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).
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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
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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.
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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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