Rodriguez-Torres v. Caribbean Forms Manufacturer, Inc.

United States Court of Appeals
For the First Circuit

Nos. 03-2223, 03-2573

MIGDALIA RODRIGUEZ-TORRES; JOSE A. MARTINEZ-VEGA;
CONJUGAL PARTNERSHIP RODRIGUEZ-MARTINEZ

Plaintiffs, Appellees/Cross-Appellants,

v.

CARIBBEAN FORMS MANUFACTURER, INC.; RAMALLO BROTHERS
PRINTING, INC.; CARLOS RESTREPO, in his personal capacity
as an executive of Caribbean Forms Manufacturer, Inc.

Defendants, Appellants/Cross-Appellees,

DIRECT MEDIA TECHNOLOGIES; PEDRO J. TORRES, in his
personal capacity

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Howard, Circuit Judges,

and Carter,* Senior District Judge.

Camilo K. Salas, III with whom Niles, Salas, Bourque &
Fontana, L.C., John F. Nevares and John F. Nevares and Associates

*
Of the District of Maine, sitting by designation.
P.S.C. were on brief, for appellants.
Carlos Rodriguez Garcia with whom Rodriguez Garcia PSC was on
brief, for appellees.

February 22, 2005
 HOWARD, Circuit Judge. Migdalia Rodriguez-Torres, her

husband, Jose A. Martinez-Vega, and their conjugal partnership

filed this suit against Rodriguez's former employers, Ramallo

Brothers Printing, Inc. ("Ramallo") and Caribbean Forms

Manufacturer, Inc. ("Caribbean Forms"), and her supervisor, Carlos

Restrepo, alleging that she was unlawfully terminated from her

employment on the basis of age and gender.1 The complaint alleged,

inter alia, violations of Title VII, 42 U.S.C. § 2000e et seq.,

Puerto Rico Law 69, 29 P.R. Laws Ann. § 1321 et seq. ("Law 69") and

Puerto Rico Law 100, 29 P.R. Laws Ann. § 146 et seq. ("Law 100")

(collectively "the Commonwealth claims").2

The case proceeded to trial and concluded with a jury

verdict finding Ramallo liable under Title VII and Puerto Rico law

for terminating Rodriguez's employment on account of gender. The

jury awarded Rodriguez $250,000 in emotional distress damages and

$105,000 in backpay. The jury was not asked to specify whether

these awards were for the Title VII or the Commonwealth claims.

1
The parties stipulated that Ramallo and Caribbean Forms were
a single employer for purposes of this litigation. After trial,
the district court ruled that Restrepo was not personally liable
for damages on the ground that there was no individual liability
under either Title VII or Puerto Rico law. This ruling was not
challenged on appeal. Therefore, we refer to Ramallo as the sole
defendant.
2
Rodriguez brought other claims against Ramallo, but the
district court disposed of them at various stages of the
proceedings and these rulings are not challenged on appeal.

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The jury also awarded Rodriguez $250,000 in punitive damages under

Title VII.

Both parties filed post-trial motions. Ramallo moved

for judgment as a matter of law or a new trial. It also sought to

reduce the Title VII award based on the $200,000 statutory cap on

damages and to eliminate the award for the Commonwealth claims

because the total exceeded the Title VII cap. Rodriguez requested,

inter alia, that the court award front pay and attorney's fees.

The district court declined to enter judgment as a matter

of law or order a new trial. Rodriguez-Torres v. Caribbean Forms

Mfr., Inc., 286 F. Supp. 2d 209, 213-27 (D.P.R. 2003). Regarding

damages, the court recognized that the Title VII compensatory and

punitive damages award was capped at $200,000 and enforced the cap

by allocating the damages so as to maximize Rodriguez's recovery.

Id. at 218 (citing 42 U.S.C. § 1981a(b)(3)(c)). It allocated

$249,999 of the emotional distress award to the Commonwealth claims

and $1 to the Title VII claim. Id. at 219. It also awarded

Rodriguez $199,999 in punitive damages under Title VII. Id. The

court then doubled the damage award on the Commonwealth claims as

required by Puerto Rico law but declined to award front pay. Id.

at 220-21. The court did not award attorney's fees. Thus, the

court entered a final judgment in favor of Rodriguez under Title

VII for $200,000 in compensatory and punitive damages, $105,000 in

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backpay under Title VII,3 and for $499,998 in compensatory damages

for the Commonwealth claims. The parties have cross-appealed. We

affirm in all respects but one.

I.

We set forth the facts in the light most favorable to the

verdict. See Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288,

292 (1st Cir. 1999). Ramallo was a commercial printing company

operating in Puerto Rico that produced envelopes, books,

encyclopedias, and directories. In addition, Ramallo executed

large-scale mailings of shopping circulars and similar printed

items on behalf of its clients. Caribbean Forms was a division of

Ramallo.

On May 27, 1997, Rodriguez interviewed for a position at

Ramallo and was hired, on a temporary basis, for the position of

mailing supervisor. After a month, Rodriguez was given a raise and

her appointment was extended.

Following a positive evaluation in September 1997,

Rodriguez was given another raise and was promoted to be the

production manager for the newly established Direct Media

Technology Division ("DMT"). DMT was established to improve

Ramallo's ability to coordinate large-scale mailings. On August

3
Backpay is not subject to the Title VII cap. See 42 U.S.C.
§ 1981a(b)(3).

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21, 1998, Rodriguez and DMT were transferred from Ramallo to

Caribbean Forms.

Immediately after the transfer, Rodriguez continued to

report to her previous supervisor at the Ramallo offices. In

October 1998, however, Ramallo executives informed Carlos Restrepo,

the vice-president of Caribbean Forms, that he should supervise all

aspects of DMT. On November 10, 1998, Rodriguez was transferred

from the Ramallo payroll to the Caribbean Forms payroll, and her

personnel file was shipped from Ramallo to Caribbean Forms.

According to Rodriguez, on this date, Restrepo became her

supervisor, although she had been working with him since DMT moved

to Caribbean Forms.

The day after Restrepo assumed supervisory authority over

Rodriguez, he sent her a memorandum questioning whether she

possessed the requisite knowledge of postal procedures for her

position and criticizing her for not sufficiently communicating

with him about the activity in DMT. Later that day, Rodriguez

delivered Restrepo a responsive memorandum. After this written

exchange, the two met alone in Restrepo's office.

During this meeting, Restrepo and Rodriguez discussed

various problems in DMT. As the discussion progressed, tensions

escalated. Restrepo told Rodriguez that "women were good for

nothing, and that is why he wanted to have male employees." This

was not the first time that Restrepo had made such gender-related

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comments. A week earlier, he had derogatorily called Rodriguez an

"old woman." According to Rodriguez, Restrepo made such comments

frequently, and when she told him that such comments were

disrespectful, he responded that "men do their work better than

women."

Six days after that meeting, Rodriguez began a one-month

medical leave of absence because of a back injury. Rodriguez

returned from leave on December 16, 1998. Late in the afternoon on

that day, Rodriguez met with Carmen Martinez, the Caribbean Forms

human resources manager. Martinez told Rodriguez that the company

was terminating her employment because it was eliminating her

position. Restrepo acknowledged, however, that he ordered Martinez

to fire Rodriguez solely because of her poor performance as DMT

production manager.

After Rodriguez's termination, Pedro Torres (Rodriguez's

assistant) and Restrepo performed Rodriguez's duties.

Approximately a year after Rodriguez's termination, Ramallo

eliminated DMT because it was not profitable.

II.

Ramallo challenges the judgment on several grounds. It

claims that the district court should have dismissed all of the

counts as a matter of law or ordered a new trial, that the court

made erroneous and prejudicial evidentiary rulings, and that the

court awarded excessive damages.

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 A. Judgment as a Matter of Law

We review de novo the district court's denial of

Ramallo's motion for judgment as a matter of law. See Marrero v.

Goya of P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). We examine the

evidence presented at trial in the light most favorable to

Rodriguez. See White v. N.H. Dep't of Corrections, 221 F.3d 254,

259 (1st Cir. 2000). We "may not consider the credibility of

witnesses, resolve conflicts in testimony or evaluate the weight of

the evidence." Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.

1996). Our review "is weighted toward preservation of the jury

verdict, for we must affirm unless the evidence was so strongly and

overwhelmingly inconsistent with the verdict[] that no reasonable

jury could have returned [it]." Crowley v. L.L. Bean, Inc., 303

F.3d 387, 393 (1st Cir. 2002) (citation and quotation marks

omitted).

1. Title VII

Ramallo asserts that it was entitled to judgment on the

Title VII count because Rodriguez failed to establish the four

McDonnell Douglas elements necessary to make out a prima facie case

and thereby shift the burden of production to Ramallo to articulate

a non-discriminatory reason for its action. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). The district court rejected

this argument on the ground that Rodriguez had introduced "direct

evidence" of discriminatory intent, rendering McDonnell Douglas

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inapplicable. On appeal, Ramallo says the case was tried under the

McDonnell Douglas framework and there was no jury instruction about

a direct evidence theory, so the district court could not shift

course post trial. We need not address this contention because we

uphold the jury verdict under McDonnell Douglas. See McMillan v.

Mass. Soc. for Prevention of Cruelty of Animals, 140 F.3d 288, 298

n.3 (1st Cir. 1998) (stating that the court of appeals may affirm

the district court's ruling on a motion for judgment as a matter of

law on any ground manifest in the record).

The district court instructed the jury to evaluate the

evidence by applying the McDonnell Douglas burden-shifting

framework. See McDonnell Douglas, 411 U.S. at 802. Under this

framework, the plaintiff must first establish a prima facie case of

discrimination. See id. Once the plaintiff satisfies the prima

facie requirements, the burden of production shifts to the

defendant to articulate a legitimate non-discriminatory reason for

its action. See id. If the defendant provides such an

explanation, the plaintiff must then demonstrate that the

defendant's proffered reason was pretext for discrimination. See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47

(2000). At all times, the plaintiff bears the ultimate burden of

persuading the trier of fact that the defendant intentionally

discriminated against her. See Texas Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981).

-9-
 Because employment discrimination cases arise in a

variety of contexts, the prima facie elements must be tailored to

the given case. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512

(2002). In a wrongful termination case, the plaintiff must show

that (1) she was within a protected class, (2) possessed the

necessary qualifications and adequately performed her job, (3) but

was nevertheless dismissed and (4) her employer sought someone of

roughly equivalent qualifications to perform substantially the same

work. See Byrd v. Ronayne, 61 F.3d 1026, 1031 (1st Cir. 1995).

Ramallo claims that the proof on this last element was

lacking. It argues that, because the evidence showed that after

Rodriguez's termination, her duties were performed by current

Ramallo employees, Rodriguez failed to establish that her employer

sought someone of equivalent qualifications to replace her. In

like fashion, the district court instructed the jury that the

fourth element of the prima facie case is not satisfied "merely

because another employee is assigned to perform plaintiff's duties

in addition to his/her own duties." According to the district

court, "a person is replaced only when another employee is hired or

reassigned to perform the plaintiff's duties." Rodriguez did not

object to these instructions.

Measured against this standard, Rodriguez failed to

establish a prima facie case. The evidence did not show that

Ramallo hired an outside employee or formally designated one of its

-10-
present employees as Rodriguez's replacement. Rather, Rodriguez

demonstrated that Ramallo assigned her duties to two of its current

employees without designating a specific replacement. Under the

instructions then, there was insufficient evidence to support the

verdict.

Ordinarily a jury instruction given without objection

becomes the law of the case and establishes the standard by which

the sufficiency of the evidence is measured on appeal. See Scott-

Harris v. City of Fall River, 134 F.3d 427, 442 & n.16 (1st Cir.

1997), rev'd on other grounds, 523 U.S. 44 (1998). We do, however,

recognize a narrow exception for jury instructions that are

patently incorrect. See Foster-Miller, Inc. v. Babcock & Wilcox

Canada, 210 F.3d 1, 8 (1st Cir. 2000). Where the jury was, without

doubt, wrongly instructed, we apply the proper legal standard in

assessing the evidentiary support for the verdict. See United

States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir. 1999).

This exception applies here. We have held several times

that a plaintiff need not demonstrate that a new employee was hired

or a current employee was formally designated as a replacement in

order to satisfy the fourth prong of the prima facie case. We

first stated this principle in Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979). There, in the course of describing replacement as

one of the prima facie elements in a wrongful termination case, we

cautioned that "[a] replacement need not be sought from outside the

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company . . . nor need he be designated formally as such." Id. at

1013 n.11.

So too in Kale v. Combined Ins. Co. of Am., 861 F.2d 746,

760 (1st Cir. 1988). Citing Loeb, we held that evidence that

"plaintiff's job functions were absorbed by several different

employees of defendant" was sufficient to establish the fourth

prima facie element. Id. We reaffirmed this principle in Keisling

v. Ser-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994),

on facts similar to Kale.

Applying this authority, the jury should not have been

instructed that Rodriguez had to prove that Ramallo hired a new

employee or designated a current employee as Rodriguez's

replacement in order to satisfy the fourth element of the prima

facie case.4 Rather, to establish the replacement element,

4
Our opinion in Le Blanc v. Great Am. Ins. Co., 6 F.3d 836
(1st Cir. 1993) does not suggest otherwise. We stated there that
a "discharged employee is not replaced when another employee is
assigned to perform the plaintiff's duties, or when the work is
redistributed among other existing employees already performing
related work." Id. at 846. In Le Blanc, we were addressing an
argument completely different from the one made here. The
employer in Le Blanc articulated as the non-discriminatory reason
for the employee's discharge that the employee was included in a
reduction-in-force. Id. The employee argued that this reason was
a pretext for discrimination because he was replaced internally and
therefore his position was not eliminated. Id. Using the language
quoted above, we rejected the employee's argument. We reasoned
that having current employees fill the discharged employee's role
is consistent with a reduction-in-force rationale while hiring
outside replacements suggests that the reduction-in-force rationale
was a sham because the position was not in fact eliminated. Id.
Thus, in a reduction-in-force case, an employee, trying to prove
pretext on the ground that he was replaced, must prove that the

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Rodriguez had to show that Ramallo had a continuing need for the

work that she was performing prior to her termination. See

Keisling, 19 F.3d at 760. She did not, however, have to show that

the replacement was new to the company or specially designated as

such. See Loeb, 600 F.2d at 1013 n.11. Measured against this

standard, the proof that Restrepo and Torres assumed Rodriguez's

tasks, in addition to performing their original duties, was

adequate to establish the final element of the prima facie case.5

In addition to claiming that Rodriguez failed to

establish a prima facie case, Ramallo argues that Rodriguez did not

present sufficient evidence to show that her termination was

motivated by gender animus. The district court disagreed on the

ground that Restrepo's comments provided the jury with a reasonable

basis for finding a gender-motivated discharge.

Interpreting the facts in the light most favorable to

Rodriguez, Restrepo assumed supervision over Rodriguez on November

replacement came from outside the company. This ruling has nothing
to do with the issue presented here, namely, the necessary proof
for the fourth prong of the prima facie case.
5
Our discussion here is limited to stating the proper standard
for the replacement element of the prima facie case in a wrongful
termination action. At the second stage of the McDonnell Douglas
framework, an employer may justify a termination as non-
discriminatory on the ground that it dismissed the employee because
the other existing employees could adequately perform the
plaintiff's work. See, e.g., Le Blanc, 6 F.3d at 840. Ramallo,
however, has not advanced such an explanation for Rodriguez's
termination. Rather, as set forth above, it has claimed only that
it terminated Rodriguez because she was a poor performer.

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10, 1998. The next day, Restrepo and Rodriguez met alone to

discuss Restrepo's criticisms of her performance. During that

meeting, Restrepo said that women "were good for nothing" and that

"he wanted to have male employees." Rodriguez worked another week

before beginning a leave of absence. She returned on December 16,

1998 and was fired that day based on Restrepo's recommendation.

In addition to the comments just mentioned, in early

November 1998, Restrepo derogatorily called Rodriguez an "old

woman" and told her that "men do their work better than women."

Further, near in time to Rodriguez's termination, Restrepo told

Jose Delgado, a United States Postal Service employee who worked

with Restrepo and Rodriguez, that he had to "get rid of the women

at the company."

Ramallo's articulated reason for Rodriguez's termination

was her poor performance as DMT production manager. But based on

the foregoing evidence and the fact that Restrepo was the relevant

decision-maker, the jury was entitled to disbelieve Ramallo's

explanation6 and to conclude that gender bias motivated the

dismissal. See Santiago-Ramos v. Centennial P.R. Wireless Corp.,

217 F.3d 46, 55 (1st Cir. 2000) (comments by a supervisor

questioning whether a woman could work and raise children made

within two weeks of the female employee's termination was

6
Other than Restrepo's testimony, Ramallo introduced no
evidence substantiating its claim that Rodriguez was a poor
performer.

-14-
sufficient to create a jury question on a gender discrimination

claim); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 588-

89 (1st Cir. 1999) (statements by a business owner that "I don't

need minorities" and "I don't have to hire . . . Cape Verdean

people" was sufficient to establish a viable Title VII claim),

abrogated on other grounds, Desert Palace, Inc. v. Costa, 539 U.S.

90 (2003); Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 675-76

(1st Cir. 1996) (statement by a person able to influence the

decisionmaker that the plaintiff was the only Puerto Rican running

a Cuban company was sufficient to create a triable issue of

national origin discrimination). Accordingly, we find no basis for

disturbing the Title VII verdict.

2. Law 69

Ramallo contends that the Law 69 claim should have been

dismissed as time barred. The district court rejected this

argument on the ground that the limitations period was tolled while

Rodriguez's administrative charge was pending with the Equal

Employment Opportunity Commission ("EEOC").

Law 69 prohibits employment discrimination on account of

gender. 29 P.R. Laws Ann. § 1321. This statute does not contain

its own statute of limitations, but the Puerto Rico Supreme Court

has held that the one-year limitation period applicable to Law 100,

Puerto Rico's general employment discrimination statute, applies to

Law 69. See Matos Ortiz v. Commonwealth of P.R., 103 F. Supp. 2d

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59, 63 (D.P.R. 2000) (citing Suarez Ruiz v. Figueroa Colon, 145

P.R. Dec. 142 (1998)). Rodriguez was terminated from her

employment on December 16, 1998 and filed suit on September 8,

2000, more than a year later. So unless the limitations period was

tolled, Rodriguez's claim was untimely.

Puerto Rico law recognizes a special tolling rule for

employment discrimination claims brought pursuant to Law 100. Once

an administrative charge has been filed with the Department of

Labor for the Commonwealth of Puerto Rico and the employer has been

notified of the claim, the tolling effect continues during the

entire pendency of the administrative proceeding. See 29 P.R. Laws

Ann. § 150. The Puerto Rico Supreme Court has extended this rule

to include charges filed with the EEOC. See Matos Molero v. Roche

Prods., Inc., 132 P.R. Dec. 470 (1993). By filing a charge with

the EEOC or the Department of Labor and notifying the employer of

the charge, an employee can stop the running of the limitations

period until the administrative proceeding has concluded. See

Leon-Nogueras v. Univ. of P.R., 964 F. Supp. 585, 588 (D.P.R.

1997). Rodriguez filed her EEOC charge, of which Ramallo had

notice, on May 19, 1999, and the EEOC concluded its administrative

proceeding on June 19, 2000 by issuing Rodriguez a right to sue

letter. Accordingly, if this tolling rule applies, Rodriguez's Law

69 claim would be timely.

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 Ramallo asserts that the special tolling rule for Law 100

does not apply to Law 69. The Puerto Rico Supreme Court has not

addressed this issue, but the local federal district court has said

that "it may be safely assumed" that this tolling rule applies to

Law 69. Id.

There is good reason for this assumption. Both Law 69

and Law 100 serve the purpose of combating gender discrimination in

employment. Indeed, Law 69 is merely an amplification of the

principles contained in Law 100. See Matos Ortiz, 103 F. Supp. 2d

at 64. It is well established then, that Law 69 is interpreted in

pari materia with Law 100. Id. (citing authority). We are

therefore confident that the Puerto Rico Supreme Court would borrow

the tolling rules from Law 100 for Law 69. See Bogosian v.

Woloohojian, 323 F.3d 55, 71 (1st Cir. 2003) (stating that where

state law is undecided the federal court, when practicable, must

make a fair prediction concerning how the state's highest court

would decide if presented with the issue). Because this tolling

rule applies, Rodriguez's Law 69 claim was timely filed.

3. Law 100

For the Law 100 claim, the district court instructed the

jury that the burden of proving that Rodriguez's termination was

not discriminatory shifted to Ramallo if Rodriguez proved that she

was unjustly fired and was a member of a protected class. Relying

on Morales v. Nationwide Ins. Co., 237 F. Supp. 2d 147 (D.P.R.

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2002), Ramallo contends that this burden-shifting instruction

violated Ramallo's right to due process. We review this claim de

novo. See Goodman v. Bowdoin College, 380 F.3d 33, 47 (1st Cir.

2004).

Morales interpreted the Puerto Rico Supreme Court's

decision in Díaz Fontánez v. Wyndham Hotel Corp., 2001 TSPR 141

(2001), as imposing an unconstitutional burden-shifting scheme

under Law 100. According to Morales, Díaz Fontánez held that,

under Law 100, the burden of proof shifted to the employer to prove

that the termination was not discriminatory where the employee

merely proved that she was fired, was a member of a protected

class, and alleged that the termination was unjustified. See 237

F. Supp. 2d at 153-54. Relying on a series of United States

Supreme Court decisions holding that an evidentiary presumption

violates due process unless there is a rational connection between

the facts required to activate the presumption and the ultimate

fact to be proved, the Morales court ruled that merely proving a

termination and membership in a protected class has no rational

connection to the ultimate issue of the existence of discriminatory

animus. Id. at 156-60. Accordingly, Law 100, as interpreted by

Díaz Fontánez, violated due process. Id. at 162.

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 We need not decide whether Morales correctly interpreted

Díaz Fontánez7 or whether Morales' constitutional analysis was

correct. The district court did not instruct the jury in the

manner criticized by Morales. Instead, the court instructed that

for the burden of proof to shift to Ramallo, Rodriguez had to prove

the she was in a protected class, that she was fired, and that the

termination was unjustified. As Morales effectively concedes, see

237 F. Supp. 2d at 159, proof that a plaintiff was unjustly fired

and that she belonged to a protected class is sufficient to

establish a rational connection between these facts and the

ultimate issue of whether the dismissal was unlawfully motivated.

See Alvarez-Fonseca v. Pepsi Cola of P.R., 152 F.3d 17, 27-28 (1st

Cir. 1998) (holding that the burden of proof shifts to the employer

under Law 100 after the employee proves an unjust termination). We

therefore conclude that there was no error in the district court's

Law 100 instruction.

B. Evidentiary and Mistrial Rulings

Evidentiary rulings and denials of motions for a mistrial

are reviewed for abuse of discretion. See Rodriguez-Hernandez v.

Miranda-Velez, 132 F.3d 848, 855 (1st Cir. 1998) (evidentiary

7
After Morales, other decisions from the United States
District Court in Puerto Rico have read Díaz Fontánez more
narrowly, thus avoiding the constitutional issue. See Velez-
Sotamayor v. Progreso Cash & Carry, Inc., 279 F. Supp. 2d 65, 79-82
(D.P.R. 2003); Varlea Teron v. Banco Santander de P.R., 257 F.
Supp. 2d 454, 465-66 (D.P.R. 2003).

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rulings); United States v. De Jesus Mateo, 373 F.3d 70, 72 (1st

Cir. 2004)(mistrial rulings).

1. Evidence of Prior Work Performance

At trial, Rodriguez introduced evidence that she had been

trained concerning United States Postal Service procedures by her

prior employers. She also introduced positive performance

evaluations and proof of raises that she received at Ramallo before

coming under Restrepo's supervision. Ramallo objected to this

evidence as irrelevant. The district court overruled the objection

on the ground that the evidence tended to show that Rodriguez was

qualified and performing up to Ramallo's expectations.

As mentioned above, for Rodriguez to establish a prima

facie case, she had to demonstrate that she possessed the necessary

qualifications and adequately performed her job. See supra at 10.

An employee may meet this burden through proof of positive

performance evaluations and raises earned from the employer. See

Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092 (1st Cir. 1995);

Woods v. Friction Materials, Inc., 30 F.3d 255, 261 (1st Cir.

1994); Keisling, 19 F.3d at 760. Further, because of Ramallo's

claim that Rodriguez lacked certain relevant knowledge to do her

job, the district court acted within its discretion in admitting as

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relevant that Rodriguez obtained this knowledge from prior

employment.8

2. Leave Testimony

Ramallo's second evidentiary challenge concerns the

district court's refusal to grant a mistrial after it struck

Rodriguez's testimony explaining her reason for taking medical

leave a month before her termination. Rodriguez testified at trial

that she took leave because of a back injury from pushing heavy

carts at work after Restrepo refused to assign an employee to

assist her. At her deposition, however, Rodriguez testified that

she took leave because of a back injury that she suffered as a

result of an automobile accident. While the court declined to find

that Rodriguez intentionally lied at trial and denied Ramallo's

motion for a mistrial, it granted Ramallo's motion to strike this

testimony because it wanted to avoid the possibility of a "trial by

ambush."

A mistrial is a last resort that is ordered only if the

demonstrated harm cannot be cured by less drastic means. See

8
Ramallo's reliance on Rodriguez-Cuervos v. Wal-Mart Stores,
Inc., 181 F.3d 15, 20 (1st Cir. 1999), is misplaced. We held in
Rodriguez-Cuervos that evidence of a prior supervisor's exemplary
evaluation was irrelevant to establishing pretext for
discrimination. See id. We reasoned that, because different
supervisors for the same employer may have different expectations,
favorable reviews from another supervisor do not support a finding
of pretext. See id. We did not rule, as Ramallo suggests, that
prior work performance was irrelevant for all purposes in an
employment discrimination case.

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United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995).

Providing the jury with timely and appropriate curative

instructions to ignore the offending testimony is a common way to

obviate the need for ordering a mistrial. See United States v.

Sepúlveda, 15 F.3d 1161, 1184 (1st Cir. 1993). Curative

instructions are sufficient for this purpose unless the offending

testimony could not have been reasonably ignored by the jury

despite the instructions. See De Jesus Mateo, 373 F.3d at 73.

Here, the district court provided the jury with

instructions to disregard Rodriguez's testimony just after she

provided it. Moreover, the stricken testimony was brief and not

particularly clear. In these circumstances, the prejudice to

Ramallo was minimal, and the district court's timely instruction

cured any lingering unfairness.

C. Damages

1. Compensatory Damages

Ramallo argues on appeal that the jury awarded Rodriguez

excessive emotional distress damages in the amount of $250,000. It

contends that this award was excessive because it was based solely

on Rodriguez's own testimony, unsupported by expert medical

evidence.

Where, as here, the defendant failed to challenge a

damage award in the district court, our review is limited to plain

error. See Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st

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Cir. 2003). Thus, Ramallo can only prevail on its claim by showing

that permitting an award of this size to stand was a clear and

obvious error that affected Ramallo's substantial rights and

undermined the fairness, integrity, or public reputation of the

judicial proceedings. See Smith v. Kmart Corp., 177 F.3d 19, 28

(1st Cir. 1999).

Citing Sanchez v. P.R. Oil Co., 37 F.3d 712 (1st Cir.

1994), Ramallo contends that Rodriguez's failure to introduce

expert testimony supporting her emotional distress claim requires

that her award be reduced or eliminated. In Sanchez, we observed

that a district court could account for the plaintiff's failure to

introduce "psychological and psychiatric evidence" in reducing an

emotional distress award. Id. at 724 n.13. We did not, however,

hold that expert medical testimony was a prerequisite for an

emotional distress award. Indeed, we noted that expert evidence

was not required. See id. at 724; see also Koster v. Trans World

Airlines, Inc., 181 F.3d 24, 35 (1st Cir. 1999) ("[T]estimony from

a mental health expert is not required to sustain an award for

emotional distress.").

Rodriguez testified that, after the termination, her

personal life changed "drastically." She experienced financial

difficulties, her marriage suffered, she entered a deep depression

which lasted "for quite some time," and, because of the depression,

she had difficulty finding subsequent employment.

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 This testimony is similar to the plaintiff's emotional

distress testimony in Koster, which we held to be sufficient to

support a $250,000 award. In Koster, the plaintiff testified that,

because of his termination, he had trouble sleeping, he was

anxious, and his family life suffered.9 Koster, 181 F.3d at 35-36.

There was no evidence that he ever sought medical treatment or

suffered long-term depression. Id. at 36. Rodriguez's damages are

certainly on the high side of permissible awards. But given Koster

and the "the esoteric nature of damages for emotional distress," we

cannot say that a $250,000 award was so excessive that permitting

it to stand constituted plain error. Id.

2. Punitive Damages

Although the issue was not raised below, Ramallo urges us

to reverse the punitive damages award for a lack of evidence. We

review for plain error. See Chestnut v. City of Lowell, 305 F.3d

18, 20 (1st Cir. 2002).

Title VII authorizes punitive damages when a plaintiff

demonstrates that the defendant engaged in intentional

discrimination "with malice or reckless indifference to the

federally protected rights of an aggrieved individual." 42 U.S.C.

§ 1981(a)(b)(1). The Supreme Court has provided a three-part

9
Koster involved an emotional distress award under Mass. Gen.
L. ch. 151B. Subsequently, we have relied on Koster in evaluating
the size of emotional distress awards under Title VII. See
O'Rourke v. City of Providence, 235 F.3d 713, 734 (1st Cir. 2001).

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framework for determining whether a punitive damage award is proper

under the statutory standard. See Kolstad v. Am. Dental Assoc.,

527 U.S. 526 (1999).

To qualify for punitive damages, a plaintiff must first

demonstrate that the employer acted with malicious or reckless

indifference to the plaintiff's federally protected rights. See

id. at 535-36. Once a plaintiff has adduced such proof, she then

must establish a basis for imputing liability to the employer.10

See id. at 539. But even if the plaintiff makes these showings,

the employer still may avoid punitive liability by showing that it

engaged in good faith efforts to implement an anti-discrimination

policy. See id. at 545. An employer's good faith effort to

comply with Title VII demonstrates that the employer itself did not

act with the culpable mental state, thus making it inappropriate to

punish the employer for the manager's conduct. See id. at 544-45.

Demonstrating good faith compliance is an affirmative defense, and

the burden of proof therefore rests with the employer. See Romano

v. U-Haul Int'l, 233 F.3d 655, 670 (1st Cir. 2000).

Applying the Kolstad framework and the plain error

standard, we conclude that there was sufficient evidence to permit

a punitive damages award. Restrepo testified that he was aware of

signs posted throughout the Ramallo facility that "talked about the

10
The plaintiff may meet this burden by showing that the
employee who discriminated against her was a managerial agent
acting within the scope of his employment. See id. at 543.

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discrimination and the laws and the rights that the employees

have." From this admission, a reasonable jury could conclude that

Restrepo, one of Ramallo's managerial agents, understood that

firing an employee on account of gender violated federal law. See

DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 38 (1st Cir. 2001)

(stating that "the extent of federal statutory and constitutional

law preventing discrimination . . . suggests that defendants had to

know that such discrimination was illegal").

Moreover, Ramallo introduced little evidence supporting

its compliance defense. In addition to the posted signs, Ramallo

showed that its job application contained a non-discrimination

statement. But there was also evidence that the Caribbean Forms

employee manual did not contain a non-discrimination policy,

Caribbean Forms did not provide its employees with anti-

discrimination training, and Caribbean Form's complaint procedure

was limited to sexual harassment claims. In light of Restrepo's

admission and Ramallo's anemic showing of Title VII compliance, we

have no trouble concluding that permitting a punitive award in

these circumstances was not plain error.11 See Romano, 233 F.3d at

11
Additionally, Ramallo argues that the $199,999 punitive award
was so large that it violated due process under State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), and BMW v. Gore,
517 U.S. 559 (1996). Again, this claim was not raised below and is
therefore reviewed only for plain error. See Rivera-Torres, 341
F.3d at 103. In another employment discrimination case, we noted
that "a punitive damages award that comports with a statutory cap
provides strong evidence that a defendant's due process rights have
not been violated." Romano, 233 F.3d at 673. This is so because

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670 (stating that evidence that the company adopted and distributed

an anti-discrimination policy was not sufficiently compelling to

require that the jury reject awarding punitive damages).

3. Allocation of the Damages

As discussed above, see supra at 4, the jury awarded

Rodriguez $250,000 in compensatory damages without apportioning the

award between the Commonwealth and Title VII claims. The jury also

awarded $250,000 in punitive damages under Title VII. Rodriguez's

eligibility for Title VII compensatory and punitive damages was

capped at $200,000, but no similar cap applied to the Commonwealth

claims. See 42 U.S.C. § 1981a(b)(3)(c). To comply with the Title

VII cap, the district court allocated $1 in compensatory damages

and $199,999 in punitive damages to the Title VII claim.12 It

applied the remainder of the compensatory award ($249,999) to the

Commonwealth claims. Ramallo assigns error to this allocation on

a court deciding whether a punitive award violates due process must
accord substantial deference to legislative judgments concerning
appropriate sanctions for the conduct at issue. BMW, 517 U.S. at
583. Here, the punitive award, after being reduced by the district
court, was within the Title VII statutory cap and thus was within
the range that Congress thought appropriate to punish and deter
malicious or reckless Title VII violations. We cannot say that the
punitive award so clearly violated due process as to constitute
plain error.
12
In this circuit, punitive damages may not be awarded under
Title VII without the award of at least nominal compensatory
damages. See Kerr Selgas v. Am. Airlines, Inc., 69 F.3d 1205,
1214-15 (1st Cir. 1995).

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the ground that the Title VII cap required the district court to

further limit Rodriguez's award.

Several appeals courts have addressed the problem of

allocating damages where the jury provides one damage award for

parallel state and federal discrimination claims but the award

exceeds the applicable federal cap. All have approved the method

employed by the district court here, namely, considering the

unspecified award as fungible between the state and federal claims

and allocating the award so as to maximize the plaintiff's recovery

while adhering to the Title VII cap. See Hall v. Consol.

Freightways Corp., 337 F.3d 669, 678-79 (6th Cir. 2003); Gagliardo

v. Connaught Labs., Inc., 311 F.3d 565, 570-71 (3d Cir. 2002);

Passantino v. Johnson & Johnson, 212 F.3d 493, 509-10 (9th Cir.

2000); Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1349-50

(D.C. Cir. 1999); Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568,

576 (8th Cir. 1997).

Courts have settled on this method for two primary

reasons. First, where the jury makes an unapportioned award, there

is no basis for believing that the jury favored applying the

damages to the federal over the state claim. Indeed, the most

plausible reading of the jury's verdict in such circumstances is

that the jury wanted the specified sum awarded to the plaintiff no

matter the count to which the award was eventually assigned.

Allocating damages in this fashion is thus consistent with the

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district court's general obligation to preserve lawful jury awards

to the extent possible. See Gagliardo, 311 F.3d at 571;

Passantino, 212 F.3d at 510. Second, allocating the excess damages

to the state law claim respects "the local jurisdiction's

prerogative to provide greater remedies for employment

discrimination than those Congress has afforded under Title VII."

Martini, 178 F.3d at 1349-50; see also 42 U.S.C. § 2000e-7

("Nothing in [Title VII] shall be deemed to exempt or relieve any

person from any liability, duty, penalty, or punishment provided by

any present or future law of any State.").

Here, the federal and Commonwealth statutes provide for

liability if Ramallo terminated Rodriguez on account of gender.

They also permit an award of emotional distress damages. Given the

similarity of the claims and the jury's unapportioned award of

emotional distress damages, there is no basis to believe that the

jury favored the federal over the Commonwealth claims. It was

therefore proper for the district court to allocate the

compensatory portion of Rodriguez's award to the Commonwealth

claims so as to preserve as much of the verdict as possible given

the Title VII cap.13

13
If Ramallo thought that the jury might have awarded different
compensatory awards for the Title VII and Commonwealth claims, it
could have asked that the jury specify an individual compensatory
award for each count. It did not do so.

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 4. Double Damages

Puerto Rico Laws 69 and 100 provide a victorious

plaintiff with double damages. 29 P.R. Laws Ann. § 146(a)(1); 29

P.R. Laws Ann. § 1341(a)(1). The doubling of the award is

mandatory. See Campos-Orrego v. Rivera, 175 F.3d 89, 96 (1st Cir.

2001). In accord with Puerto Rico law, the district court doubled

Rodriguez's damages for the Commonwealth claims, awarding her

$499,998. Ramallo argues that the award is duplicative of the

punitive award under Title VII because the doubling provision is

punitive and it is already being punished by the federal punitive

damages award.14 As this claim presents a question of law, our

review is de novo. See Sanchez, 37 F.3d at 725.

As just explained, Ramallo's claim presupposes that the

double damages available under Puerto Rico law are punitive in

nature. Contrary to Ramallo's assumption, this is not at all

clear. Indeed, we have explained that the double damage provision

is most likely compensatory:

[T]he Puerto Rico Supreme Court, in
interpreting the damages provisions of
Law 100, has stated that the
legislature's "intent was to devise a
formula to redress damages arising
from discrimination in employment."
Garcia Pagan v. Shiley Caribbean, 122
D.P.R. 193 (1988). This language fits

14
Ramallo also suggests that that double damage award offends
due process. Because it has not explained the basis for this
argument, we deem it waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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 far more comfortably with an aim to
compensate rather than to punish or
deter.

Id. To the extent that double damages are compensatory, they are

not meant to punish and thus serve entirely different ends than

punitive damages under Title VII. Therefore, if compensatory, the

award of double damages under Puerto Rico law is not duplicative of

the Title VII punitive damages award. See id. (holding that double

damages under Law 100 and punitive liquidated damages under the

AREA are not duplicative).

Moreover, even assuming that double damages are punitive,

it would not benefit Ramallo. In Sanchez, we held that, apart from

constitutional and statutory construction considerations, "there is

no legal concept of duplicative awards that functions as a

limitation on exemplary damages." Id. at 725. Sanchez controls

here, given Ramallo's failure to develop an argument to the

contrary.

III.

On her cross-appeal, Rodriguez raises two issues. She

claims that the district court abused its discretion by not

granting her front pay and that the district court erred by not

granting her attorney's fees.

A. Front Pay

Awards of front pay are generally entrusted to the

district court's discretion and are available only where

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reinstatement is impracticable or impossible. See Johnson v.

Spencer Press of Me., Inc., 364 F.3d 368, 380 (1st Cir. 2004). The

district court ruled that ordering Rodriguez's reinstatement would

be impossible but nevertheless declined to order front pay on the

ground that Rodriguez failed to demonstrate that she sought

comparable employment after her termination.

One recognized reason for denying front pay is the

plaintiff's failure to mitigate damages by seeking comparable

employment. See, e.g., Giles v. Gen. Elec. Co., 245 F.3d 474, 489

(5th Cir. 2001); Glenway v. Buffalo Hilton Hotel, 143 F.3d 47, 55

(2d Cir. 1998); see also C. Geoffrey Warwick, Employment

Discrimination Law, 1249 n.106 (2000 supp.). This is so because a

court cannot assess the plaintiff's likely future damages without

information on whether the plaintiff would have mitigated those

damages by obtaining alternative employment. Rodriguez testified

that she applied for a few jobs after her termination but that

these applications did not lead to any opportunities. Rodriguez's

testimony on this point was, at best, sketchy. In light of this

weak testimony and the absence of any other supporting evidence,

the district court acted within its discretion by denying Rodriguez

front pay as overly speculative.15

15
There were other reasons that may have made an award of front
pay inappropriate in this case. Rodriguez's division was closed a
year after her termination which made her long-term employment
prospects at Ramallo doubtful. Moreover, Rodriguez received a
large punitive and double damages award. Such awards can render

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 B. Attorney's Fees

Finally, we address Rodriguez's claim that the district

court erred by not awarding attorney's fees. It appears from the

docket that Rodriguez filed a "Verified Statement in Support of

Attorney's Fees" on September 18, 2003, but that the district court

never ruled on this request.16 Ramallo argues that we should deny

this request because Rodriguez did not style her filing as a

"motion" for attorney's fees. This argument is not so obviously

meritorious that we should rule on it in the first instance. "The

battle over attorney's fees is [largely] determined in the trial

court." See Phetosomphone v. Allison Reed Group Inc., 984 F.2d 4,

6 (1st Cir. 1993). This case presents no exception.

IV.

For the reasons stated, the judgment is affirmed. The

case is remanded to the district court for consideration of

Rodriguez's request for attorney's fees.

So ordered.

front pay unnecessary. See Wildman v. Lerner Stores Corp., 771
F.2d 605, 616 (1st Cir. 1985).
16
The district court's only relevant ruling was an order
denying, as untimely, Rodriguez's request to file a reply
memorandum in response to Ramallo's opposition to the attorney's
fees request.

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