
USCA1 Opinion

	




                            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                                         -2-          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                                         -3-          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                                         -4-          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          ___ ___         ________     _______________________________                                         -5-          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                                         -6-          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                                         -7-          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                                         -8-          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).                                         -9-                    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.                                         -10-                    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.                                         -11-
