
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1341 <br> <br>                        ELIZABETH CRIADO, <br> <br>                      Plaintiff - Appellant, <br> <br>                                v. <br> <br>                         IBM CORPORATION, <br> <br>                      Defendant - Appellee. <br> <br>                       ____________________ <br> <br>No. 97-1342 <br> <br>                         IBM CORPORATION, <br> <br>                      Plaintiff - Appellant, <br> <br>                                v. <br> <br>                        ELIZABETH CRIADO, <br> <br>                      Defendant - Appellee. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Stahl, Circuit Judge, <br> <br>Godbold and Cyr, Senior Circuit Judges. <br> <br>                      _____________________

    Jeffrey G. Huvelle, with whom Michael A. Dawson, Covington & <br>Burling, Alfredo M. Hopgood and McConnell Valds were on brief for <br>appellant IBM Corporation. <br>    Enrique J. Mendoza-Mndez, with whom Mendoza & Bac was on <br>brief for appellee Elizabeth Criado. <br> <br> <br> <br>                       ____________________ <br> <br>                          June 5, 1998 <br>                       ____________________

          GODBOLD, Senior Circuit Judge.  The defendant IBM <br>Corporation appeals from a final judgment in favor of plaintiff <br>Elizabeth Criado on her claim that her employment with IBM was <br>terminated in violation of the Americans with Disabilities Act <br>(ADA), 42 U.S.C.  12112, and the Puerto Rico Indemnity Law, 29 <br>L.P.R.A.  185a-d.  IBM questions the sufficiency of the evidence <br>in numerous respects.  By cross-appeal Criado questions elements of <br>the damage award in her favor. <br>                I.  Factual and Procedural History <br>     The jury was entitled to find the following facts, either <br>as undisputed or based on sufficient evidence. <br>     Elizabeth Criado relocated to Puerto Rico from New York <br>in 1987 to assume a full-time position in IBM's marketing <br>department.  From 1987 to 1993 she performed her job very well, <br>often receiving commendations and recognition for surpassing <br>marketing and sales goals.  During this period Criado was under the <br>care of a psychiatrist, Dr. Michael Woodbury, who diagnosed her <br>with Attention Deficit Disorder and treated her for an anxiety <br>disorder and bouts of depression.  Although the bouts of depression <br>often required temporary medication, none was so severe that it <br>required Criado to take a leave of absence. <br>     In 1994 Criado's mental impairment worsened as the result <br>of both personal and professional stressors.  She was married in <br>January of 1994.  Her new husband had five children from a previous <br>marriage, some of whom resided with Criado and her husband.  In May <br>a new manager, Kathy Lee, replaced Criado's former supervisor.  <br>Lee's managerial style was more formal and rigid than Criado's <br>previous supervisors, and Criado considered her inept.  All of <br>these factors caused Criado's condition to degenerate rapidly. <br>     By June of 1994 Criado's anxiety disorder and depression <br>had worsened to the point that she began to request accommodations <br>for her condition.  Dr. Woodbury, her doctor, suggested that she <br>take a disability leave so that he could treat her condition, give <br>her time to recuperate, and experiment with possible medication if <br>needed.  He thought that if Criado were granted a one-month leave <br>he could ameliorate her condition to the point that she could <br>return to work and once again be a productive employee despite her <br>illness.  Following IBM's procedure he requested  a disability <br>leave for Criado to begin June 22, but it was not until mid-July <br>that the leave was granted.  IBM's medical department only granted <br>leave through August 1 because that was the date originally <br>requested by Dr. Woodbury. <br>      Criado was not well enough to return to work in August, <br>and Dr. Woodbury tried to convey this information by fax to IBM's <br>medical unit in New York, by sending evaluations dated August 4 and <br>12.  The parties dispute whether IBM received the August 12 fax, <br>although evidence showed that Woodbury's office made a one-minute <br>telephone call to IBM's medical department fax number on August 12, <br>indicating that a fax was transmitted.  Woodbury tried to make sure <br>that all communication concerning Criado was between himself and <br>IBM, because he thought that Criado's treatment depended on her <br>isolation from IBM affairs.  However, supervisor Lee continued to <br>contact Criado directly, and on August 17 she informed Criado that <br>her leave of absence had not been extended past August 1, and, <br>because she had failed to return to work, her employment with IBM <br>had been terminated.  Subsequent to this termination letter, <br>Dr. Woodbury wrote IBM asking that it reconsider Criado's <br>termination.  He attached his evaluations dated August 4 and <br>August 12.  He continued to say that Criado's condition would <br>improve enough for her to return to work if she were given more <br>time away from IBM.  He also informed IBM that the termination <br>letter had worsened Criado's condition. <br>     IBM describes Criado's termination as a misunderstanding <br>of the fact that she, through the doctor, was seeking additional <br>leave time after the three-week leave expired, which arguably <br>related to Dr. Woodbury's efforts to pass information by fax to <br>IBM's medical department in New York.  But, assuming the faxes did <br>not reach the medical department, it is undisputed that <br>Dr. Woodbury by subsequent letter sent information on Criado's <br>condition and requested reconsideration of her termination.  IBM <br>refused to reconsider Criado's termination, and on August 28, 1995, <br>she filed suit against IBM alleging that it had discharged her in <br>violation of the ADA and the Puerto Rico Indemnity Law. <br>     A jury returned a verdict in favor of Criado on her <br>federal and state claims, and awarded her $200,000 in compensatory <br>damages, $209,139 for back pay, $46,384 for front pay, and $250,000 <br>in punitive damages.  The $450,000 in compensatory and punitive <br>damages were reduced to $300,000 pursuant to a statutory damages <br>cap found at 42 U.S.C.  1981(b)(3)(D).  The court did not award <br>prejudgment interest or order IBM to reinstate Criado.  After the <br>parties filed a series of post-trial motions the district court <br>decided to reconsider the issue of reinstatement and held an <br>evidentiary hearing to determine whether it had erred in failing to <br>order IBM to reinstate Criado.  After this hearing the court <br>determined that Criado's position had been eliminated in 1995 so <br>that reinstatement was not warranted.  The court further found that <br>it would not order Criado's reinstatement to an alternate position <br>because of her past antagonistic relationship with supervisors.  <br>Also, the court denied Criado's motion asking for an award of pre- <br>judgment interest. <br>     Each party filed a timely notice of appeal from the <br>judgment, and the appeals were consolidated.  We affirm in part, <br>reverse in part, and remand to the district court for further <br>proceedings. <br>                        II.  IBM's APPEAL <br>                A.  Issues and standards of review <br>     At times IBM presents its issues as though purely turning <br>on questions of law, but the central issue involves sufficiency of <br>the evidence as raised by a Rule 50(b) motion.  IBM asserts that <br>Criado did not present sufficient evidence (1) that she has a <br>disability; (2) that she was a qualified individual; (3) that the <br>accommodation she requested was reasonable; and (4) that her <br>employment was terminated because of a disability. <br>     When examining denial of a motion for a judgment as a <br>matter of law under Rule 50(b) we review de novo the sufficiency of <br>the evidence.  However, we employ the same determinative standards <br>utilized by the district court.  We cannot evaluate "the <br>credibility of witnesses, resolve conflicts in testimony, or <br>evaluate the weight of evidence," and we must affirm unless "the <br>evidence, viewed from the perspective most favorable to the <br>nonmovant, is so one-sided that the movant is plainly entitled to <br>judgment, for reasonable minds could not differ as to the outcome." <br>Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994) <br>(citations omitted). <br>     IBM questions the damages awarded to Criado, including <br>the awards of front and back pay and the assessment of punitive <br>damages.  Deciding whether to uphold a jury's award of damages is <br>within the district court's discretion, and we will not disturb <br>this discretion unless we find "strong evidence of a lapse in <br>judgment."  Selgas v. American Airlines, Inc., 104 F.3d 9, 12 (1st <br>Cir. 1997); see also Fishman v. Clancy, 763 F.2d 485, 489-90 (1st <br>Cir. 1985) (juries have wide discretion in determining the amount <br>of punitive damages, and the trial court has broad discretion to <br>affirm the jury's award of damages). <br>                B.  Criado's burden under the ADA <br>     The ADA provides that "[n]o covered entity shall <br>discriminate against a qualified individual with a disability <br>because of the disability. . . ."  42 U.S.C.  12112(a).  To <br>prevail on an unlawful discrimination claim under the ADA a <br>plaintiff must prove three things by a preponderance of the <br>evidence: first, she must show that she was disabled within the <br>meaning of the Act; second, she must prove that with or without <br>reasonable accommodation she was a qualified individual able to <br>perform the essential functions of the job; and third, she must <br>show that the employer discharged her because of her disability.  <br>Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996). <br>     Under the ADA, the term "discriminate" embodies "not <br>making reasonable accommodations to the known physical or mental <br>limitations of an otherwise qualified individual with a disability <br>. . . unless such covered entity can demonstrate that the <br>accommodation would impose an undue hardship on the operation of <br>the business of such covered entity."  42 U.S.C.  12112(b)(5)(A).  <br> The ADA defines "qualified individual with a disability" as "an <br>individual with a disability who, with or without reasonable <br>accommodation, can perform the essential functions of the <br>employment position that such individual holds or desires."  Id. 12111(8).  The Act recognizes that a reasonable accommodation may <br>include "job restructuring, part-time or modified work schedules," <br>and other similar accommodations.  Id.  12111(9)(B). <br>                    C.  Criado's disability <br>     IBM contends that the court should have granted its <br>motion for judgment as a matter of law because Criado's impairment <br>is not a disability as defined by the ADA.  The ADA defines <br>disability as: <br>     (A)  a physical or mental impairment that substantially <br>          limits one or more of the major life activities of <br>          such individual; <br>     (B)  a record of such an impairment; or <br>     (C)  being regarded as having such an impairment. <br> <br>42 U.S.C.  12102(2).  EEOC guidelines identify several factors to <br>assist in determining whether a particular "disability" is of such <br>severity that it comes within the protection intended by ADA.  <br>These factors include: <br>    (i)    The nature and severity of the impairment; <br>    (ii)   The duration or expected duration of the <br>           impairment; and <br>    (iii)  The permanent or long term impact, or the <br>           expected permanent or long term impact of or <br>           resulting from the impairment. <br> <br>29 C.F.R.  1630.2(j)(2).  IBM views Criado's adjustment disorder <br>as a temporary mental condition that could not qualify as a <br>disability under the ADA.  Examining the evidence under the <br>standard required for review of a Rule 50 motion, we hold that <br>Criado presented evidence that could have allowed a rational jury <br>to determine that her disability was not temporary.  She had been <br>seeing her physician for seven years and had often had periods of <br>depression, though the particular episode is the only one that <br>required absence from work.  Furthermore, she had been diagnosed <br>with Attention Deficit Disorder (ADD), a permanent disability, and <br>her physician testified that the ADD compounded her depression and <br>anxiety disorders. <br>    IBM points to evidence from Criado's physician that her <br>condition was temporary and that she would completely recover after <br>a short leave from work.  But the jury could have found that Criado <br>and her physician only intended that the accommodation she <br>requested was temporary, not the disability itself.  <br>    Criado also presented evidence that allowed the jury to <br>find that her mental disorders had substantially impaired the major <br>life activity of working.  This court has recognized that in some <br>circumstances depression can constitute a disability under the ADA.  <br>See Ralph v. Lucent Techs., 135 F.3d 166, 168 (1st Cir. 1997) <br>(assuming that plaintiff's depression constituted a disability <br>under the ADA for the purpose of determining whether he had a <br>probability of success on the merits of his claim and thus deserved <br>injunctive relief); E.E.O.C. v. Amego, Inc., 110 F.3d 135, 141 (1st  <br>Cir. 1997) (assuming for summary judgment purposes that plaintiff's <br>depression and post-traumatic stress disorder rendered him "a <br>disabled person within the meaning of the ADA").  But see Soileauv. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997) <br>(finding no disability because the plaintiff's episodic depression <br>did not substantially limit any major life activity). <br>    IBM questions whether Criado had a permanent disability, <br>because prior to May and June of 1994 none of her major life <br>activities was substantially impaired by her bouts with depression.  <br>Furthermore, her physician predicted she would be fully able to <br>perform her job after she returned from her requested leave.  But <br>by the time Criado requested the leave of absence she had become <br>unable to perform some of the functions of her job.  She was having <br>trouble dealing with stress and relating to both co-workers and <br>clients.  Depression and anxiety were causing sleep deprivation <br>which affected her timeliness and ability to report to work.  This <br>evidence showed that her mental impairments had substantially <br>limited her ability to work, sleep, and relate to others.  Overall, <br>there was evidence indicating that she was unable to adequately <br>perform her job as she had in the past.  That her depression had <br>been adequately treated through therapy in the past and was <br>expected to be adequately treated through therapy and medication in <br>the future does not establish that she does not have a disability.  <br>See Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 859 (1st <br>Cir. 1998) ("Both the explicit language and the illustrative <br>examples included in the ADA's legislative history make it <br>abundantly clear that Congress intended the analysis of an <br>'impairment' and of the question whether it 'substantially limits <br>a major life activity' to be made on the basis of the underlying <br>(physical or mental) condition, without considering the <br>ameliorative effects of medication, prostheses, or other mitigating <br>measures.") (citing H.R. Rep. No. 101-485, pt. III, at 28 (1989), <br>reprinted in 1990 U.S.C.C.A.N. 445, 451; H.R. Rep. No. 101-485, pt.  <br>II, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334; S. Rep. <br>No. 101-116, at 23 (1989)); Krocka v. Bransfield, 969 F. Supp. <br>1073, 1085 (N.D. Ill. 1997) (summary judgment for employer not <br>warranted where plaintiff's ability to function generally and to <br>interact with others   and therefore to work   were substantially <br>limited before he was treated for depression with Prozac and <br>therapy). <br>    Proving the elements of a mental disability will not be <br>as easy or as clear cut as cases of physical disability.  But, <br>though mental impairments create special problems under the ADA, <br>Congress chose to recognize these as disabilities under the Act.   <br>Cf. Arnold, 136 F.3d at 861 ("Conceptually, it seems more <br>consistent with Congress's broad remedial goals in enacting the <br>ADA, and it also makes more sense, to interpret the words <br>"individual with a disability" broadly, so the Act's coverage <br>protects more types of people against discrimination."). <br>    The evidence of Criado's disability was sufficient. <br>                     D.  Qualified individual <br>    There is no merit to IBM's argument that the evidence is <br>insufficient to entitle a jury to find that Criado is a qualified <br>individual who could perform the essential functions of her job.  <br>Whether a person is a qualified individual under the ADA is <br>comprised of two separate inquiries.  First, the person must <br>possess "the requisite skill, experience, education and other job- <br>related requirements" for the position, and second, must be able to <br>perform the essential functions of the position with or without <br>reasonable accommodation.  See 29 C.F.R.  1630.2(m) (EEOC <br>guidelines).  Criado undoubtedly meets the first qualification.  <br>Before her disorder worsened she had received numerous awards and <br>commendations for her superior work performance.  In considering <br>the second question we will assume for the purposes of this query <br>that the leave requested by Criado was a reasonable accommodation.  <br>Criado's physician testified that if given a significant leave she <br>could adjust to her situation and after he experimented with <br>medication she might return to her previous level of functionality.  <br>This evidence indicates that with a reasonable accommodation Criado <br>could perform the essential functions of her job. <br>    The evidence that Criado was qualified was sufficient. <br>                   E.  Reasonable accommodation <br>    IBM contends that, even assuming Criado was disabled and <br>qualified, it did not violate the ADA because the accommodation she <br>requested was not reasonable.  Reasonable accommodations under the <br>ADA can include "[j]ob restructuring;  part-time or modified work <br>schedules; [or] reassignment to a vacant position; . . . and other <br>similar accommodations for individuals with disabilities." 42 <br>U.S.C.  12111(9)(B).  A leave of absence and leave extensions are <br>reasonable accommodations in some circumstances.  See Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) (decided under section <br>501(b) of the Rehabilitation Act and finding leaves reasonable <br>accommodations for alcoholics); Kimbro v. Atlantic Richfield Co., <br>889 F.2d 869, 878-79 (9th Cir. 1989) (interpreting an analogous <br>state statute); 29 C.F.R. pt. 32, App. A(b) (Department of Labor <br>regulations announcing that a reasonable accommodation may require <br>an employer "to grant liberal time off or leave without pay when <br>paid sick leave is exhausted and when the disability is of a nature <br>that it is likely to respond to treatment of hospitalization"); 29 <br>C.F.R. pt. 1630, App.(EEOC interpretive guidance on the ADA stating <br>that a reasonable accommodation "could include permitting the use <br>of accrued paid leave or providing additional unpaid leave for <br>necessary treatment").  Whether the leave request is reasonable <br>turns on the facts of the case.  Compare Ralph, 135 F.3d at 172 <br>(for the purpose of granting injunction, success on the merits was <br>likely because employer may be required to grant additional <br>accommodations beyond a 52-week leave with pay for employee who <br>suffered a mental breakdown) with Evans v. Federal Express Corp., <br>133 F.3d 137, 140-41 (1st Cir. 1998) (employer not required to <br>grant an additional leave of absence for employee to receive <br>treatment for alcohol abuse where prior leave was granted for <br>employee to seek treatment for cocaine addiction). <br>    In Kimbro the Ninth Circuit recognized that an employee <br>who suffered from acute migraine episodes was justified in <br>requesting a temporary leave of absence as an accommodation for his <br>disability where the leave would have allowed his doctor to <br>formulate an effective treatment.  Kimbro, 889 F.2d at 879 ("As <br>long as a reasonable accommodation available to the employer could <br>have plausibly enabled a handicapped employee to adequately perform <br>his job, an employer is liable for failing to attempt that <br>accommodation."). <br>    Like the plaintiff in Kimbro, Criado offered evidence <br>tending to show that her leave would be temporary and would allow <br>her physician to design an effective treatment program.  <br>Furthermore, IBM provides all employees with 52 weeks of paid <br>disability leave.  In explaining this policy an IBM management <br>representative testified that disability leaves did not financially <br>burden IBM because it recognized that it was always more profitable <br>to allow an employee time to recover than to hire and train a new <br>employee.  This testimony prevents IBM from asserting that Criado's <br>leave produced an undue burden on its operations.  Also, Criado was <br>not asking for more leave than would be granted to a non-disabled, <br>sick employee.  Because Criado's physician was optimistic that the <br>leave would ameliorate her disability, the jury could find her <br>request a reasonable accommodation.  <br>     Considering the facts in the light most favorable to the <br>verdict we find no error in the district court's denial of IBM's <br>motion for a judgment as a matter of law on the issue of whether <br>Criado's leave request was a reasonable accommodation. <br>               F.  Reason for Criado's termination <br>     IBM asserts that it terminated Criado's employment <br>because of miscommunication between Dr. Woodbury and its New York <br>medical office, concerning her request for an extended leave period <br>and her failure to report to work, rather than because of her <br>disability or her need for an accommodation and, IBM says, since <br>liability under the ADA requires that an employer has discriminated <br>on the basis of the employee's disability, the district court <br>should have granted judgment as a matter of law in its favor.  <br>However, IBM's doctor acknowledged that the evaluations of August 4 <br>and 12 would have supported Criado's request for additional leave.  <br>     Moreover, IBM's position ignores its duty to accommodate <br>under the ADA.  IBM was on notice that Criado was suffering from a <br>mental impairment and that she needed time to adjust to her <br>exacerbated condition.  "An employee's request for reasonable <br>accommodation requires a great deal of communication between the <br>employee and employer[;] . . . both parties bear responsibility for <br>determining what accommodation is necessary."  Bultemeyer v. Fort <br>Wayne Community Sch., 100 F.3d 1281, 1285 (7th Cir. 1996) (also <br>noting that "[i]n a case involving an employee with mental illness, <br>the communication process becomes more difficult," and "[i]t is <br>crucial that the employer [is] aware of the difficulties, and help <br>the other party determine what specific accommodations are <br>necessary") (internal quotations and citation omitted).  If the <br>termination was the result of a communication mistake Criado should <br>have been reinstated once her physician explained her condition and <br>prognosis and asked for additional leave.  See Bultmeyer, 100 F.3d <br>at 1286 (holding that although physician's letter requesting an <br>accommodation for disabled employee came after employer's decision <br>to terminate, employer should have "reconsider[ed] the decision to <br>terminate his employment"). <br>     Asserting that the termination was based on Criado's <br>absenteeism rather than her disability does not justify IBM's <br>action where the absence was the requested accommodation.  Allowing <br>a disabled employee a one-month leave of absence does not absolve <br>an employer's duty to accommodate, especially where the extra leave <br>requested is not expected to be prolonged or perpetual.  See Ralph, <br>135 F.3d at 171-72 ("The defendant argues that it has already made <br>a reasonable accommodation to the plaintiff's disability by giving <br>him 52 weeks of leave with pay, plus changing his work assignment <br>and supervisor.  The duty to provide reasonable accommodation is a <br>continuing one, however, and not exhausted by one effort.").  <br>Considering these facts the jury could have found that IBM <br>terminated Criado because of her disability. <br>                           G.  Damages <br>                     (1) Back and front pay <br>     The district court's damages award included a back pay <br>award, a front pay award, a compensatory damage award, and a <br>punitive damage award.  We hold that the evidence presented, viewed <br>in the light most favorable to the verdict, properly supported the <br>awards of back pay and front pay. <br>     Specifically, IBM contends that, even if the verdict in <br>favor of Criado was proper, the amount of damages should be reduced <br>because Criado would have been terminated in March 1995 as a result <br>of an IBM reduction in force.  Therefore, IBM says, back pay should <br>have been limited to the period from August 1994, when Criado was <br>terminated, to March 1995, and that no award of front pay was <br>justified because reinstatement was impossible.  In considering <br>whether Criado's damages award was proper the district court made <br>findings of fact that supported the jury's awards.  "This court <br>sets aside such findings only if they are 'clearly erroneous.'" <br>Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 952 (1st Cir. 1995) <br>(quoting Fed. R. Civ. P. 52(a)). <br>     The district court agreed with IBM that reinstatement was <br>not a proper remedy for Criado for several reasons.  Initially it <br>found that Criado's position at IBM was eliminated in March of <br>1995.  However, the court did not make a conclusive finding on <br>whether Criado would have been hired for a different position in <br>another department at IBM had she not been previously terminated.  <br>Instead it found that even if she was qualified for another open <br>position at IBM it would not order reinstatement because of her <br>relationships with her past supervisors.  The court limited <br>Criado's front pay to a period of six months noting that at that <br>time Criado should return to the work force.  The district court <br>also found that "plaintiff has been made whole through awards of <br>front and back pay."   <br>     The district court's factual findings are not clearly <br>erroneous, and it did not abuse its discretion in awarding back pay <br>and a limited amount of front pay where the jury determined that <br>such a remedy was warranted by the facts.  See Selgas, 104 F.3d at <br>12 (A court's decision to uphold a jury's award of damages is <br>within the district court's discretion, and we will not disturb <br>this discretion unless we find "strong evidence of a lapse in <br>judgment."). <br>                      (2) Punitive damages <br>     This circuit has held that under federal law the evidence <br>of intent that is necessary to support a punitive damages award "is <br>the same [evidence of] 'intent' that is required for a finding of <br>discrimination in the first place."  Dichner v. Liberty Travel, ___ <br>F.3d ___, 1998 WL 161137, *9 (1st Cir. 1998) (citing Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205 (1st Cir. 1987) <br>(recognizing that "the state of mind necessary to trigger liability <br>for the wrong is at least as culpable as that required to make <br>punitive damages applicable")).  Rowlett, relying on Smith v. Wade, 461 U.S. 30, 52-54 (1983), held that a finding of intentional <br>discrimination is sufficient to warrant punishment for a defendant <br>in order to deter future similar conduct if the jury exercising its <br>"discretionary moral judgment" so decides.  Rowlett, 832 F.2d at <br>205-06. <br>     The evidence in this case was sufficient to support a <br>finding of intentional discrimination; therefore, it was also <br>sufficient to support an award of punitive damages.  We cannot say <br>that the modified, combined punitive and compensatory damages award <br>of $300,000 is grossly excessive.  Accordingly, we affirm the <br>district court's award. <br>                   III.  Criado's Cross-Appeal <br>                      A.  Standard of Review <br>     In her cross-appeal Criado contends that the district <br>court erred by failing to award prejudgment interest and by <br>refusing to order her reinstatement.  Both of these decisions are <br>within the district court's discretion, and we review them only for <br>abuse of that discretion.  See Hogan v. Bangor & Aroostock R. Co., <br>61 F.3d 1034, 1038 (1st Cir. 1995) (whether to award prejudgment <br>interest is within discretion of district court); Rosario-Torres v. <br>Hernndez-Coln, 889 F.2d 314, 320 (1st Cir. 1989)("[R]einstatement <br>is a remedy which lies within the discretion of the trial court."). <br>                     B.  Prejudgment interest <br>     The decision to award prejudgment interest is within the <br>discretion of the trial court.  Hogan, 61 F.3d at 1038.  The <br>district court found that the large award of damages to Criado made <br>her whole and was sufficient to deter IBM from future wrongdoing.  <br>This decision is adequately supported and is not clearly erroneous.  <br>Considering the wide latitude the district court has in fashioning <br>an appropriate remedy we find no abuse of discretion on the part of <br>the district court in determining that prejudgment interest was not <br>appropriate. <br>                        C.  Reinstatement <br>     Following the jury trial the trial court held a full <br>evidentiary hearing on the issue of reinstatement.  It found that <br>the position Criado's held at IBM was eliminated soon after her <br>discharge.  Furthermore, it found that even if an alternative <br>position existed at IBM for which Criado was qualified, it would <br>not order reinstatement because of Criado's past relationship with <br>her former supervisors.  The court noted the nature of Criado's <br>disability and found that given the history of events between <br>Criado and IBM reinstatement was not a feasible remedy.  The <br>decision of whether to order reinstatement is within the district <br>court's discretion, see Rosario-Torres, 889 F.2d at 320, and it <br>adequately supported that decision.  We find no error in the denial <br>of Criado's request for reinstatement. <br>                         IV.  Conclusion <br>     We AFFIRM the district court on all issues raised by IBM <br>and Criado. <br></pre>

</body>

</html>

