Rodriguez-Hernandez v. Miranda-Velez

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-2027

SANDRA RODRIGUEZ-HERNANDEZ,

Plaintiff, Appellee,

v.

EDWIN MIRANDA-VELEZ, ET AL.,

Defendants, Appellants.

No. 96-1416

SANDRA RODRIGUEZ-HERNANDEZ,

Plaintiff, Appellee,

v.

EDWIN MIRANDA-VELEZ, ET AL.,

Defendants, Appellants.

No. 97-1444

SANDRA RODRIGUEZ-HERNANDEZ,

Plaintiff, Appellee,

v.

EDWIN MIRANDA-VELEZ, ET AL.,

Defendants, Appellants.

No. 97-1445

SANDRA RODRIGUEZ-HERNANDEZ,

Plaintiff, Appellant,

v.

EDWIN MIRANDA-VELEZ, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and DiClerico,* District Judge.

Judith Berkan, with whom Rosalinda Pesquera and Mary Jo Mendez

were on brief, for plaintiff.
Eugene F. Hestres, with whom Bird, Bird & Hestres was on brief,

for defendants.
Frank D. Inserni on brief pro se.

January 6, 1998

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

LYNCH, Circuit Judge. Sandra Rodriguez-Hernandez
LYNCH, Circuit Judge.

was discharged from her job at Occidental International after

complaining to her employer about being subjected to the

sexual demands of a high-level executive at Occidental's most

important customer. The main issues presented by this appeal

are whether the jury's verdict in favor of the customer

dictates that the verdict against her employer be reversed;

whether the court's evidentiary and juror peremptory

challenge rulings were correct; whether the district court

evinced bias against the defendants; and whether the court's

attorney's fees award was adequate. We affirm the verdict,

but we vacate and remand on the attorney's fees issue.

I.

We review the facts in the light most favorable to

the jury's verdict. See Ansin v. River Oaks Furniture, Inc.,

105 F.3d 745, 749 (1st Cir. 1997), cert. denied, 118 S. Ct.

70 (1997).

Rodriguez worked as an office manager for

Occidental International, a Florida company with offices in

Florida and Puerto Rico. Rodriguez started working for

Occidental in December of 1988 in the Traffic and Claims

division of the Puerto Rico office. She was twice promoted,

and was put in charge of overseeing the daily operations of

her office in February of 1990. While she was never formally

evaluated during her employment, Rodriguez received regular

praise for her work, and before the suspension and dismissal

that led to this lawsuit, she had never been the subject of

disciplinary action.

Occidental International sells electrical and

industrial equipment. Occidental's most important market was

Puerto Rico, and its most important customer was the Puerto

Rico Electric Power Authority ("PREPA"). At the time of

Rodriguez's dismissal, approximately 80% of Occidental's

business in Puerto Rico was with PREPA.

Omar Chavez was the President and sole shareholder

of Occidental. Chavez lived in Florida, and would make

monthly business trips to Puerto Rico. Chavez pursued a

number of strategies which he thought would ensure continued

good relations between Occidental and its customers,

particularly with PREPA. Evidence presented at trial showed

that Chavez primarily employed young, attractive women, known

to customers as "Occidental Gals," and instructed them to be

especially cordial to PREPA employees.

Good relations were particularly important with

high-ranking PREPA officials like Edwin Miranda-Velez, the

Chief of PREPA's Materials Management Division and the

overseer of PREPA's public contracts for the type of goods

sold by Occidental. Chavez introduced Rodriguez to Miranda,

and told her that Miranda was very important for Occidental's

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business and that she and the other employees should be nice

to him and "keep him satisfied." She was instructed to visit

Miranda every time she went to the PREPA offices.

Occidental pursued other strategies. It made

political contributions to the Popular Democratic Party, of

which Miranda was a very active member, and solicited

donations on its behalf. Chavez financed social activities

for PREPA employees and gave Christmas presents to PREPA

officials. In December of 1990, Chavez threw a party for

PREPA officials at a local hotel. The members of the

Occidental Puerto Rico staff, all female, were instructed to

attend the event unaccompanied, so they would be available to

dance with the PREPA executives. The night's entertainment

at that party included a dancing show performed by scantily

clad women.

The close relationship with PREPA benefitted

Occidental, and Chavez, in several ways. Chavez was able to

learn from Miranda in advance what bids would be coming up

and how much Occidental's competitors were bidding. Miranda

helped to steer business to Occidental through requests for

proposals that were handled outside the ordinary bidding

process. For example, Miranda helped Occidental to obtain a

transportation contract on an "emergency" basis. Miranda

signed all pertinent documentation and recommended payments

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to suppliers. There were also allegations that Miranda was

able to help Occidental avoid trouble over tax disclosures.

Miranda began to make unwelcome approaches and

suggestive comments to Rodriguez. He invited her out to

dinner. He asked her to visit his office after hours and on

Friday evenings. He anonymously sent her flowers for her

birthday and included a sexually explicit card. Rodriguez

complained to Chavez about this behavior; Chavez responded by

stressing that Miranda was an important client, but assured

her that he would deal with the problem.

The culmination, as it were, of Miranda's advances

came on February 28, 1992. Miranda called Rodriguez and told

her he would come pick her up to take her to a motel.

Rodriguez, upset by Miranda's latest advance, called Chavez

to complain about Miranda's call. Chavez responded by

defending Miranda, and saying that Rodriguez should respond

to Miranda "as a woman." Rodriguez told Chavez that if he

would do nothing about the situation, she would take her

complaints to the Director of PREPA.

That weekend, Chavez flew to Puerto Rico. On March

9, 1992, Chavez gave Rodriguez a letter informing her that

she was suspended from work for thirty days. The letter

stated the reasons for her suspension as unauthorized use of

company property, contracting for services in the company

name without authorization, and absenteeism. On April 6,

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Rodriguez received a second letter dismissing her from

employment at Occidental. The grounds for her dismissal were

an unexplained imbalance of $157.00 in petty cash funds and

negligence in executing daily functions such as picking up

company mail, as well as the problems noted in the March 9

letter. Rodriguez had never been notified of any such

deficiencies before.

II.

In September of 1992, Rodriguez filed a complaint

against Occidental and Chavez with the Anti-Discrimination

Unit of the Puerto Rico Department of Labor and with the

Equal Employment Opportunity Commission. In November of

1992, while that complaint was before the agency, Rodriguez

sued Miranda in district court under 42 U.S.C. 1983 for

violations of her rights under the Fifth, Ninth, and

Fourteenth Amendments, and sued both Miranda and PREPA under

Puerto Rico tort law and the Puerto Rico Constitution.

After exhausting her administrative remedies,

Rodriguez received a right-to-sue letter from the EEOC in

June of 1993 and amended her complaint to name Chavez and

Occidental as defendants. The amended complaint asserted

claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e-2000e-17, as well as claims under Puerto Rico

law.

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In July of 1994, the district court issued an order

eliminating some of Rodriguez's claims. The district court

dismissed the 1983 claim, but not the Puerto Rico law

claims, against Miranda. Thus only Puerto Rico law claims

remained against Miranda and PREPA, over which the court

retained jurisdiction under 28 U.S.C. 1367. The district

court granted summary judgment in favor of defendant Chavez

on Rodriguez's Title VII claim against Chavez, but allowed

the Puerto Rico law claims against Chavez to go to the jury.

Thus the only federal claim that remained at the start of the

trial was Rodriguez's Title VII claim against her employer,

Occidental. The only claims which went to the jury against

Miranda were based on commonwealth law.

The trial was hotly contested and extremely

contentious. In the course of the trial, the district court

sanctioned defense counsel for violating an order in limine.

After a five week trial, the jury held Occidental and Chavez

liable to the plaintiff, but found Miranda and PREPA not

liable. The jury form simply asked that the jurors answer

yes or no as to whether each of the defendants was "liable to

plaintiff Sandra Rodriguez." Rodriguez received an award of

$200,000 in compensatory and punitive damages against

Occidental and Chavez. The jury answered no as to the

commonwealth law claims against Miranda.

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The district court awarded Rodriguez attorney's

fees. But in the face of a documented request for

approximately $440,000 in fees and costs, the court awarded

only $150,223.26. The district court disallowed some work as

duplicative, some as having been performed by attorneys when

the court thought it should have been done by paralegals, and

further reduced the award because of the plaintiff's "lack of

success."

Occidental and Chavez appeal from the jury verdict

in cases number 96-1416 and 97-1444, alleging a host of

errors and demanding a new trial. Defense counsel Inserni

appeals in case number 95-2027 from the contempt order issued

against him during the trial. Plaintiff cross-appeals, in

case number 97-1445, arguing that the district court's award

of attorney's fees was in error and insufficient.

III. Appeal of Occidental and Chavez

A. Jury Inconsistency Argument

Occidental and Chavez's flagship argument, simply

put, is that because the jury did not find either Miranda or

PREPA liable to Rodriguez, Chavez and Occidental cannot be

held liable either. Rodriguez could not have been dismissed

for refusing to submit to (or threatening to complain of)

Miranda's advances, defendants argue, because the jury

verdict shows that Miranda never engaged in the conduct of

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which she complains. This argument is founded upon the

erroneous assumption that the jury's verdict that Miranda and

PREPA are not "liable to plaintiff" under Puerto Rico tort or

constitutional law necessarily means that the jury did not

believe that Miranda made unwanted sexual advances, that

Rodriguez complained of these advances, and that her employer

fired her in response.

The defendants' argument fails, as the jury could

quite plausibly have found a set of facts that would render

Chavez and Occidental, but not Miranda and PREPA, "liable to

plaintiff" on the claims asserted.

In order to evaluate the defendants' arguments, it

is important to understand the nature of the claims brought

against each of the four defendants in this case. Rodriguez

sued the customer, Miranda and PREPA on two theories --

liability under Puerto Rico tort law and violation of

Rodriguez's rights to "privacy and dignity" under the Puerto

Rico Constitution. The jury was instructed that, to find

Miranda liable to the plaintiff in negligence, it had to find

"that there was an act or omission, by fault or negligence,

that caused the plaintiff's injury." See P.R. Laws Ann. tit.

31, 5141 (1991) ("A person who by act or omission causes

damage to another through fault or negligence shall be

obliged to repair the damage so done. Concurrent imprudence

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of the party aggrieved does not exempt from liability, but

entails a reduction in the indemnity.")

For Miranda to be liable under the Constitution of

Puerto Rico, the jury was instructed that it must find that

Miranda "engaged in conduct against the plaintiff which

adversely affected her dignity, honor, or reputation . . . ."

See P.R. Const. art. II, 1 ("The dignity of the human being

is inviolable. . . . No discrimination shall be made on

account of . . . sex . . . ."); P.R. Const. art. II, 8

("Every person has the right to the protection of law against

abusive attacks on his honor, reputation and private or

family life.").

If Miranda was not liable to Rodriguez under these

two theories, then PREPA could not be found liable to

Rodriguez either. PREPA's liability was only in respondeat

superior for the actions of Miranda.

Both of the claims as described to the jury contain

an element of causation. The jury may simply have decided

that Rodriguez's injuries resulted not from Miranda's

actions, but from those of Chavez and Occidental. Thus the

jury may have declined to hold Miranda liable, not because

the jurors did not believe that he made sexual advances, but

rather because they concluded that this behavior did not

itself cause the harms Rodriguez suffered.

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In contrast, the plaintiff asserted four different

theories of liability against Chavez under Puerto Rico law,

none of which is inconsistent with the jury's refusal to hold

Miranda and PREPA liable. In addition to the tort and

constitutional claims described above, Rodriguez sued Chavez

for sex discrimination and retaliatory discharge. Puerto

Rico's Law 100 forbids sex discrimination by employers, and

provides for civil liability and damages. See P.R. Laws Ann.

tit. 29, 146 (1995). Puerto Rico's Law 17 defines sex

harassment as a type of sex discrimination, and forbids

retaliation against persons who "reject" the employer's

sexually discriminatory practices. See P.R. Laws Ann. tit.

29, 155-155l (1995). Under Puerto Rico law, an employer

is held responsible for "the acts of sexual harassment

towards his employees in the work place by persons not

employed by him if the employer or his agents or supervisors

knew or should have known of such conduct and did not take

immediate and adequate action to correct the situation."

P.R. Laws Ann. tit. 29, 155f.

The plaintiff also sought separation pay from

Chavez and Occidental for unjust dismissal under Puerto Rico

Law 80. See P.R. Laws Ann. tit. 29, 185a (1995) ("Every

employee in commerce . . . who is discharged from his

employment without good cause, shall be entitled to receive

from his employer, in addition to the salary he may have

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earned: (a) The salary corresponding to one month, as

indemnity; (b) An additional progressive indemnity equivalent

to one week for each year of service."). Further, in

addition to the same four causes of action under Puerto Rico

law asserted against Chavez, Rodriguez sued Occidental for

sex discrimination under Title VII.

We cannot, based on the jury form, determine which

of Rodriguez's claims against Chavez and Occidental

succeeded. The jury was asked only to answer yes or no as to

whether each defendant was "liable to plaintiff Sandra

Rodriguez." The jury could have properly decided to hold

Chavez and Occidental liable because they discriminated

against Rodriguez on the basis of her sex, or because they

retaliated against her for her complaints about Miranda's

behavior.

Sexual harassment is an unlawful form of sex

discrimination, and both Chavez and Occidental could be held

liable for sex harassment on either of two theories -- quid

pro quo or hostile work environment.

Under the quid pro quo theory, Rodriguez's

continued employment was conditioned on coerced sex, a

condition that was inherently linked to her gender. Puerto

Rico law, see P.R. Laws Ann. tit. 29, 155f, and other

circuits, interpreting Title VII, have said that employers

can be liable for a customer's unwanted sexual advances, if

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the employer ratifies or acquiesces in the customer's

demands. See Folkerson v. Circus Circus Enters., Inc., 107

F.3d 754, 756 (9th Cir. 1997). This is a case in which

Rodriguez's employer not only acquiesced in the customer's

demands, but explicitly told her to give in to those demands

and satisfy the customer. This conduct is clearly an example

of quid pro quo sexual harassment, as Rodriguez's employer

conditioned her future with the company on her responding to

the unwanted sexual demands of a customer.

Under the hostile work environment theory of sex

discrimination, the jury could have reasonably found that

Chavez and Occidental had established a working environment

hostile to women. The jury was instructed that this theory

of sex discrimination "involves forms of sexually-related

misconduct which are severe and pervasive and unreasonably

interfere with work performance or create a hostile,

intimidating or offensive working environment. It can

include demeaning comments or expectations of a certain

sexual behavior in the workplace." This environment would be

a product not only of Chavez's refusal to do anything about

Miranda's advances, but also of incidents such as the 1990

Christmas party.

Likewise, the success of a retaliation claim does

not require that the alleged wrongful conduct itself be

illegal. For her retaliation claim to succeed, Rodriguez

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merely needed to show that she "reasonably believed" that the

conduct of which she complained or threatened to complain

violated Title VII. See Wyatt v. City of Boston, 35 F.3d 13,

15 (1st Cir. 1994); Petitti v. New England Tel. & Tel. Co.,

909 F.2d 28, 33 (1st Cir. 1990); Drinkwater v. Union Carbide

Corp., 904 F.2d 853, 865 (3d Cir. 1990) (noting that a long

line of cases holds that a "plaintiff establishes a

retaliation claim if she shows that she had a reasonable

belief that the employer was engaged in an unlawful

employment practice and that the employer retaliated against

her for protesting that practice."). The jury may have found

that the close relationship between PREPA and Occidental made

it reasonable for Rodriguez to believe that Miranda's

unwanted advances constituted unlawful sexual harassment

about which she had a right to complain.

B. Peremptory Challenges

Defendants challenge the district court's

disallowance of two of their peremptory challenges. Because

this determination is fact-sensitive, we review it for clear

error. See Brewer v. Marshall, 119 F.3d 993, 1004-05 (1st

Cir. 1997); see also Purkett v. Elem, 514 U.S. 765, 767

(1995) (per curiam). Initial juror selection in this case

began with a panel of sixteen jurors containing nine men and

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seven women. The court then granted each side four

peremptory challenges, leaving eight jurors.

Plaintiff objected to the defendants' use of all

four of their peremptory challenges to exclude women from the

jury panel, arguing that these peremptory challenges were a

violation of the Equal Protection Clause under J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson

v. Kentucky, 476 U.S. 79 (1986) to gender-based peremptory

challenges in civil cases). The defendants explained their

challenges on gender-neutral grounds, but the district court

disallowed two of the peremptory challenges, stating that the

explanations were merely a pretext for unlawful

discrimination.

The district court noted, properly, that its

decision to disallow the two peremptory challenges was based

on the totality of the circumstances of the litigation. See

Hernandez v. New York, 500 U.S. 352, 364 (1991). Upon

examination of the judge's justification and the trial

record, we do not find his decision to disallow the

peremptory challenges to be clearly erroneous.

C. Evidentiary Rulings

We review a district court's evidentiary rulings

for abuse of discretion. See General Elec. Co. v. Joiner,

No. 96-188, 1997 WL 764563, at *3 (U.S. Dec. 15, 1997); A.W.

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Chesterton Co. v. Chesterton, 128 F.3d 1, 9 (1st Cir. 1997).

Errors in evidentiary rulings are harmless if it is highly

probable that the error did not affect the outcome of the

case. See Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 29-

30 (1st Cir. 1992).

1. Rulings under Rule 412

Defendants continually sought to make an issue of

plaintiff's sexual history. In the course of this

litigation, defendants attempted to paint the plaintiff as

sexually insatiable, as engaging in multiple affairs with

married men, as a lesbian, and as suffering from a sexually

transmitted disease.2 Defendants claimed that plaintiff had

an affair with a married man that caused her to become

distracted from work, and led to the lapses for which she was

fired.

Fed. R. Evid. 412 was designed to prevent misuse of

a complainant's sexual history in cases involving "alleged

sexual misconduct." In a civil case, the sole exception to

Rule 412's prohibition of evidence offered to prove "that any

alleged victim engaged in other sexual behavior" or "any

alleged victim's sexual predisposition" is that

evidence offered to prove the sexual behavior
or sexual predisposition of any alleged
victim is admissible if it is otherwise

2. During discovery, defendants requested that plaintiff
submit to an AIDS test, apparently to substantiate their
allegations of promiscuity. The request was denied.

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admissible under these rules and its

probative value substantially outweighs the

danger of harm to any victim and of unfair

prejudice to any party. Evidence of an

alleged victim's reputation is admissible
only if it has been placed in controversy by
the alleged victim.

Fed. R. Evid. 412(b)(2) (emphasis added). Rule 412 thus

reverses the usual approach of the Federal Rules of Evidence

on admissibility by requiring that the evidence's probative

value "substantially outweigh" its prejudicial effect.

Rule 412 mandates procedural safeguards for the

introduction of such evidence under the 412(b)(2) exception.

A party intending to offer such evidence must file a motion

specifically describing the evidence and its purpose at least

fourteen days before trial, serve the motion on all parties,

and notify the alleged victim. Before admitting the evidence

the court must conduct an in camera hearing to afford the

victim and parties a right to be heard. See Fed. R. Evid.

412(c).

The district court ruled that evidence concerning

plaintiff's moral character or promiscuity and the marital

status of her boyfriend was inadmissible under Rule 412. But

the court allowed defendants to introduce evidence directly

relevant to their theory that plaintiff's relationship

distracted her from work. The court also held that evidence

concerning plaintiff's allegedly flirtatious behavior toward

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Miranda was admissible to determine whether Miranda's

advances were in fact "unwanted."

These evidentiary rulings were well within the

district court's discretion. The court struck an acceptable

balance between the danger of undue prejudice and the need to

present the jury with relevant evidence, particularly in

light of Rule 412's special standard of admissibility.

2. Rulings under Rule 403

Nor is there any abuse of discretion in the

district court's other evidentiary rulings. Under Fed. R.

Evid. 402, all relevant evidence is admissible unless

otherwise provided by federal law. See Fed. R. Evid. 402.

Under Fed. R. Evid. 403, relevant evidence may be excluded if

its probative value is "substantially outweighed" by the

danger of prejudice or confusion. See Fed. R. Evid. 403.

Defendants challenge the exclusion of certain

telephone records, rebuttal evidence by some of plaintiff's

co-workers, and an answering machine tape. We agree with the

district court that the testimony and phone records would

have been, at best, cumulative. The district court conducted

lengthy proceedings over the admissibility of an answering

machine tape produced by Chavez that purportedly contained

several messages from Rodriguez to Chavez that could imply

that they had been intimate. The defendants argue that this

piece of evidence would have shown that "plaintiff treated

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Chavez affectionately and could not have been complaining of

sexual harassment." An FBI analysis of the voice on the tape

was inconclusive. The court ruled that the tape was

inadmissible under Fed. R. Evid. 403, and we agree that this

dubious evidence had minimal probative value, and had great

potential to confuse the jury.

Defendants complain of a "double standard" because

the district court allowed information introduced by

plaintiff while excluding evidence introduced by defendant.

The court allowed evidence concerning the close ties between

Occidental and PREPA, including evidence of political

donations, Occidental's tax status, the dancing show at the

1990 Christmas party, and a letter regarding Occidental's

sales volume. In fact, as to the excluded evidence, Fed. R.

Evid. 412 required the district court to apply a stricter

standard with regard to admission of evidence of plaintiff's

sexual history than to the evidence admitted under the more

liberal standard of Fed. R. Evid. 402 & 403. This evidence

was directly relevant to the theory of Rodriguez's case --

that Chavez and Occidental were willing to fire her when she

complained about Miranda in order to maintain their close

relationship with Miranda and PREPA.

Having examined each of the district court's

evidentiary rulings, we find none that represents an abuse of

its discretion. Even if the court's exclusions were error,

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none of the excluded evidence would have had an impact on the

outcome of the trial, as it would have at best been

duplicative of evidence that was admitted.

D. Claims of Judicial Bias

Occidental and Chavez argue that the district court

judge's admonitions to defense counsel evince bias, which

tainted the jury verdict. They claim that this bias was

further demonstrated by the judge's rulings on defense

counsel's peremptory challenges, exclusion of evidence, and

his sanctioning defense counsel for violating an evidentiary

ruling under Fed. R. Evid. 412. The contested rulings are

discussed elsewhere, and they were entirely proper. Most of

the comments appellants complain of were made outside the

hearing of the jury.

At the very latest, this claim should have been

raised in defendants' Rule 50 motion before the district

court. It is therefore waived. See In re Abijoe Realty

Corp., 943 F.2d 121, 126-27 (1st Cir. 1991). Claims of

judicial partiality must be raised at the earliest moment

that a litigant becomes cognizant of the purported bias, and

certainly not for the first time on appeal. See id.; cf. In

re Marisol Martinez-Catala, 129 F.3d 213, 219 (1st Cir. 1997)

(explaining procedures for judicial disqualification and

noting that "disqualification is almost never required where

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the judge's opinions are based on the proceedings"). A party

may not simply wait to see what outcome he or she receives in

a trial before an allegedly biased judge. See In re United

Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960).

To allay any suspicions of judicial taint, however,

we note that, having read the entire trial record, we find

none. The isolated, occasional comments cited by appellants

fall far short of prejudice and do not come close to

supporting a contention that defendants were deprived of a

fair trial. See United States v. Devin, 918 F.2d 280, 294-95

(1st Cir. 1990); Aggarwal v. Ponce Sch. of Med., 837 F.2d 17,

22 (1st Cir. 1988). The judge's scattered critical comments

were largely made out of the jury's hearing, and usually were

in direct response to defense counsel's interruptions and

unsuitable conduct. See United States v. Polito, 856 F.2d

414, 418 (1st Cir. 1988) ("Charges of partiality should be

judged not on an isolated comment or two, but on the record

as a whole."). The entirety of the record reveals that the

judge evinced not bias, but rather a desire to conduct the

trial in as civil a manner as possible. That desire was

evidently not shared by counsel for the defendants, and

rebukes for this lack of civility were entirely warranted.

IV. The Sanction Order Against Counsel

Attorney Inserni appeals the district court's

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decision to sanction him for violating a court order

prohibiting mention of matters such as the marital status of

plaintiff's boyfriend without first clearing such evidence

with the court to allow it to make a final Rule 412 ruling.

During plaintiff's testimony, the court ruled that the

marital status of plaintiff's boyfriend was not admissible,

and admonished counsel to approach the bench before asking

any question that might raise concerns under Rule 412.

Attorney Inserni subsequently asked plaintiff's psychologist,

in front of the jury, "Did [the plaintiff] tell you during

your interviews or during your clinical work on her case, did

she ever mention to you that she had multiple relationships

with married men?"3 The district court properly noted that

this question violated its ruling, rebuked counsel after

first dismissing the jury, and fined him $500. The court

later instructed the jury that counsel had violated a court

order and jurors were to disregard the question. This

response was fully justified, and we find no error. See

Polito, 856 F.2d at 418. Inserni shall pay the costs of his

appeal to plaintiff.

V. Plaintiff's Appeal

Rodriguez appeals the district court's reduction of

3. We add, as the district court understood, that defense
counsel knew from her deposition that the psychologist would
answer "no" to that question.

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her attorney's fees and costs award from approximately

$440,000 to $150,223.26. As noted above, the district court

justified this reduction on several grounds: duplication of

effort by plaintiff's attorneys, the use of attorneys for

"paralegal work," and the plaintiff's lack of success. The

court uniformly cut the attorneys' requested hourly rates by

fifteen dollars, except for Attorney Berkan's out-of-court

rate, which it cut by ten dollars. The court reduced the fee

request to $346,211.53, and then reduced this amount by sixty

percent because of the plaintiff's "lack of success."

Starting with the "lodestar" calculation of the

hours worked by each attorney multiplied by the attorney's

hourly rate, the court deducted time that it determined was

duplicative or unnecessary. The court deducted 97 hours of

attorney time because it viewed the time spent on indexing

depositions as excessive, and agreed with defendants that the

work was a "paralegal task." The court noted a number of

entries on plaintiff's counsels' time sheets that suggested

duplicative efforts. The court calculated that these

duplicative efforts totaled 120 hours, and deducted this

amount. Thirteen more hours were deducted for excessive time

in preparing the attorney's fees petition.

The court determined that it was excessive for

three attorneys to be present at trial, and adjusted the

hours so that the time compensated amounted to that of only

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two attorneys at any given time. The court uniformly reduced

the requested hourly rates of Rodriguez's attorneys by

fifteen dollars, except for Attorney Berkan's out-of-court

hourly rate, which it reduced by ten dollars. Because it

determined that the plaintiff enjoyed only limited success in

each of her theories of recovery, the court reduced the

lodestar figure by sixty percent of the total amount.

Fee awards are reviewed deferentially, and will be

disturbed only for mistake of law or abuse of discretion.

See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d

331, 336 (1st Cir. 1997); Lipsett v. Blanco, 975 F.2d 934,

936 (1st Cir. 1992) (noting that "because determination of

the extent of a reasonable fee necessarily involves a series

of judgment calls, an appellate court is far more likely to

defer to the trial court in reviewing fee computations than

in many other situations."). Even under this deferential

standard, however, we conclude that the district court's

attorney's fees orders must be vacated.

A. Lack of Success

The district court reduced the fee award by sixty

percent for "lack of success" because Rodriguez did not

prevail on all of her claims and she did not receive the full

amount of damages she sought. According to the district

court, the plaintiff "ultimately succeeded on her claim of

retaliation" and while the "unsuccessful claim, the sexual

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harassment claim, was linked to the successful claim of

retaliation, this fact alone does not preclude any reduction

based on the failure to establish sexual harassment."

The district court did not explain how it had come

to the conclusion that the jury had decided Rodriguez's

claims in this way. When a fee award is reduced

substantially, a more detailed explanation is in order. See

Brewster v. Dukakis, 3 F.3d 488, 493 (1st Cir. 1993) ("As a

general rule, a fee-awarding court that makes a substantial

reduction in either documented time or authenticated rates

should offer reasonably explicit findings, for the court, in

such circumstances, 'has a burden to spell out the whys and

wherefores.'") (quoting United States v. Metropolitan Dist.

Comm'n, 847 F.2d 12, 18 (1st Cir. 1988)). As our discussion

in part III.A above demonstrates, the jury could have found

that Rodriguez's sex harassment claims against Chavez and

Occidental succeeded, on either a quid pro quo or hostile

environment theory.

The district court may have made the same mistake

that the defendants have made in arguing that, because

Miranda was not found liable, no "sex harassment" occurred.

As noted, this conclusion is not mandated by the jury's

general verdict. Neither did Rodriguez's sexual harassment

claims fail when the district court dismissed her claims

under Title VII against Chavez, as she continued to pursue

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sex discrimination claims under Puerto Rico law. Indeed, it

appears Rodriguez has "prevailed up and down the line" on her

claims against Chavez and Occidental, in which case "a

claims-based, results-obtained fee reduction is wholly

inappropriate." Coutin, 124 F.3d at 340.

The district court's reduction of the lodestar

figure by sixty percent of the total because of the

plaintiff's "lack of success" was error. Three measures of

"success" pertain to civil rights lawsuits such as this one:

"plaintiff's success claim by claim, . . . the relief

actually achieved, . . . [and] the societal importance of the

right which has been vindicated." Coutin, 124 F.3d at 338.

The plaintiff was clearly successful under the latter two

definitions.

Rodriguez received a substantial monetary award

constituting full compensation for her injuries, as well as

punitive damages. The jury awarded Rodriguez all three types

of monetary compensation provided for in the verdict form:

compensation for back pay and/or front pay and other related

job benefits; punitive damages; and compensatory damages for

her emotional and/or mental suffering.

Congress has encouraged private suits to counter

sex discrimination through the award of attorney's fees to

successful litigants. See City of Riverside v. Rivera, 477

U.S. 561, 574-75 (1986) (plurality opinion); Coutin, 124 F.3d

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at 337. In a civil rights lawsuit, "[t]he result is what

matters," Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), and

in this case plaintiff apparently vindicated her Title VII

claim and received substantial damages. See also Aubin v.

Fudala, 782 F.2d 287, 291 (1st Cir. 1986) ("[A] plaintiff

should receive significant fees when he has won a partial

victory on a civil rights claim while receiving substantially

the relief he there sought . . . .") (emphasis in original).

Both the plaintiff's employer company and her boss were found

liable for the harms she suffered.

We do not view plaintiff's claims regarding

Miranda's unwanted sexual advances as "unrelated" to the

claims upon which she prevailed such that attorney's fees

should not be awarded for pursuing these claims. See

Hensley, 461 U.S. at 434-35. Indeed, the close relationship

between Occidental and PREPA, and between Chavez and Miranda,

was a foundational element of her claims against Chavez and

Occidental, and would have needed to be developed even if

plaintiff had not sued Miranda or PREPA. It was this close

relationship among the defendants that made credible

plaintiff's contentions that her boss asked her to respond to

Miranda's sexual advances because Miranda and PREPA were

valued customers, and that he fired her when she refused.

See id. at 440 ("Where a lawsuit consists of related claims,

a plaintiff who has won substantial relief should not have

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his attorney's fee reduced simply because the district court

did not adopt each contention raised."); Scarfo v. Cabletron

Sys., Inc., 54 F.3d 931, 962-66 (1st Cir. 1995). Rodriguez's

unsuccessful claims were based both on a common core of facts

and on related legal theories. See Hensley, 461 U.S. at 435.

While it is true that plaintiff's fee request was

more than twice the damages awarded, the Supreme Court has

held that the size of the verdict does not bar the recovery

of large attorney's fees awards. See City of Riverside, 477

U.S. at 574-75; see also Coutin, 124 F.3d at 338 (discrepancy

between award requested and received does not "amount to more

than one element in the constellation of factors that the

court considers when determining the quality of results

obtained"); Foley v. City of Lowell, 948 F.2d 10, 19 (1st

Cir. 1991). Thus, because the district court failed to

articulate its reasons for finding "lack of success," and no

sound reasons are apparent in the record, we must vacate its

order and remand for reconsideration.

B. Other Fee Reductions

On remand, the district court should also revisit

the reductions for duplicative efforts and paralegal work.

Of course, ordinarily we defer to the court's judgment on

these matters, because staffing issues are usually "best

resolved by the trial court's application of its intimate,

first-hand knowledge of a particular case's nuances and

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idiosyncracies." Lipsett, 975 F.2d at 939. In setting fees,

the district court has "broad discretion to determine 'how

much was done, who did it, and how effectively the result was

accomplished.'" Id. (quoting Wagenmann v. Adams, 829 F.2d

196, 224 (1st Cir. 1987)). In the "gray areas," such as

deciding whether a given task is properly entrusted to a

paralegal, "the district court's judgment carries the

greatest weight." Id. at 940. Clerical tasks ought not to

be billed at lawyer's rates, even if a lawyer performs them.

See id.

Time spent by two attorneys on the same general

task is not, however, per se duplicative. Careful

preparation often requires collaboration and rehearsal, and

the court should not reward defendants for their vehement

"Stalingrad defense," a tactic they have continued to employ

on appeal. Id. at 939. Indeed, because a litigant's

staffing needs and preparation time will often "vary in

direct proportion to the ferocity of her adversaries'

handling of the case, this factor weighs heavily in the

balance." Id. In this case, the record reveals that the

defense was indeed extreme. As we find that the district

court's unexplained reduction for lack of success

independently requires a remand, we consider the entire issue

open for reconsideration and need not decide whether the

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other alleged errors in calculating attorney's fees would

alone prompt reversal.

VI. Conclusion

To conclude, we find any residuum of claimed errors

to be without merit and unworthy of extended discussion. The

jury verdict is affirmed. The award of attorney's fees is

vacated, and we remand this case for recalculation of the

attorney's fees award in accordance with this opinion. Costs

are awarded to Rodriguez.

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