during that time. The "current year" then, as
defined by the statute, is 1991. See Dumas v. Town of Mount
Vernon, Ala., 612 F.2d 974, 979 n.4 (5th Cir. 1980).
IBC argues that part-time employees should be counted
as employees for a given week only if they actually work all five
days of that week. We considered this question in Thurber v.
Jack Reilly's Inc., 717 F.2d 633 (1st Cir. 1983), and found the
law in this circuit to be to the contrary. In Thurber, the
defendant was a small bar in Cambridge, Massachusetts. See id.
Although the defendant had only nine full-time employees, at
least fifteen employees were on the payroll for more than twenty
weeks during the relevant calendar year. See id. at 634. On any
given day, only eleven of these employees reported for work. See
id. We concluded that the defendant was an employer for the
purposes of Title VII. See id. We reasoned that the relevant
employees were not only those who were physically present at the
bar each day, but all those who had an ongoing employment
relationship with the employer during the requisite twenty weeks.
See id. (citing Pedreyra v. Cornell Prescription Pharmacies, 465
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F. Supp. 936, 941 (D.Colo. 1979); Hornick v. Borough of Duryea,
507 F. Supp. 1091, 1097 (M.D.Pa. 1980)).
This reasoning is persuasive especially in light of
Title VII's legislative history. While Congress did express
concern for the over-regulation of small businesses, it appears
to have adopted the definition of "employer" from the
Unemployment Tax Act. See 100 Cong. Rec. S13087 (daily ed. June
9, 1964) (statement of Sen. Dirksen). An employee is counted
under that statute for each day that an employment relationship
exists regardless of whether the employee reported to work each
day. See Rev. Rule 55-19, 1955-1 C.B. 496. As we noted in
Thurber, although it is true that such a reading of the statute
may bring within its ambit a number of truly "Mom and Pop"
establishments, the burden on these businesses would not be a
considerable one; simply put, they could not discriminate. See
Thurber at 635.
Counting both part-time and full-time employees on the
payroll during 1991, there is sufficient evidence on the record
in the form of testimony of Vera and Rom n to support finding
that IBC was an employer as defined by Title VII. For this
reason we find that the district court's denial of the Rule 50
motions was not in error.
III. SUPPLEMENTAL JURISDICTION
III. SUPPLEMENTAL JURISDICTION
IBC contends that the district court improperly
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exercised supplemental jurisdiction over the claims arising under
the Puerto Rico statutes.
In 1990, Congress enacted 28 U.S.C. 1367, which
granted federal courts "supplemental jurisdiction" or what had
formerly been referred to as "pendent jurisdiction" and
"ancillary jurisdiction." This section states that "in any civil
action over which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action . . .
that they form part of the same case and controversy." 28 U.S.C.
1367 (1993).
This statute codified the Supreme Court's analysis in
United Mine Workers v. Gibbs, 383 U.S. 715 (1966). See Sinclair
v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991); Bridges v.
Eastman Kodak Co., 800 F. Supp. 1172, 1178 (S.D.N.Y. 1992). The
Court stated in Gibbs that a federal court may exercise
supplemental jurisdiction over a state claim whenever it is
joined with a federal claim and the two claims "derive from a
common nucleus of operative fact" and the plaintiff "would
ordinarily be expected to try them both in one judicial
proceeding." Gibbs, 383 U.S. at 725; Brown v. Trustees of
Boston University, 891 F.2d 337, 356 (1st Cir.), cert. denied,
496 U.S. 937 (1989). The statute expressly states that a
district court may refuse to exercise this jurisdiction if the
state claim "substantially predominates over the claim or claims
over which the district court has original jurisdiction" or "the
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claim raises a novel or complex issue of state law." 28 U.S.C.
3567(c)(1), (c)(2).
IBC does not dispute that the federal and state claims
arise out of the same set of facts. IBC's only argument is that
the district court abused its discretion in exercising
jurisdiction over the state claims because the state statutes
have different standards of proof and may therefore confuse the
jury.
Because the decision whether to exercise supplemental
jurisdiction is left to the broad discretion of the district
court, this decision will be disturbed only upon finding an abuse
of discretion. See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.
1991); McCaffrey v. Rex Motor Transport, Inc., 672 F.2d 250 (1st
Cir. 1982). Here there is clearly no such abuse: the state
claims do not predominate; Vera points to no novel issue of state
law; and joint adjudication serves the interest of judicial
economy and fairness. We therefore find that the district court
properly exercised supplemental jurisdiction.
IV. JURY TRIAL
IV. JURY TRIAL
IBC claims that the district court committed reversible
error when it tried the case before a jury. The Constitution of
Puerto Rico does not afford litigants in a civil action the right
to trial by jury. IBC contends therefore that the district court
erred in allowing a jury to determine facts needed to decide the
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claims arising under the laws of Puerto Rico.
This claim is without merit. It is well accepted that
the Seventh Amendment affords litigants in federal courts in
Puerto Rico the right to trial by jury, notwithstanding the fact
that the Constitution of Puerto Rico does not allow for juries in
civil cases. See Marshall v. P rez Arzuaga, 828 F.2d 845, 849
(1st Cir. 1987), cert. denied, Avis Rent-A-Car of Puerto Rico,
Inc. v. Marshall, 484 U.S. 1065 (1988); LaForest v. Autoridad de
las Fuentes Fluviales de P.R., 536 F.2d 443, 446 (1st Cir. 1976);
see also Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 536-40
(1958).
V. DAMAGES
V. DAMAGES
IBC maintains that the trial court erred by allowing
the jury to award compensatory damages based on a retroactive
application of the Civil Rights Act of 1991. However, the
verdict form correctly allowed for an award of compensatory
damages based on the violation of either federal or Puerto Rico
law. Because the jury's finding that IBC violated Puerto Rico
law would alone support the award of compensatory damages, the
submission of the claim based on the Civil Rights Act, if
incorrect, was harmless error and will not be disturbed on
appeal. See Shepp v. Uehlinger, 775 F.2d 452, 456-57 (1st Cir.
1985); see also Gillentine v. McKeand, 426 F.2d 717, 724 (1st
Cir. 1970).
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IBC also complains that the amount of damages awarded
for back pay is not supported by the evidence. IBC failed to
raise this issue in the court below either during trial or in a
post-verdict motion to set-aside the verdict. As a general rule
a Court of Appeals will not consider an issue raised for the
first time on appeal absent exceptional circumstances. See
Refuse and Environmental Systems, Inc. v. Industrial Servs., 932
F.2d 37, 41 (1st Cir. 1992); Mello v. K-Mart Corp., 792 F.2d
1228, 1233 (1st Cir. 1982). Here, there are no exceptional
circumstances and thus we consider the issue to be waived.
Had IBC properly raised this issue below, the result
would be unchanged. For the party seeking to attack the amount
of jury-awarded damages, the applicable standard of review is
daunting. We will not disturb an award of damages for economic
loss "provided it does not 'violate the conscience of the court
or strike such a dissonant chord that justice would be denied
were the judgment permitted to stand.'" See Havinga v. Crowley
Towing and Transportation Co., 24 F.3d 1480, 1489 (1st Cir.
1994)(quoting Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st
Cir. 1988)); Linn v. Andover Newton Theological School, Inc.,
874 F.2d 1, 6 (1st Cir. 1989). "Generousness of a jury's award
does not alone justify an appellate court in setting it aside."
Kolb v. Goldring, Inc., 694 F.2d 869, 871 (1st Cir. 1982). Under
this standard the court should "examine the evidence in detail .
. . and in a light most favorable to the plaintiff." Havinga, 24
F.3d at 1489.
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There is ample support in the record for the jury's
verdict as to back pay. IBC's main contention is that Vera
failed to mitigate her damages by voluntarily resigning from a
job as a receptionist in February of 1992. IBC claims that back
pay should not be awarded during the period beginning with the
date of her voluntary resignation until the date the judgment was
entered. We will not supplant the jury's verdict nor second-
guess what may have been their thought process regarding the
voluntary nature of Vera's resignation or her efforts to
mitigate. This reluctance is especially appropriate in light of
evidence, in the form of Vera's testimony, supporting a possible
finding that the receptionist job provided no additional economic
support given the irregular work schedule, the cost of child care
for her two children and the low pay.
VI. CONCLUSION
VI. CONCLUSION
For the foregoing reasons, we affirm.
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