United States Court of Appeals
For the First Circuit
No. 97-2093
RAFAEL RAMOS, ET AL.,
Plaintiffs, Appellants,
v.
DAVIS & GECK, INC., ET AL.,
Defendants, Appellees.
No. 97-2094
RAFAEL RAMOS, ET AL.,
Plaintiffs, Appellees
v.
DAVIS & GECK, INC., ET AL.
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hctor M. Laffitte, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jos Luis Ubarri with whom Herbert W. Brown, III and
David W. Romn and Brown & Ubarri were on brief for plaintiff,
appellant Rafael Ramos.
Pedro J. Manzano-Yates with whom Fiddler Gonzlez &
Rodrguez were on brief for defendant, appellee Davis & Geck,
Inc.
February 18, 1999
LIPEZ, Circuit Judge. Defendant-appellant Davis & Geck,
Inc. appeals from a jury verdict finding that Davis & Geck
constructively discharged Rafael Ramos in violation of Puerto
Rico's employment discrimination statute (Law 100), P.R. Laws Ann.
tit. 29, 146 et seq. Ramos cross appeals, alleging error in the
district court's (1) refusal to award front pay, (2) calculation of
attorney's fees, and (3) denial of pre-judgment interest. We
affirm.
I.
The jury could have found the following facts. SeeRodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 851 (1st Cir.
1998) ("We review the facts in the light most favorable to the
jury's verdict."). Ramos began working in the accounting
department of Davis & Geck's manufacturing plant in Manati, Puerto
Rico in 1974. In 1980, he was promoted to budget supervisor of the
accounting section. In June 1991, Davis & Geck hired Francisco
Rosaly as its cost accounting manager; Rosaly became Ramos'
supervisor. Rosaly made several comments to Ramos and others about
wanting "to get rid of old things" and "to bring in new blood" and
that he, Rosaly, wanted "to change everything that was old."
On March 16, 1992, Ramos (53 years old at the time) was
informed by Rosaly and Hazel Barry, the plant's controller, that he
was being replaced as budget supervisor by Maritza Montalvo, a
younger woman whom Ramos had recently trained. Ramos' pay and
benefits were not changed. Ramos was told that the decision had
been made and he could "take it or leave it."
After the meeting with Rosaly and Barry, Ramos began a
previously scheduled, mandatory vacation period. (Ramos, along with
other employees, had been ordered to take vacation because he had
accrued substantial leave without taking a vacation.) When certain
reports were requested of Ramos, however, he returned to work
during his vacation to prepare the reports. One evening between
9:30 and 10:00 p.m., Davis & Geck's computer system "went down."
When Ramos explained that he could therefore not finish the report,
Rosaly stood behind Ramos and told him to go home because he,
Ramos, was "a tired old man."
When Ramos returned from his vacation in April 1992, his
office assignment had been changed. Montalvo was in Ramos' former
cubicle, and Ramos had been transferred to "the death cubicle," so
named because all employees who had been assigned to it left the
company. In his new cubicle, Ramos found his personal belongings
in a box on the floor and an obsolete, non-working computer on his
desk.
Rosaly immediately demanded certain reports from Ramos.
Ramos claimed that he was unable to produce the reports as a result
of his inoperative computer. Rosaly instructed Ramos to use
another computer, but Ramos said that all the computers were in
use.
On April 21, 1992, Rosaly again demanded the reports.
Ramos again told Rosaly that he had been unable to complete the
reports because his computer was still not working and no other
computer had been available. Rosaly stood in the entrance to
Ramos' cubicle and threatened Ramos with an assault. Shaken by
the confrontation, Ramos began to cry and went to the company
infirmary. Ramos was excused from work by the company doctor; he
never returned to work.
Ramos was diagnosed with depression. In March 1994 the
Puerto Rico State Insurance Board found that he had been disabled
since April 21, 1992. In December 1994, Ramos filed suit alleging
that Davis & Geck constructively discharged him because of his age
in violation of the Age Discrimination in Employment Act, 29 U.S.C.
621 et seq. (the ADEA), and Puerto Rico's Law 100, P.R. Laws Ann.
tit. 29, 146 et seq. After a five day jury trial in January
1997, the jury found for Davis & Geck on the ADEA claim and for
Ramos on the Puerto Rico Law 100 claim. It awarded Ramos $150,000
in damages, doubled to $300,000 pursuant to Puerto Rico law. SeeP.R. Laws Ann. tit. 29, 146 (requiring employers found to have
violated Law 100 to pay the aggrieved employee "a sum equal to
twice the damages sustained").
Both parties filed post-verdict motions. Davis & Geck
sought a judgment as a matter of law or a new trial, both of which
were denied. Ramos sought front pay, attorney's fees, and pre-
judgment interest. Although the court denied front pay and pre-
judgment interest, it awarded attorney's fees of $37,500 --
significantly less than the $303,360 requested by plaintiff. These
appeals followed.
II.
A. Davis & Geck's Appeal
Davis & Geck argues that its post-verdict motions were
improperly denied because Ramos failed to adduce sufficient
evidence to support a jury finding that he had been constructively
discharged. It further argues that the district court erred by
failing to require proof that Davis & Geck intended to force Ramos
to quit as an element of a claim of constructive discharge.
Neither argument is availing.
1. Sufficient Evidence of Constructive Discharge
A judgment as a matter of law is only warranted if "no
reasonable jury could have returned a verdict adverse to the moving
party." Havinga v. Crowley Towing & Transp. Co., 24 F.3d 1480,
1483 (1st Cir. 1994). In reviewing the denial of a request for
such a judgment, we "may not assess the credibility of witnesses,
evaluate the weight of the evidence or resolve conflicts in
testimony, but rather must view all facts and reasonable inferences
therefrom in the light most favorable to the non-movant." Davet v.
Maccarone, 973 F.2d 22, 28 (1st Cir. 1992). Our review of the
denial of a request for a new trial is "similarly circumscribed,
but counsels ample deference to the district court's exercise of
discretion." Rolon-Alvarado v. Municipality of San Juan, 1 F.3d
74, 77 (1st Cir. 1993). A new trial should only be ordered "if
[the court] believes that the outcome is against the clear weight
of the evidence such that upholding the verdict will result in a
miscarriage of justice." Velazquez v. Figueroa-Gomez, 996 F.2d
425, 427 (1st Cir. 1993).
The court instructed the jury to apply an objective
standard of constructive discharge, requiring a determination
whether work conditions were "so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt compelled
to resign." Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561
(1st Cir. 1986) (quoting Alicea-Rosado v. Garcia-Santiago, 562 F.2d
114, 119 (1st Cir. 1977)). While "the focus is upon the
'reasonable state of mind of the putative discriminatee' [in this
case Ramos] . . . the law does not permit an employee's subjective
perceptions to govern a claim of constructive discharge." Id.(internal citations omitted). The question, then, is whether Ramos
presented sufficient evidence to allow the jury to credit his claim
that a reasonable employee would have felt compelled to resign
under the circumstances.
It is true that Ramos' demotion did not entail changes in
salary and benefits. However, "the fact that salary and benefits
have not been decreased has never been held to be a conclusive
factor; courts applying the objective standard in ADEA constructive
dismissal cases consider a variety of often case-specific factors."Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir.
1996). Davis & Geck "complains that a mere change in cubicle
location, change in work title, change in duties, a requirement
that the employee work on his vacation time, and an extremely harsh
confrontation with a supervisor can not accumulate into a
constructive discharge." Ramos, 968 F. Supp. at 779. However,
this catalogue is incomplete and the totality of the facts may not
seem "mere" to a reasonable employee, or to a reasonable jury. We
agree with the district court that the jury was entitled to find
that Davis & Geck constructively discharged Ramos.
2. Proof of the Employer's Intent
Davis & Geck argues that the imposition of objectively
oppressive work conditions should not suffice to establish a
constructive discharge without proof that the employer created the
intolerable work conditions with the specific intent of forcing the
employee to resign. Such a requirement of proof of employer intent
would plainly be at odds with our settled precedent: "We have long
applied an 'objective standard' in determining whether an
employer's actions have forced an employee to resign." Serrano-
Cruz, 109 F.3d at 26 (citing Calhoun, 798 F.2d at 561). The test
is whether "a reasonable person in the employee's shoes would have
felt compelled to resign" Calhoun, 798 F.2d at 561 (emphasis
added), irrespective of employer intent.
Davis & Geck cites language in our Calhoun opinion in
arguing for consideration of the employer's intent. In Calhoun, we
used an extended quote from a Fourth Circuit opinion which reads in
part: "An employee is protected from a calculated effort to
pressure him [or her] into resignation through the imposition of
unreasonably harsh conditions, in excess of those faced by his [or
her] coworkers." Id. (emphasis added) (quoting Bristow v. Daily
Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). Although this
reference to "a calculated effort" may suggest that proof of the
employer's intent is an element of the constructive discharge, we
articulated the constructive discharge standard in Calhoun as an
objective one and we have not required proof of employer intent in
subsequent cases. See id.; Serrano-Cruz, 109 F.3d at 26; Vega v.
Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir. 1993).
Indeed, such a requirement would be inconsistent with the
purpose of the constructive discharge doctrine to protect employees
from conditions so unreasonably harsh that a reasonable person
would feel compelled to leave the job. The doctrine reflects the
sensible judgment that employers charged with employment
discrimination ought to be accountable for creating working
conditions that are so intolerable to a reasonable employee as to
compel that person to resign. One can imagine an employer who
subjectively desires an employee to remain, so long as the employee
is willing to accept unreasonable, oppressive conditions. Such an
employer commits a constructive discharge. In this case, the jury
was free to find that a constructive discharge had occurred without
proof of Davis & Geck's intent to cause such a discharge.
B. Ramos' Cross Appeal
1. Front Pay
The district court declined to award Ramos any front pay,
which compensates the plaintiff for the loss of future earnings.
The Puerto Rico Supreme Court has held that "when reinstatement of
the employee cannot be ordered . . . [f]ront pay up to retirement
is an indispensable part of the just compensation afforded to the
employee discriminated against by reason of age." Odriozola v.
Cosmetic Dist. Corp., 116 D.P.R. 485, 16 Offic. Trans. 595, 624
(1985). In denying front pay damages, the district court held that
the jury verdict made Ramos whole and, in the alternative, that
Ramos had not proven that the impossibility of reinstatement was
caused by the discrimination of Davis & Geck. Because front pay is
considered an equitable remedy, "the decision to award or withhold
front pay is, at the outset, within the equitable discretion of the
trial court." Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir.
1995). We therefore review the front pay determination for an
abuse of discretion.
To collect front pay in the absence of a request for
reinstatement, Ramos had to prove that he could not return to work
at Davis & Geck because of the discriminatory acts of the
defendant. See Odriozola, 16 P.R. Offic. Trans. at 619 (allowing
front pay where the plaintiff "could not work because he was ill,
and said illness was due to [the employer's] discriminatory action
against him"); see also Lopez-Vicil v. ITT Intermedia, Inc. ("Lopez
I"), 97 J.T.S. 42 at 833, 838 (1997) (concluding that "the
preferred remedy in cases involving discriminatory dismissals is
reinstatement, provided that this is possible") (citing Selgas v.
American Airlines, Inc., 104 F.3d 9 (1st Cir. 1997)). The district
court found that "Ramos is capable of returning to his former
position but the stresses of his personal life, not the Defendant's
prior discriminatory conduct, pose the greatest obstacle for him."
Ramos, 968 F. Supp. at 773. After a careful examination of the
record, including a review of the testimony of two experts who
testified contradictorily about Ramos' mental health history, we
cannot say that this finding is clearly erroneous: "[w]here there
are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v. Cryovac,
Inc., 862 F.2d 910, 916 (1st Cir. 1988) (citing Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)). Consequently, we will
not disturb the district court's denial of front pay.
2. Attorney's Fees
The district court initially awarded Ramos $37,695 in
attorney's fees. Just six days after that ruling, the Supreme
Court of Puerto Rico issued a decision establishing that
"ordinarily, the amount that the attorney of a prevailing worker
may receive under an Act No. 100 claim shall be twenty-five percent
(25%) of the base compensation awarded to the worker." See Lopez-
Vicil v. ITT Intermedia, Inc. ("Lopez II"), 97 J.T.S. 104 at 1250,
1254 (1997). The district court then revised the attorney's fees
award to $37,500 in keeping with the Lopez II decision, finding
that this fee award was adequate to fairly compensate plaintiff's
counsel. We find no abuse of discretion in this determination.
See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 336
(1st Cir. 1997) ("We review fee awards deferentially, according
substantial respect to the trial court's informed discretion.");
Lopez II, 97 J.T.S 104 at 1254 ("Appellate courts, in turn, shall
not disturb the trial court's fee award except in cases involving
abuse of discretion.").
Ramos offers a second, more novel challenge to the
attorney's fees award. Despite the jury's verdict to the contrary,
Ramos claims to be a prevailing party under the ADEA, entitled to
a consideration of his fee request pursuant to ADEA jurisprudence.
This is so, he says, because the jury's finding that he had been
the victim of employment discrimination on the basis of age
pursuant to Law 100 is in effect a victory under the ADEA as well.
Ramos' proposition is clearly incorrect. As the district
court noted, the significant differences in the burden of proof
requirements under the ADEA and Law 100 explain the jury's award
under Law 100 and its denial under the ADEA. Under the ADEA, "the
plaintiff bears the ultimate burden of proving that 'he would not
have been fired but for his age.'" Serrano-Cruz, 109 F.3d at 25
(quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st
Cir. 1988)). In employment discrimination claims proceeding under
the McDonnell Douglas framework, the establishment of plaintiff's
prima facie case shifts only a burden of production to the
defendant (to articulate a legitimate nondiscriminatory reason for
the adverse employment action); once the employer meets that burden
of production "the presumption of discrimination vanishes and the
burden shifts back to the plaintiff" to show that the employer's
stated reason is in fact a pretext, and that the real reason was
discriminatory animus. Greenberg v. Union Camp Corp., 48 F.3d 22,
26 (1st Cir. 1995) (discussing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973)); see also Wildman v. Lerner Stores
Corp., 771 F.2d 605, 609 (1st Cir. 1985) ("Under the ADEA, the
burden of proof is at all times on the plaintiff.").
Under Law 100, however, once the employee triggers the
act's protections by showing that his discharge, constructive or
otherwise, was not justified, the employee enjoys a presumption
that he or she has been the victim of discrimination and the
burdens of both production and persuasion shift to the employer.
See Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152
F.3d 17, 27 (1st Cir. 1998) (citing Ibanez-Benitez v. Molinos de
Puerto Rico, Inc., 114 P.R. Dec. 42, 52 (1983) (concluding that Law
100 "is more favorable to plaintiff than its federal
counterpart")); see also Sanchez v. Puerto Rico Oil Co., 37 F.3d
712, 723 (1st Cir. 1994) (comparing burdens of proof under the ADEA
and Puerto Rico Law 100 and noting that "under Law 100, in contrast
[to the ADEA], the burden of proof shifts to the defendant once the
plaintiff has established a prima facie case"). "Thus, in order to
rebut the Law 100 presumption, the employer must prove, by a
preponderance of the evidence, that the challenged action was not
motivated by discriminatory age animus." Alvarez-Fonseca, 152 F.3d
at 27-28. These different burden of proof allocations explain the
divergent liability determinations on Ramos' ADEA and Law 100
claims. Ramos is not a prevailing party under the ADEA and has no
claim to attorney's fees under that statute.
3. Pre-Judgment Interest
Plaintiff also assigns error to the district court's
refusal to grant pre-judgment interest. Pursuant to Puerto Rico
Rule of Civil Procedure 44.3(b), the plaintiff is entitled to pre-
judgment interest if the defendant acted in an obstinate manner
during the litigation. See Dopp v. Pritzker, 38 F.3d 1239, 1252
(1st Cir. 1994) (noting that, while Rule 44.3(b) speaks in terms of
parties who act "rashly," "the case law makes it transpicuously
clear that the legally operative conduct under [Rule 44.3(b)] is
that of obstinacy") (citing De Leon Lopez v. Corporacion Insular de
Seguros, 931 F.2d 116, 126-27 (1st Cir. 1991)). The district court
found that Davis & Geck had not been obstinate and declined to
award pre-judgment interest. Such a finding is reviewed for abuse
of discretion. See Id. at 1253. At the close of the trial, the
district court commended the attorneys on both sides for their
"competence and diligence." Furthermore, in refusing Ramos'
request for pre-judgment interest, the court noted that the
defendant's success in defeating several of the claims justified a
robust defense. After a review of the record, and in deference to
"the vastly different relationship between the district court and
the events of an actual trial, on the one hand, and the court of
appeals and those same events, on the other hand," id., we affirm
the denial of pre-judgment interest.
For the foregoing reasons, the judgment of the district
court is affirmed.