October 28, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1171
JOSE L. SANCHEZ,
Plaintiff, Appellee,
v.
PUERTO RICO OIL COMPANY,
Defendant, Appellant.
ERRATA SHEET ERRATA SHEET
The opinion of the court issued on September 29, 1994, is corrected as follows:
1. After first sentence of footnote 3, (p.5), delete remainder of footnote and replace with the following:
Plaintiff conceded at trial, however, that appellant's general manager, George Gonzalez, had reprimanded him on approximately four occasions in the 1988-1990 time frame. The significance of these reprimands to plaintiff's overall job performance involved a fact determination within the jury's exclusive province.
2. On p.7, delete last sentence of first paragraph and replace with the following:
Appellant disputed plaintiff's version of this conversation, suggesting that any remarks by Gonzalez were motivated solely by a concern for plaintiff's health and physical condition.
3. On p.15, delete last two sentences of first paragraph and replace with the following:
Last, but surely not least, after having refused to reinstate Sanchez, Gonzalez questioned him about his age and made other age-related remarks that the jury reasonably could have construed as evincing bias.
Indeed, if the jury credited plaintiff's version of this conversation as it had a right to do, especially since Gonzalez, though available, was never called to testify at trial Gonzalez's statements comprise potent evidence of age-based animus.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Boudin and Stahl, Circuit Judges.
Enrique Velez-Rodriguez, with whom Lespier & Munoz-Noya was
on brief, for appellant. Federico Lora Lopez for appellee.
September 29, 1994
SELYA, Circuit Judge. This is a ghost ship of an SELYA, Circuit Judge.
appeal. One hears the creak of the rigging, the groan of the
timber, and the muted sound of voices through the fog but there
is nothing solid to be grasped. In the end the appeal, like the
ghost ship, vanishes into the mist, leaving things exactly as
they were. The tale follows.
I. AN OVERVIEW I. AN OVERVIEW
Plaintiff-appellee Jose L. Sanchez sued defendant-
appellant Puerto Rico Oil Company (Proico) asserting that the
company constructively discharged him due to his advanced age. A
jury agreed; it found that Proico had willfully violated both the
Age Discrimination in Employment Act, 29 U.S.C. 621 634 (1988)
(ADEA), and a Puerto Rico statute proscribing employment
discrimination, P.R. Laws Ann. tit. 29, 146 (Supp. 1989) (Law
100). The jury awarded Sanchez $40,376.80 in backpay under ADEA
and $150,000 for mental and moral suffering under Law 100.1
Proico moved for judgment notwithstanding the verdict, Fed. R.
Civ. P. 50(b), or for a new trial, Fed. R. Civ. P. 59(a). The
district court reduced the damage awards to $38,000 for backpay
and $37,500 for suffering, but otherwise gave Proico cold gruel.
The court then doubled the reduced awards, bringing Proico's
aggregate liability to $151,000. This appeal ensued.
Although appellant aggressively advances an armada of
1In both the jury instructions and the verdict form, the district court appropriately precluded the jury from awarding damages for backpay under Law 100 in the event that it awarded such damages under the ADEA.
artful arguments, only five are worthy of extended comment.2
These include four evidence-oriented propositions, namely, that
the evidence (1) failed to establish a prima facie case, (2) did
not warrant a finding of liability on the ADEA count, (3) fell
short of showing willfulness, and (4) did not warrant a finding
that plaintiff sustained non-economic damages in the amount
awarded under Law 100. Appellant's final claim is that the lower
court erred in doubling the two awards.
Because these importunings do not withstand close
perscrutation, we affirm the judgment below.
II. THE ADEA CLAIM II. THE ADEA CLAIM
Since the first three components of appellant's
asseverational array challenge the adequacy of the evidence in
respect to various aspects of plaintiff's ADEA claim, we treat
them in the ensemble.
A. Standards of Review. A. Standards of Review.
The standards of review that appertain to a trial
court's denial of the usual post-trial motions in civil cases are
firmly settled. With respect to a motion for judgment n.o.v.,
now known as judgment as a matter of law, the court of appeals
must examine the evidence and the inferences reasonably to be
extracted therefrom in the light most hospitable to the
2On appeal, Proico offers no developed argumentation concerning any alleged insufficiency of the evidence vis-a-vis the jury's finding of liability on the Law 100 claim. Thus, we treat any such claim as abandoned. See, e.g., Ryan v. Royal Ins.
Co., 916 F.2d 731, 734 (1st Cir. 1990); United States v. Zannino,
895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).
nonmovant, and may reverse the denial of such a motion only if
reasonable persons could not have reached the conclusion that the
jury embraced. See Wagenmann v. Adams, 829 F.2d 196, 200 (1st
Cir. 1987). In performing this tamisage, "we may not consider
the credibility of witnesses, resolve conflicts in testimony, or
evaluate the weight of the evidence." Id.
Appellate review of a district court's disposition of a
Rule 59(a) motion is even more circumscribed; a district court
may set aside a jury's verdict and order a new trial only if the
verdict is against the demonstrable weight of the credible
evidence or results in a blatant miscarriage of justice. See
Coffran v. Hitchock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert.
denied, 459 U.S. 1087 (1982). And, moreover, a trial judge's
refusal to disturb a jury verdict is further insulated because it
can be reversed solely for abuse of discretion. See Freeman v.
Package Mach. Co., 865 F.2d 1331, 1334 (1st Cir. 1988); Milone v.
Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988).
Mindful of the high hurdles that obstruct appellant's
path, we evaluate the evidence referable to the ADEA count with
an eye toward determining whether it can support only one
outcome, or, if not, whether it is so one-sided that the trial
court's failure to defenestrate the verdict constituted an abuse
of discretion. If neither of these conditions obtain, we cannot
disturb the lower court's disposition of appellant's post-trial
motions.
B. The Proof. B. The Proof.
Plaintiff worked for appellant in various capacities
for approximately two decades. During the first 18 years, he
performed satisfactorily, spending most of his time maintaining
the company's inventory system. In 1988, appellant reassigned
plaintiff, then 67 years old, to man a sales counter at
appellant's place of business in San Juan. Plaintiff concedes
that this reclassification reflected a legitimate change in
business conditions.
Though the evidence is largely disputed from this point
forward, plaintiff contends, and the jury could warrantably have
found, that he continued to perform his duties ably.3 In May of
1990, however, managerial changes occurred. Manuel Catinchi
became the company's executive vice-president. Plaintiff asserts
that Catinchi soon embarked on a course of age-animated
harassment. The pot began to boil when Catinchi summoned
plaintiff on July 5 and August 1, and criticized his job
performance. A jury reasonably could have concluded from all the
evidence that Catinchi had an ulterior motive in calling the
meetings; contrary to Catinchi's testimony that the sessions were
sparked by customer complaints that had been reported to Soto and
relayed by him to Catinchi, Soto denied having received any such
3At trial, this boast was substantiated by the testimony of both plaintiff's immediate supervisor, Mr. Soto, and a co-worker, Nydia Candelaria. Plaintiff conceded at trial, however, that appellant's general manager, George Gonzalez, had reprimanded him on approximately four occasions in the 1988-1990 time frame. The significance of these reprimands to plaintiff's overall job performance involved a fact determination within the jury's exclusive province.
complaints. In fact, Soto testified, he had never spoken with
Catinchi concerning plaintiff's job performance. Soto added that
plaintiff's work was exemplary.
On August 23, 1990, Catinchi wrote to plaintiff
informing him that he was being "promoted" to head a new office
in Aguadilla, effective September 1. Appellant asserts that this
promotion demonstrates its lack of animosity toward Sanchez. But
a jury feasibly could have viewed the employment decision in a
more sinister light; after all, Aguadilla is located in the
westernmost part of Puerto Rico, a three-hour drive from
plaintiff's home; and at any rate, management knew that plaintiff
did not own a car and that his wife suffered from a disability
that made it unwise (if not impossible) for him to spend
additional time away from home. The company did not offer to
relocate plaintiff or to furnish him transportation, and the
modest pay increase that was to accompany the promotion was not
enough to defray the costs associated with commuting.4
The record is tenebrous as to whether appellant
presented the promotion to plaintiff as obligatory or optional.
For present purposes, we do not think it matters, for, on August
29, plaintiff wrote to Catinchi declining reassignment. His
letter stated that he had "reached the conclusion that all this
has a name and a purpose: harassment and age discrimination to
force me to resign . . . ." The company neither responded to
4The evidence also established that appellant did not have an office in Aguadilla; its salesmen in the region habitually congregated at a local Burger King.
this missive nor opened an office in Aguadilla. Meanwhile,
plaintiff continued on the job.
On September 18, 1990, plaintiff toppled from a ladder
while at work. He reported to the State Insurance Fund (SIF) to
receive treatment for the injuries sustained. He refrained from
working for several weeks on doctor's orders. On November 9, the
SIF authorized plaintiff to resume employment. When he reported
for duty, however, Gonzalez refused to reinstate him. A
conversation ensued, during which Gonzalez asked plaintiff his
age and then counseled him to collect his pension rather than to
"screw" himself by returning to work. Appellant disputed
plaintiff's version of this conversation, suggesting that any
remarks by Gonzalez were motivated solely by a concern for
plaintiff's health and physical condition.
Having been shut out of the workplace, plaintiff
repaired to the SIF. A functionary there told him that he needed
a letter from his employer as to why he had not been allowed to
reclaim his job. Plaintiff went to appellant's place of business
on Monday, November 12, and again requested reinstatement. His
entreaty fell on deaf ears. He then asked for an explanatory
letter, and was told to return some other time since it was a
firm holiday and only a skeleton staff was on hand.
Plaintiff reappeared later the same week, bearing a
letter he himself had composed. The letter stated that appellant
had "ordered" him to return to the SIF. When he sought to have
Gonzalez sign the letter, Gonzalez's secretary told him to retype
it, substituting "suggested" for "ordered." Plaintiff complied,
but Gonzalez still refused to sign the document.
The barring of the company's doors on November 9 and
the events of the following week proved to be the straws that
broke the dromedary's back. When Gonzalez withheld the letter to
the SIF, plaintiff left Proico's premises, went directly to the
offices of the Puerto Rico Labor Department, and filed an
administrative complaint charging age discrimination. Two men in
their twenties assumed his duties on a temporary basis.
Plaintiff never returned to Proico's employ. At first,
he was unable to obtain unemployment benefits (apparently due to
the lack of the required letter) and soon declared bankruptcy.5
He returned to the SIF for periodic medical treatment until he
received a full discharge on March 7, 1991.6 Several weeks
later the company officially terminated plaintiff's employment
and hired a 36-year-old man as his permanent replacement.
Thereafter, plaintiff filed suit in federal district court with
the results previously described.
C. ADEA Liability. C. ADEA Liability.
In a trio of related arguments, appellant maintains
5Plaintiff ultimately secured unemployment benefits, but the record is silent as to the date.
6With certain limitations (not relevant here), Puerto Rico law requires an employer to reserve an injured worker's position for a minimum of 15 days following the employee's full discharge from the SIF. See P.R. Laws Ann. tit. 11, 7 (1983). Believing
that he had been constructively discharged in November, Sanchez made no effort to reclaim his job in March of 1991. The jury's verdict had the effect of validating this course of conduct.
that plaintiff failed to establish a prima facie case of age
discrimination, and that the evidence supports neither the jury's
finding that appellant violated the ADEA nor its determination of
willfulness. We deal sequentially with these assertions.
1. The Prima Facie Case. The claim that underlies 1. The Prima Facie Case.
appellant's first line of attack that the case should not have
reached the jury because plaintiff failed to establish a prima
facie case betrays confusion concerning the operation of the
burden-shifting framework that applies in many employment
discrimination cases (including this one).
The ADEA makes it unlawful for an employer to
"discharge any individual or otherwise discriminate . . . with
respect to . . . terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. 623(a). Due to
the difficulties of unmasking intentional discrimination, a task
that has been described as "elusive," Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981), courts have
crafted a burden-shifting framework to be used in cases where
direct evidence of intentional discrimination is lacking. See
id. at 255-56; see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973). Under this framework, the initial
burden is on the plaintiff, who must make a prima facie showing
of discrimination.
The prima facie case requirement embodies a concept,
not a mechanical exercise. Though its contours generally follow
the McDonnell Douglas model, a prima facie case must be custom-
tailored to fit both the particular animus (e.g., age
discrimination, sex discrimination, race discrimination) and the
particular type of employment decision involved (e.g., failure to
hire, failure to promote, failure to retain). The case at bar is
an ADEA case charging wrongful termination of employment. In
such circumstances, the plaintiff can establish a prima facie
case by adducing evidence that (i) he is a member of the
protected class, i.e., over 40 years old, (ii) the quality of his
work met the employer's legitimate expectations, (iii) the
employer nevertheless cashiered him, and (iv) the employer sought
a replacement with roughly equivalent occupational
qualifications, thereby demonstrating a continuing need for the
same services and skills.7 See Vega v. Kodak Caribbean, Ltd., 3
F.3d 476, 479 (1st Cir. 1993); Mesnick v. General Elec. Co., 950
F.2d 816, 823 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965
(1992); Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st
Cir. 1989).
The burden of making out a prima facie case belongs to
7Appellant insists that plaintiff also had to show that his employer ultimately hired a replacement who was not a member of the protected class. The case law in this circuit is to the contrary. See, e.g., Cumpiano v. Banco Santander Puerto Rico,
902 F.2d 148, 155 (1st Cir. 1990) (stating that "we have never held that the . . . prima facie discharge case can be fulfilled only if the complainant shows that she was replaced by someone outside the protected group"); Freeman, 865 F.2d at 1335 n.2
(explaining that "replacement by a younger person . . . is not an element of the plaintiff's prima facie case in an ADEA suit"); cf. St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2758 n.1
(1993) (Souter, J., dissenting) (citing Cumpiano and noting that
the Supreme Court has not addressed the question). At any rate, plaintiff made the showing here.
the plaintiff, but it is "not onerous." Burdine, 450 U.S. at
253. All that is needed is the production of admissible evidence
which, if uncontradicted, would justify a legal conclusion of
discrimination. See St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742, 2747 (1993). However, it is important to remember that the
contours of a prima facie case are flexible and situation-
specific. Thus, in applying this rubric to the instant case, we
must take into account a special wrinkle: here, plaintiff claims
a constructive discharge as opposed to an outright dismissal. We
have used the term "constructive discharge" to describe employer
action that makes "[work] so arduous or unappealing, or working
conditions so intolerable, that a reasonable person would feel
compelled to forsake his job rather than to submit to looming
indignities." Vega, 3 F.3d at 480; see also Alicea Rosado v.
Garcia Santiago, 562 F.2d 114, 119-20 (1st Cir. 1977). A
constructive discharge also may occur when an employer
effectively prevents an employee from performing his job. See,
e.g., Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992)
(finding constructive discharge when an employer, inter alia,
"removed all of [plaintiff's] files and then chastised him for
not doing his work"); Parrett v. City of Connersville, 737 F.2d
690, 694 (7th Cir. 1984) (finding constructive discharge where
supervisor removed all work and responsibilities from employee),
cert. denied, 469 U.S. 1145 (1985).
Silhouetted against this backdrop, appellant's argument
seems misshapen in two respects. First and foremost, plaintiff
succeeded in limning a prima facie case: he was in his late
sixties; his immediate supervisor and his sole co-worker both
praised his job performance; SIF's physicians believed that he
was medically fit to resume his duties by November 9; he
attempted to return to work on that date, yet appellant refused
to reinstate him and thereafter spurned at least one other direct
request for reinstatement; and appellant concedes that it had a
continuing need for the position. This gusher of evidence
possessed more than enough force to exceed the relatively low
threshold on which the prima facie case requirement rests.
Second, the question posed by appellant's challenge is
fundamentally irrelevant. Once a prima facie ADEA case has been
established under the McDonnell Douglas framework, an inference
of discrimination arises. See Mesnick, 950 F.2d at 823-25
(elucidating the burden-shifting framework). At this point, the
burden switches to the employer to articulate a legitimate
nondiscriminatory reason for the challenged action. This is a
burden of production, not of persuasion; the employer merely must
"set forth, through the introduction of admissible evidence,
reasons for its action which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the
cause of the employment action." St. Mary's, 113 S. Ct. at 2747
(internal quotation omitted); accord Woods v. Friction Materials,
Inc., F.3d (1st Cir. 1994) [No. 93-2296, slip op. at 9].
If, as in this case, the employer meets the burden of
production, the inference arising from the plaintiff's prima
facie case "drops from the case." St. Mary's, 113 S. Ct. at 2747
(quoting Burdine, 450 U.S. at 255 n.10). The plaintiff, who
retains the burden of proof throughout, then must persuade the
trier of fact that he has been victimized by intentional
discrimination. See id. at 2748-49. In this campaign, the facts
that comprised plaintiff's prima facie case may be considered,
but the inference of discrimination originally attributable to
those facts no longer pertains. See id. at 2749; Mesnick, 950
F.2d at 823. To carry the devoir of persuasion on this ultimate
issue, the plaintiff must identify probative evidence suggesting
that the reason given by the employer for the employment action
is pretextual, and, moreover, that it is a pretext for age
discrimination.8 See e.g., Mesnick, 950 F.2d at 823-24; Medina-
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.
1990); Freeman, 865 F.2d at 1336.
As can readily be seen from this analysis, when, as
now, an employment discrimination action has been submitted to a
jury, the burden-shifting framework has fulfilled its function,
and backtracking serves no useful purpose. To focus on the
existence of a prima facie case after a discrimination case has
8Depending on the facts of the particular case, showing a defendant's articulated explanation for an employment decision to be pretextual may or may not suffice to establish age discrimination, "particularly if disbelief is accompanied by a suspicion of mendacity." St. Mary's, 113 S. Ct. at 2749; see
also Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1708 (1993);
Woods, F.3d at n.3 [slip op. at 11 n.3]. We need not
probe the point today, as Sanchez adduced independent evidence which, when credited by the jury, sufficed to establish appellant's discriminatory animus.
been fully tried on the merits is to "unnecessarily evade[] the
ultimate question of discrimination vel non." United States
Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 713-14 (1983);
see also Mesnick, 950 F.2d at 824-25. By like token, our
evaluation of post-trial motions seeking relief from a jury's
verdict in such a case is similarly confined to the ultimate
question of discrimination. Consequently, to wander afield in
pursuit of appellant's phantom "prima facie case" argument is a
bit like undertaking early morning calisthenics: it might be
good exercise, but it certainly is not essential to the business
of the day.
For these reasons, appellant's first argument is
unavailing.
2. Sufficiency of the Evidence. The heart of 2. Sufficiency of the Evidence.
appellant's ADEA challenge is its claim of evidentiary
insufficiency. We have combed the record and detect a surfeit of
evidence from which a rational jury could have concluded that
appellant transgressed the law.
The evidence much of which is highlighted in Part
II(B), supra is copious enough that a lengthy exegesis, laden
with exquisite detail, would serve no useful purpose. It
suffices to say that, although appellant articulated a plausible,
nondiscriminatory reason for refusing to reinstate plaintiff it
contended that he had not sufficiently recovered from his
injuries to resume his duties on November 9, 1990 the jury
rejected that explanation. And the jury's skepticism has strong
roots in the record.
It is undisputed that appellant refused to reinstate
Sanchez on November 9. Thus, the jury had to determine whether
that refusal constituted a constructive discharge, as Sanchez
contended, or whether, as appellant contended, it constituted a
bona fide personnel decision based on Sanchez's incomplete
recovery from his injuries. The jury did not have to make this
determination in a vacuum. It heard evidence, for example, about
Catinchi's serial reprimands of plaintiff reprimands that,
given Soto's testimony, the jury could have believed to be bogus.
The jury also heard evidence about a "promotion" that seemed to
be no promotion at all, but more like the kiss of death. The
jury plausibly could have thought the entire Aguadilla affair to
have been a subterfuge aimed at forcing plaintiff's resignation.
Then, too, the jury heard evidence about the SIF's assessment of
plaintiff's health status and supportably could have found
Gonzalez's contrary views to be pretextual, particularly in light
of his refusal to sign a letter to the SIF explaining why
plaintiff had not been reinstated. Last, but surely not least,
after having refused to reinstate Sanchez, Gonzalez questioned
him about his age and made other age-related remarks that the
jury reasonably could have construed as evincing bias. Indeed,
if the jury credited plaintiff's version of this conversation
as it had a right to do, especially since Gonzalez, though
available, was never called to testify at trial Gonzalez's
statements comprise potent evidence of age-based animus.
We will not trespass on the reader's indulgence. Here,
a perceptive jury, making permissible credibility choices and
drawing lawful inferences, could conclude that appellant embarked
on a course of conduct designed to purge plaintiff from the work
force; that the sudden offer of a sham "promotion" was a step in
the plot; that, after the promotion ploy failed, plaintiff's
injury presented appellant with a fresh opportunity to reach its
goal; that appellant turned plaintiff away on November 9 despite
its knowledge that plaintiff had recuperated sufficiently to
perform his job, thereby constructively discharging him; and that
appellant's actions were motivated by a discriminatory animus
directed at plaintiff's age. In short, a reasonable factfinder
easily could have resolved liability as did the jurors in this
case without perpetrating a miscarriage of justice. Hence,
appellant has not surmounted the daunting obstacles posed by the
standards of review governing the district court's denial of its
post-trial motions.
D. Willfulness. D. Willfulness.
Next, appellant contends that the lower court erred in
upholding the jury's finding of willfulness. This contention is
unpersuasive.
Willfulness is an issue in ADEA cases because the
statute entitles a prevailing plaintiff to doubled backpay in
situations involving "willful violations." 29 U.S.C. 626(b).
Congress intended this liquidated damage provision to be
punitive, thereby serving to deter willful misconduct. See Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985). For
this purpose, a violation is considered willful if "the employer
. . . knew or showed reckless disregard for the matter of whether
its conduct was prohibited by the ADEA." Id. at 126.
A finding of willfulness requires something more than
merely showing that an employer knew about the ADEA and its
potential applicability in the workplace. See id. at 127-28.
For example, in the context of determining whether a settled
corporate policy violated the ADEA, the Thurston Court concluded
that the company's reasonable, good-faith efforts to determine
that the policy complied with the ADEA sufficed to avoid a
finding of willfulness even though the policy violated the law.
See id. at 129. Willfulness, then, requires an element akin to
reckless disregard of, or deliberate indifference to, an
employer's ADEA-related obligations. See Hazen Paper Co. v.
Biggins, 113 S. Ct. 1701, 1708 (1993) ("The word `willful' is
widely used in the law, and . . . it is generally understood to
refer to conduct that is not merely negligent.") (quoting
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); see
also Benjamin v. United Merchants & Mfrs., Inc., 873 F.2d 41, 44
(2d Cir. 1989) (explaining that an ADEA violation is willful if
the evidence shows that the employer has not merely "acted
negligently, inadvertently [and] innocently," but has been
"indifferent to the requirements of the governing statute and
acted in a purposeful, deliberate, or calculated fashion").
In Biggins, the Supreme Court held that Thurston's
definition of willfulness is applicable not only when the
violation is a "formal, facially discriminatory policy, as in
Thurston," but also when the violation is "an informal decision
by an employer that was motivated by the employee's age[.]" 113
S. Ct. at 1705, 1708-10.9 As in Thurston, the Court noted that
episodic violations of the ADEA in disparate treatment cases need
not automatically lead to the imposition of liquidated damages:
"If an employer incorrectly but in good faith and nonrecklessly
believes that the statute permits a particular age-based
decision, then liquidated damages should not be imposed." Id. at
1709.
We will not tarry. In this case, on any tenable view
of the law, there is a firm factual foundation for a finding that
Proico willfully flouted the ADEA. Here, the appellant's
misconduct lay at the exact crossroads of the antidiscrimination
9Prior to the Court's opinion in Biggins, the circuits were
in considerable disarray as to the quality and quantity of evidence, beyond evidence of mere awareness, that is necessary to underbrace an award of liquidated damages in an ADEA case. Compare, e.g., Dreyer v. Arco Chem. Co., 801 F.2d 651, 658 (3d
Cir. 1986) (requiring "outrageous conduct"), cert. denied, 480
U.S. 906 (1987) with, e.g., Brown v. M & M/Mars, 883 F.2d 505,
513 (7th Cir. 1989) (rejecting the Third Circuit's approach). The Biggins Court explicitly rejected the Third Circuit's
formulation, and labelled as "misplaced" the concern of various circuits that application of the Thurston definition was
inappropriate in the context of "an informal disparate treatment case." 113 S. Ct. at 1709. The Court reasoned that the "only distinction between Thurston and [an informal disparate treatment
case] is the existence of formal discrimination. Age entered the employment decision there through a formal and publicized policy, and not as an undisclosed factor motivating the employer on an ad hoc basis . . . surely an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against
imposing a penalty." Id. at 1709-10.
laws and the employment relationship; discharge and constructive
discharge are among the paradigmatic employment decisions to
which the ADEA is addressed, and appellant knew or, at least,
should have known that its corporate behavior ran afoul of the
antidiscrimination laws. Moreover, the jury had an adequate
basis for a finding that appellant's refusal to reinstate
plaintiff was both the culmination of a deliberate strategy and
the crowning blow in a series of actions reflecting age-based
discrimination; or, cloaked in the words of the Biggins Court,
that, notwithstanding the lack of a "formal and publicized
policy" productive of discrimination, there is "an undisclosed
factor motivating the employer on an ad hoc basis," id. The
questionable reprimands, the audiences demanded by Catinchi, and
the so-called promotion could all be viewed as steps toward this
end. And the employer's conduct after refusing to reinstate
Sanchez (including its failure to furnish the SIF with a written
explanation) strongly reinforce the suggestion that what befell
Sanchez was anything but a mere fortuity.
On this pithy record, we are confident that the jury
had a right to weave these several evidentiary threads into a
tapestry of calculated misconduct from which it could infer that
Proico's conduct toward plaintiff was not merely negligent, but
bordered on the contemptible. Appellant's actions clearly fall
outside the safe haven for good faith but incorrect conduct
described in Biggins and Thurston. Thus, the jury's finding of
willfulness is unimpugnable.10
III. MENTAL AND MORAL DAMAGES III. MENTAL AND MORAL DAMAGES
Appellant's penultimate point is that, as a matter of
law, there was insufficient evidence to support an award of
damages under Puerto Rico's comprehensive employment
discrimination statute. This statute, familiarly known as Law
100, creates a private cause of action in favor of any person who
is discharged or otherwise adversely affected in employment by
reason of, inter alia, age discrimination.11 An age
10To be sure, appellant maintains that its violation cannot be considered willful because it did not take reprisals against Sanchez for refusing the Aguadilla assignment. This reasoning is specious. At best, this evidence is relevant, but not dispositive. Moreover, it addresses only one of the several actions improperly taken against the plaintiff; on this record, a reasonable jury could have found a willful violation even if it had determined that the promotion incident, in and of itself, did not transgress the ADEA.
11The statute states in relevant part:
Any employer who discharges, lays off or discriminates against an employee regarding his salary, wage, pay or remuneration, terms, rank, conditions, or privileges of his work, or who fails or refuses to hire or rehire a person, or who limits or classifies his employees in any manner which tends to deprive a person of employment opportunities, or to affect his status as employee, on the basis of age . . . race, color, sex, social or national origin or social position, political or religious beliefs of the employee or applicant for employment: (a) shall incur civil liability (1) for a sum equal to twice the amount of damages sustained by the employee or applicant for employment on account of such action.
discrimination action brought under Law 100 differs from one
brought under the ADEA in two significant respects. First, as we
recognized in Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st
Cir. 1985), in an action brought under the ADEA, the plaintiff
retains the burden of proof throughout the trial; in an action
brought under Law 100, in contrast, the burden of proof shifts to
the defendant once the plaintiff has established a prima facie
case. See id. at 609. Second, and more noteworthy for present
purposes, Law 100 permits a plaintiff, upon appropriate proof, to
recover damages for emotional distress (or "mental and moral
suffering," to use the term employed by the district court and
the parties). See Garcia Pagan v. Shiley Caribbean, 122 D.P.R.
193 (1988).
With this preface, we turn to appellant's sufficiency
challenge. As an initial matter, it should be noted that we
consider this challenge only in connection with the district
court's denial of appellant's motion for a new trial. Proico
neglected to make the sufficiency claim when moving for judgment
as a matter of law at the close of the evidence, and, thus,
failed to preserve it for appeal. See Fed. R. Civ. P. 50(b).
This is a fatal omission, for "[if] a defendant wishes to renew a
motion for judgment as a matter of law at the post-trial stage
with a view to having denial of that motion considered by the
court of appeals, the defendant is required to have moved for
judgment as a matter of law at the close of all the evidence."
P.R. Laws Ann. tit. 29, 146 (Supp. 1989).
Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st
Cir. 1994); accord Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir.
1989). Simply stated, "[a] party may not base its motion for a
judgment n.o.v. on a ground that was not argued in its motion for
a directed verdict." Systemized of New England, Inc. v. SCM,
Inc., 732 F.2d 1030, 1035-36 (1st Cir. 1984).
Although the front door is closed, the back door
remains ajar. Appellant did raise its sufficiency claim in its
motion for new trial and, to that extent, we must consider it in
connection with our assessment of the weight of the credible
evidence. See id. at 1036-37. Having reached a variation of the
issue, however, we can swiftly dispose of it. We regularly have
said that "[t]ranslating legal damage into money damages
especially in cases which involve few significant items of
measurable economic loss is a matter peculiarly within a jury's
ken." Wagenmann, 829 F.2d at 215; accord Ruiz v. Gonzalez
Caraballo, 929 F.2d 31, 34 (1st Cir. 1991). And here, the
deferential nature of appellate oversight is accentuated because,
while the jury originally awarded plaintiff $150,000 for
emotional distress, the district court reduced the award to
$37,500.12 It is a well-established principle that:
12Of course, the district court then doubled the pared award pursuant to the statutory command that an employer's liability is for "a sum equal to twice the amount of damages sustained by the employee." P.R. Laws Ann. tit. 29, 146(a)(2). For the purpose of our analysis, however, the relevant figure is the underlying damage award not the doubled award because the doubling that Law 100 requires is not tied to any particular evidentiary showing on the plaintiff's part.
Once a verdict has been trimmed and reshaped at the hands of the trial judge, an assault on the remaining amount calls upon [the court of appeals] not merely to grade the essay, but to grade the teacher's grading of the essay. The resultant constraints are not inconsiderable. We agree with the Fifth Circuit that "[w]here the trial court already has invoked its discretion in granting a remittitur, [the] scope of review is even narrower than usual." Stapleton v. Kawasaki
Heavy Industries, Ltd., 608 F.2d 571, 574 n.7
(5th Cir. 1979).
Ruiz, 929 F.2d at 34-35 (quoting Wagenmann, 829 F.2d at 215).
The appellant must show, therefore, that the reduced figure
remains so extravagant as to shock the appellate conscience. See
id. at 35.
Appellant asserts that the evidence is insufficient to
allow the award of any sum of money for mental and moral
suffering. This assertion seemingly rests on the absence of
trial testimony from any mental health professional say, a
psychiatrist or psychologist. But appellant cites no case that
stands for the proposition that expert testimony is a
prerequisite to an award of damages for mental and moral
suffering. In other jurisdictions, expert testimony ordinarily
is not required to ground money damages for mental anguish or
emotional distress. See, e.g., Wulf v. City of Wichita, 883 F.2d
842, 875 (10th Cir. 1989) (upholding award of damages for mental
anguish and distress based solely on lay testimony); Busche v.
Burkee, 649 F.2d 509, 519 n.12 (7th Cir.) (rejecting requirement
of testimony of medical or psychiatric experts for award of
damages for emotional distress), cert. denied, 454 U.S. 897
(1981); Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977)
(stating that damages for emotional distress "may be inferred
from the circumstances as well as proved by the testimony")
(citations omitted); see also Carey v. Piphus, 435 U.S. 247, 264
n.20 (1978) ("Although essentially subjective, genuine injury in
this respect [mental suffering or emotional anguish] may be
evidenced by one's conduct and observed by others."); Marable v.
Walker, 704 F.2d 1219, 1220 (11th Cir. 1983) (holding that
absence of "evidence of pecuniary loss, psychiatric disturbance,
effect of social activity, or physical symptoms . . . go[es] more
to the amount, rather than the fact, of damage[s]" for emotional
distress). We see no basis for imputing a more stringent rule
under Puerto Rico law.13
Over and beyond this hurdle, we think that the evidence
of record adequately supports the pared award. A recovery of
$37,500 for emotional distress can "fairly be said to flow from
the evidence adduced at trial," Ruiz, 929 F.2d at 35, especially
given plaintiff's testimony that appellant's conduct in
wrongfully discharging him not only stripped him of his
livelihood and dignity, but also drove him into bankruptcy.14
13We hasten to add that the district court appropriately took the absence of such evidence into account in fashioning a remittitur, finding that "since psychological and psychiatric evidence was not presented, the record would only support a $37,500 award for pain, mental suffering, and humiliation." The plaintiff accepted the remittitur on this count as on the ADEA count.
14Plaintiff testified that he was deeply affected by having to declare bankruptcy because he had always "religiously" paid his debts.
Then, too, plaintiff testified emphatically about the humiliation
that he suffered in the course of shuttling futilely back and
forth between Proico and the SIF, and the jury could well have
credited that testimony.
We believe that we have written enough to give the
reader the flavor of the record. Though plaintiff's case on
damages was relatively asthenic, we cannot say that the reduced
award was unjustified or that it offends our collective
conscience. Cf. Wagenmann, 829 F.2d at 215 (finding damages
justified when record reflected "stress, fear, humiliation,
embarrassment, and stigmatization").
IV. DUPLICATIVE DAMAGES IV. DUPLICATIVE DAMAGES
Appellant's last asseveration is that the district
court erred by doubling plaintiff's damages under both the ADEA
and Law 100. This asseveration presents a pure question of law,
thereby sparking de novo review.15 See McCarthy v. Azure, 22
F.3d 351, 354 (1st Cir. 1994); Liberty Mut. Ins. Co. v.
Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).
In different legal contexts we have several times
15In the interest of clarity we think it worthwhile to note that appellant does not argue that the underlying damage awards are duplicative. Indeed, they are not: the jury awarded Sanchez compensation for the independent losses of backpay under ADEA and mental anguish under Law 100, see supra note 1. Similarly,
appellant does not argue that either the aggregate damages or the total punitive damages are so great as to insult due process. See generally Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1
(1993). Appellant argues only that doubling both underlying awards is duplicative.
expressed the principle that "a plaintiff is entitled to only one
full recovery, no matter how many legal grounds may support the
verdict." Freeman, 865 F.2d at 1345; see also Linn v. Andover
Newton Theolog. Sch., Inc., 874 F.2d 1, 6-8 (1st Cir. 1989).
Appellant argues that this doctrine has application here:
doubling both the ADEA and Law 100 awards, appellant avers,
allows the plaintiff to recover twice for the same loss.
Appellant's postulate does not survive scrutiny.16
Liquidated damages under ADEA are punitive in nature, and are
intended to deter violations. See Thurston, 469 U.S. at 125. In
contrast, the 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 far more comfortably
with an aim to compensate rather than to punish or deter. To
this extent, then, the ADEA and Law 100 awards serve different
ends and represent distinct types of damage awards.
16The cases relied on by appellant discuss a different scenario. In the pre-Thurston era, liquidated damages under the
ADEA were often thought to be compensatory in nature. See, e.g.,
Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1102 (8th Cir. 1982).
When a discrimination victim received both liquidated damages and prejudgment interest, some courts took the view that liquidated damages were intended to "cover, among other things, loss due to delay," and, therefore, held that awarding both liquidated damages and prejudgment interest would constitute an improper multiple recovery, for "loss due to delay [is] precisely what prejudgment interest protects against. Linn, 874 F.2d at 6; see,
e.g., Kolb v. Goldring, 694 F.2d 869, 875 (1st Cir. 1982); Blim
v. Western Elec. Co., 731 F.2d 1473, 1479-80 (10th Cir.), cert.
denied, 469 U.S. 874 (1984).
Consequently, the two awards, though calculated in part by the
same formula, i.e., doubling, cannot be deemed duplicative. Cf.
Lilley v. BTM Corp., 958 F.2d 746, 755 (6th Cir.) (holding that
awards for liquidated damages under ADEA and prejudgment interest
under state antidiscrimination statute are not duplicative
because the ADEA's "liquidated damages are punitive [while the]
prejudgment interest [is] compensatory"), cert. denied, 113 S.
Ct. 376 (1992).
Be that as it may, this appeal does not require us to
decide today whether the doubling under Law 100 has a
compensatory thrust. Even if we were to assume arguendo the
opposite, i.e., that doubling under Law 100 is punitive in
nature, appellant would not profit. Punitive damages are
directed at deterring and punishing defendants; they are not
designed to compensate plaintiffs for losses. See Thurston, 469
U.S. at 125; Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d
373, 383 (8th Cir. 1993), cert. denied, 114 S. Ct. 2120 (1994).
As such, the considerations that operate to bar multiple
recoveries are conceptually and legally inapplicable to punitive
damages. Of course, potential punitive liability may be limited
by legislative intent or due process, see TXO Prod'n Corp. v.
Alliance Resources Corp., 113 S. Ct. 2711, 2718-19 (1993);
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 14-15 (1991),
but appellant has not argued either of those aspects in this
appeal. And apart from statute or constitutional considerations,
we know of no legal concept of duplicative awards that functions
as a limitation on exemplary damages.
Thus, we come full circle. Regardless of whether the
doubling of a Law 100 award for mental and moral suffering is
conceived to be compensatory or punitive in nature, appellant's
argument fails.
V. CONCLUSION V. CONCLUSION
We need go no further. The record reveals ample
evidence to sustain the jury's finding that appellant willfully
terminated plaintiff's employment due to his age, thereby
transgressing both federal and Commonwealth statutes. The
ensuing damage awards, as refined by the district court, are also
within lawful parameters. Proico's ship has sailed.
Affirmed. Affirmed.