

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1608

                        AGNES VERA-LOZANO,

                      Plaintiff - Appellee,

                                v.

                   INTERNATIONAL BROADCASTING,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                                                    

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Boudin, Circuit Judge,                                                     

                and Boyle,* Senior District Judge.                                                           

                                           

     Igor  J. Dom nguez-P rez,  with whom  Igor J.  Dom nguez Law                                                                           
Offices was on brief for appellant.                 
     Charles S.  Hey-Maestre, with whom Peter  Berkowitz and Rick                                                                           
Nemcik-Cruz were on brief for appellee.                     

                                           
                          March 22, 1995

                                           

                                                  

*  Of the District of Rhode Island, sitting by designation.

          Boyle,   Senior   District   Judge.       International                    Boyle,   Senior   District   Judge                                                      

Broadcasting Corporation  (IBC) appeals  a judgment based  upon a

jury  verdict in favor of  Agnes Vera-Lozano on  her claims under

Title VII of the Civil Rights Act of  1964 and Puerto Rico Laws 3

and 100.  IBC claims that the district court committed reversible

error when  it denied IBC's  Rule 50  motions for  judgment as  a

matter of law.  IBC also contends that the lower court improperly

exercised  supplemental  jurisdiction  over  claims  arising from

Puerto Rico Laws  3 and 100.  Finally, IBC  claims that the lower

court erred  in awarding compensatory damages  and excessive back

pay.  For the following reasons we affirm the court below.

                          I.  BACKGROUND                                    I.  BACKGROUND

          Appellee,  Vera,  filed  a  complaint  with  the  Anti-

Discrimination Unit of the Puerto Rico Department of Labor (UAD),

alleging employment  discrimination under Title VII  of the Civil

Rights Act  of 1964.  She  duly notified the  Appellant, IBC, who

did  not respond at that  time. The UAD  determined that probable

cause  existed  for  a  discrimination  suit  based  on  sex  and

pregnancy.

          The  complaint in the action below was filed on June 2,

1992, in the  United States  District Court for  the District  of

Puerto Rico.   The complaint  alleged claims arising  under Title

VII of the Civil Rights Act of 1964, 42 U.S.C.    2000e, et seq.,                                                                          

and invoked the court's  supplemental jurisdiction to hear claims

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arising under Puerto Rico Law 3, 29 P.R.L.A.   467,  et seq., and                                                                      

Law 100, as amended, 29 P.R.L.A.   146, et seq.  Jurisdiction was                                                         

exercised pursuant to 28 U.S.C.    1331, 2201 and 2202.

          Vera was a full-time  master control operator for Three

Star  Telecast  Corp.  (Three  Star), which  owned  and  operated

Channel 18 from  1984 until December  21, 1990, when  the station

was  taken over  by IBC.   The master control  unit regulates the

receiving and  broadcasting of  television transmissions.   There

were six master  control operators  at Three Star;  Vera was  the

most senior.

          Pedro  Rom n-Collazo   was   at  all   relevant   times

President, General  Manager, and owner  of IBC.   During  Rom n's

tenure,  IBC purchased the permit  to broadcast on  Channel 18 as

well as other assets of  Three Star Telecast.  Grisel Torres,  an

employee of IBC, became the general manager of Channel 18.

          On December 21, 1990, the last  day Three Star operated

Channel  18, it laid  off twenty employees,  retaining only four.

The new  owner assured the  dismissed former employees  that they

would be rehired.   In fact, several days prior  to the takeover,

Torres, instructed Philbert Modeste, who had been retained by IBC

to continue as the engineer in charge of the master control unit,

to prepare a  list of  three former  Three Star  employees to  be

hired.  That list included Vera.  Modeste testified at trial that

when he submitted the list to  Torres, she told him that Vera was

not eligible because "she was going to have a baby."

          Vera  gave  birth  on  January  22,  1991.    In  early

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February,  she went to Modeste  seeking employment.   He told her

that he would contact  Torres about a possible position  for her.

IBC,  however, never  contacted  Vera despite  the fact  that the

company  was seeking a master  control operator.  Vera discovered

that  an opening existed  at IBC from  a newspaper advertisement.

In response to this advertisement,  Vera again contacted Modeste.

Again, he  asked her  to resubmit  her resume. IBC  did not  hire

Vera.  Instead, the position was filled by a man, Pablo Mart nez,

who had never worked for Three Star.

                       II.  RULE 50 MOTION                                 II.  RULE 50 MOTION

          IBC  made a Rule 50 motion for  judgment as a matter of

law at  the close of Vera's  case.  IBC  alleged that it  was not

covered by Title VII because it did not have the requisite number

of employees.   This motion  was renewed  after the close  of the

defendant's case.

          Title  VII of  the Civil  Rights Act  of 1964  makes it

unlawful for  an employer to discriminate against  an employee on

account of  gender or pregnancy.  See 42 U.S.C.    2000e-2.   For                                               

the purposes of that  statute "employer" is defined as  "a person

engaged in an industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or more calendar

weeks in the current  or preceding calendar year."   42 U.S.C.   

2000e.   Since  IBC did not  own the  assets of  Three Star until

December  21, 1990, IBC cannot  be an employer  for that calendar

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year.

          Section 2000e-2  makes it unlawful for  an employer "to

fail  or  refuse  to hire  or  to  discharge  any individual,  or

otherwise discriminate against  any individual .  . . because  of

such  individual's  . .  . sex."     The  record shows  that Vera

reapplied for her former position of master control unit operator

on  two separate occasions in  1991.  IBC's  denial of employment

was  ongoing during  that  time.   The  "current year"  then,  as

defined by  the statute,  is 1991.   See Dumas  v. Town  of Mount                                                                           

Vernon, Ala., 612 F.2d 974, 979 n.4 (5th Cir. 1980).                      

          IBC  argues that part-time  employees should be counted

as employees for a given week only if they actually work all five

days of that  week.   We considered this  question in Thurber  v.                                                                       

Jack Reilly's Inc., 717 F.2d  633 (1st Cir. 1983), and found  the                            

law  in this  circuit to  be to  the contrary.   In  Thurber, the                                                                      

defendant was a small  bar in Cambridge, Massachusetts.   See id.                                                                          

Although  the defendant  had  only nine  full-time employees,  at

least  fifteen employees were on the payroll for more than twenty

weeks during the relevant calendar year.  See id. at 634.  On any                                                           

given day, only eleven of these employees reported for work.  See                                                                           

id.   We  concluded that  the defendant  was an employer  for the            

purposes of  Title VII.  See  id.  We reasoned  that the relevant                                          

employees  were not only those who were physically present at the

bar  each  day,  but all  those  who  had  an ongoing  employment

relationship with the employer during the requisite twenty weeks.

See id. (citing Pedreyra  v. Cornell Prescription Pharmacies, 465                                                                      

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F. Supp.  936, 941 (D.Colo. 1979);  Hornick v. Borough of Duryea,                                                                          

507 F. Supp. 1091, 1097 (M.D.Pa. 1980)).

          This  reasoning  is persuasive  especially in  light of

Title  VII's legislative  history.   While  Congress did  express

concern for  the over-regulation of small  businesses, it appears

to   have  adopted   the  definition   of  "employer"   from  the

Unemployment Tax  Act.  See 100 Cong. Rec. S13087 (daily ed. June                                     

9, 1964)  (statement of  Sen. Dirksen).  An  employee is  counted

under that statute  for each day that  an employment relationship

exists regardless  of whether the employee reported  to work each

day.   See  Rev. Rule  55-19, 1955-1 C.B.  496.   As we  noted in                    

Thurber, although it  is true that such a  reading of the statute                 

may  bring  within its  ambit a  number  of truly  "Mom  and Pop"

establishments,  the burden on  these businesses  would not  be a

considerable  one;  simply put, they could not discriminate.  See                                                                           

Thurber at 635.                 

          Counting both part-time and full-time  employees on the

payroll during 1991,  there is sufficient evidence  on the record

in the  form of testimony  of Vera  and Rom n to  support finding

that  IBC was  an employer  as defined  by Title  VII.   For this

reason we find  that the district court's  denial of the  Rule 50

motions was not in error.

                 III.  SUPPLEMENTAL JURISDICTION                           III.  SUPPLEMENTAL JURISDICTION

          IBC   contends  that  the   district  court  improperly

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exercised supplemental jurisdiction over the claims arising under

the Puerto Rico statutes.

          In  1990,  Congress enacted  28  U.S.C.    1367,  which

granted  federal courts "supplemental  jurisdiction" or  what had

formerly  been   referred  to  as   "pendent  jurisdiction"   and

"ancillary jurisdiction."  This section states that "in any civil

action over which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over all

other claims that  are so related to  claims in the action  . . .

that they form part of the same case and controversy."  28 U.S.C.

  1367 (1993).

          This statute  codified the Supreme  Court's analysis in

United Mine Workers v.  Gibbs, 383 U.S. 715 (1966).  See Sinclair                                                                           

v. Soniform,  Inc., 935 F.2d 599, 603 (3d Cir. 1991);  Bridges v.                                                                        

Eastman  Kodak Co., 800 F. Supp. 1172, 1178 (S.D.N.Y. 1992).  The                            

Court  stated  in  Gibbs  that  a   federal  court  may  exercise                                  

supplemental  jurisdiction  over a  state  claim  whenever it  is

joined  with a  federal claim and  the two claims  "derive from a

common  nucleus  of  operative  fact" and  the  plaintiff  "would

ordinarily  be  expected  to  try   them  both  in  one  judicial

proceeding."   Gibbs, 383  U.S. at  725;   Brown  v. Trustees  of                                                                           

Boston University, 891  F.2d 337, 356  (1st Cir.), cert.  denied,                                                                          

496  U.S.  937  (1989).   The  statute  expressly  states that  a

district court  may refuse to  exercise this jurisdiction  if the

state claim "substantially predominates  over the claim or claims

over  which the district court has original jurisdiction" or "the

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claim  raises a novel or complex issue  of state law."  28 U.S.C.

   3567(c)(1), (c)(2).

          IBC does not dispute that the federal and  state claims

arise out of the same set of facts.   IBC's only argument is that

the   district  court   abused   its  discretion   in  exercising

jurisdiction  over the  state claims  because the  state statutes

have different standards of  proof and may therefore  confuse the

jury.

          Because the  decision whether to  exercise supplemental

jurisdiction is  left to  the  broad discretion  of the  district

court, this decision will be disturbed only upon finding an abuse

of discretion.  See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.                                              

1991);  McCaffrey v. Rex Motor Transport, Inc., 672 F.2d 250 (1st                                                        

Cir. 1982).   Here there  is clearly  no such abuse:   the  state

claims do not predominate; Vera points to no novel issue of state

law;  and  joint adjudication  serves  the  interest of  judicial

economy  and fairness.  We therefore find that the district court

properly exercised supplemental jurisdiction.

                         IV.  JURY TRIAL                                   IV.  JURY TRIAL

          IBC claims that the district court committed reversible

error when  it tried the case before a jury.  The Constitution of

Puerto Rico does not afford litigants in a civil action the right

to trial by jury.  IBC contends therefore that the district court

erred  in allowing a jury to determine facts needed to decide the

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claims arising under the laws of Puerto Rico.

          This  claim is without merit.  It is well accepted that

the  Seventh Amendment  affords  litigants in  federal courts  in

Puerto  Rico the right to trial by jury, notwithstanding the fact

that the Constitution of Puerto Rico does not allow for juries in

civil cases.   See Marshall  v. P rez Arzuaga, 828  F.2d 845, 849                                                       

(1st Cir. 1987),  cert. denied, Avis  Rent-A-Car of Puerto  Rico,                                                                           

Inc. v. Marshall, 484 U.S. 1065 (1988);  LaForest v. Autoridad de                                                                           

las Fuentes Fluviales de P.R., 536 F.2d 443, 446 (1st Cir. 1976);                                       

see also Byrd  v. Blue  Ridge Cooperative, 356  U.S. 525,  536-40                                                   

(1958).

                           V.  DAMAGES                                     V.  DAMAGES

          IBC maintains  that the  trial court erred  by allowing

the jury to  award compensatory  damages based  on a  retroactive

application  of the  Civil  Rights Act  of  1991.   However,  the

verdict  form  correctly allowed  for  an  award of  compensatory

damages based on the  violation of either federal or  Puerto Rico                                                   

law.   Because the jury's  finding that IBC  violated Puerto Rico

law would  alone support the  award of compensatory  damages, the

submission  of  the  claim based  on  the  Civil  Rights Act,  if

incorrect,  was  harmless  error  and will  not  be  disturbed on

appeal.   See Shepp v. Uehlinger, 775  F.2d 452, 456-57 (1st Cir.                                          

1985);   see also  Gillentine v. McKeand, 426  F.2d 717, 724 (1st                                                  

Cir. 1970).

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          IBC also  complains that the amount  of damages awarded

for  back pay is  not supported by  the evidence.   IBC failed to

raise this issue  in the court below either during  trial or in a

post-verdict  motion to set-aside the verdict.  As a general rule

a Court  of Appeals  will not  consider an  issue raised  for the

first  time  on appeal  absent  exceptional  circumstances.   See                                                                           

Refuse and Environmental Systems,  Inc. v. Industrial Servs., 932                                                                      

F.2d 37,  41 (1st  Cir. 1992);  Mello v.  K-Mart Corp.,  792 F.2d                                                                

1228,  1233  (1st Cir.  1982).   Here,  there are  no exceptional

circumstances and thus we consider the issue to be waived.

          Had IBC  properly raised  this issue below,  the result

would be unchanged.   For the party seeking  to attack the amount

of  jury-awarded damages,  the applicable  standard of  review is

daunting.  We will not  disturb an award of damages for  economic

loss "provided it does  not 'violate the conscience of  the court

or strike such  a dissonant  chord that justice  would be  denied

were the judgment permitted  to stand.'"  See Havinga  v. Crowley                                                                           

Towing  and Transportation  Co.,  24 F.3d  1480,  1489 (1st  Cir.                                         

1994)(quoting Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st                                                     

Cir. 1988));   Linn v.  Andover Newton Theological  School, Inc.,                                                                          

874 F.2d 1,  6 (1st Cir. 1989).  "Generousness  of a jury's award

does not alone justify  an appellate court in setting  it aside."

Kolb v. Goldring, Inc., 694 F.2d 869, 871 (1st Cir. 1982).  Under                                

this  standard the court should "examine the evidence in detail .

. . and in a light most favorable to the plaintiff."  Havinga, 24                                                                       

F.3d at 1489.

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          There  is ample  support in the  record for  the jury's

verdict  as to  back pay.   IBC's  main contention  is  that Vera

failed to  mitigate her damages  by voluntarily resigning  from a

job as a receptionist in February of 1992.  IBC  claims that back

pay  should not be awarded  during the period  beginning with the

date of her voluntary resignation until the date the judgment was

entered.  We  will not  supplant the jury's  verdict nor  second-

guess  what may  have been  their  thought process  regarding the

voluntary  nature  of  Vera's   resignation  or  her  efforts  to

mitigate.  This reluctance is especially appropriate in light  of

evidence, in the form of  Vera's testimony, supporting a possible

finding that the receptionist job provided no additional economic

support given the irregular work schedule, the cost of child care

for her two children and the low pay.

                         VI.  CONCLUSION                                   VI.  CONCLUSION

          For the foregoing reasons, we affirm.

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