

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit

                                         
No. 95-2027

                 SANDRA RODRIGUEZ-HERNANDEZ,

                     Plaintiff, Appellee,

                              v.

                 EDWIN MIRANDA-VELEZ, ET AL.,

                   Defendants, Appellants.

                                         
No. 96-1416

                 SANDRA RODRIGUEZ-HERNANDEZ,

                     Plaintiff, Appellee,

                              v.

                 EDWIN MIRANDA-VELEZ, ET AL.,

                   Defendants, Appellants.

                                         
No. 97-1444

                 SANDRA RODRIGUEZ-HERNANDEZ,

                     Plaintiff, Appellee,

                              v.

                 EDWIN MIRANDA-VELEZ, ET AL.,

                   Defendants, Appellants.

                                         

No. 97-1445

                 SANDRA RODRIGUEZ-HERNANDEZ,

                    Plaintiff, Appellant,

                              v.

                 EDWIN MIRANDA-VELEZ, ET AL.,

                    Defendants, Appellees.

                                         

        APPEAL FROM THE UNITED STATES DISTRICT COURT 

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                         

                            Before

                    Lynch, Circuit Judge,                                                    
                  Cyr, Senior Circuit Judge,                                                       
               and DiClerico,* District Judge.                                                         

                                         

Judith Berkan,  with whom  Rosalinda Pesquera and  Mary Jo  Mendez                                                                              
were on brief, for plaintiff.
Eugene  F. Hestres, with whom  Bird, Bird &amp; Hestres  was on brief,                                                               
for defendants.
Frank D. Inserni on brief pro se.                            

                                         

                       January 6, 1998

                                         

                                            

*  Of the District of New Hampshire, sitting by designation.

          LYNCH, Circuit  Judge.   Sandra Rodriguez-Hernandez                      LYNCH, Circuit  Judge.                                           

was discharged from her job at Occidental International after

complaining  to her  employer about  being  subjected to  the

sexual demands of a high-level executive at Occidental's most

important customer.  The main issues presented by this appeal

are  whether the  jury's  verdict in  favor  of the  customer

dictates that the  verdict against her employer  be reversed;

whether   the  court's   evidentiary  and   juror  peremptory

challenge rulings were  correct; whether  the district  court

evinced  bias against the defendants; and whether the court's

attorney's fees award was adequate.   We affirm the  verdict,

but we vacate and remand on the attorney's fees issue.

                              I.

          We review the facts in  the light most favorable to

the jury's verdict.  See Ansin v. River Oaks Furniture, Inc.,                                                                        

105 F.3d 745, 749 (1st  Cir. 1997), cert. denied, 118 S.  Ct.                                                            

70 (1997).

          Rodriguez   worked   as  an   office   manager  for

Occidental International, a Florida  company with offices  in

Florida  and  Puerto  Rico.   Rodriguez  started  working for

Occidental  in  December of  1988 in  the Traffic  and Claims

division of the Puerto Rico  office.  She was twice promoted,

and was put  in charge of overseeing the  daily operations of

her office in February of 1990.  While she was never formally

evaluated during  her employment, Rodriguez  received regular

praise for her work, and  before the suspension and dismissal

that led to this lawsuit,  she had never been the subject  of

disciplinary action.

          Occidental  International   sells  electrical   and

industrial equipment.  Occidental's most important market was

Puerto Rico, and its most  important customer was the  Puerto

Rico Electric  Power Authority  ("PREPA").   At  the time  of

Rodriguez's  dismissal,  approximately  80%  of  Occidental's

business in Puerto Rico was with PREPA.

          Omar Chavez was the President and sole  shareholder

of  Occidental.   Chavez  lived  in Florida,  and  would make

monthly  business trips  to Puerto  Rico.   Chavez pursued  a

number  of strategies which he thought would ensure continued

good  relations   between  Occidental   and  its   customers,

particularly  with PREPA.  Evidence presented at trial showed

that Chavez primarily employed young, attractive women, known

to customers as "Occidental Gals," and  instructed them to be

especially cordial to PREPA employees.  

          Good  relations  were particularly  important  with

high-ranking PREPA  officials like  Edwin Miranda-Velez,  the

Chief  of  PREPA's  Materials  Management  Division  and  the

overseer of  PREPA's public contracts  for the type  of goods

sold  by Occidental.  Chavez introduced Rodriguez to Miranda,

and told her that Miranda was very important for Occidental's

                             -3-                                          3

business and that she and  the other employees should be nice

to him and "keep him satisfied."  She was instructed to visit

Miranda every time she went to the PREPA offices.

          Occidental  pursued  other  strategies.    It  made

political contributions to  the Popular Democratic  Party, of

which  Miranda  was  a  very  active  member,  and  solicited

donations on its  behalf.  Chavez financed  social activities

for  PREPA employees  and gave  Christmas  presents to  PREPA

officials.   In December  of 1990, Chavez  threw a  party for

PREPA  officials  at a  local  hotel.    The members  of  the

Occidental  Puerto Rico staff, all female, were instructed to

attend the event unaccompanied, so they would be available to

dance with the  PREPA executives.  The  night's entertainment

at  that party included a dancing  show performed by scantily

clad women.

          The  close   relationship  with   PREPA  benefitted

Occidental, and Chavez, in several  ways.  Chavez was able to

learn from  Miranda in advance  what bids would be  coming up

and  how much Occidental's competitors were bidding.  Miranda

helped to steer  business to Occidental through  requests for

proposals  that were  handled  outside  the ordinary  bidding

process.   For example, Miranda helped Occidental to obtain a

transportation  contract  on an  "emergency" basis.   Miranda

signed all pertinent  documentation and recommended  payments

                             -4-                                          4

to suppliers.   There were also allegations that  Miranda was

able to help Occidental avoid trouble over tax disclosures.

          Miranda  began  to  make  unwelcome approaches  and

suggestive  comments to  Rodriguez.   He invited  her out  to

dinner.  He  asked her to visit his office after hours and on

Friday evenings.   He  anonymously sent  her flowers for  her

birthday  and included a  sexually explicit card.   Rodriguez

complained to Chavez about this behavior; Chavez responded by

stressing that Miranda  was an important client,  but assured

her that he would deal with the problem.  

          The culmination, as it were, of Miranda's  advances

came on February 28, 1992.  Miranda called Rodriguez and told

her he  would  come pick  her  up to  take  her to  a  motel.

Rodriguez, upset  by Miranda's latest advance,  called Chavez

to  complain about  Miranda's  call.    Chavez  responded  by

defending Miranda, and  saying that Rodriguez should  respond

to Miranda  "as a woman."   Rodriguez told Chavez  that if he

would  do  nothing about  the situation,  she would  take her

complaints to the Director of PREPA.

          That weekend, Chavez flew to Puerto Rico.  On March

9, 1992, Chavez  gave Rodriguez a  letter informing her  that

she  was suspended  from work  for thirty  days.   The letter

stated the reasons for her suspension as unauthorized  use of

company property,  contracting  for services  in the  company

name without  authorization, and  absenteeism.   On April  6,

                             -5-                                          5

Rodriguez  received  a  second  letter  dismissing  her  from

employment at Occidental.  The grounds for her dismissal were

an unexplained  imbalance of $157.00 in petty  cash funds and

negligence  in executing daily  functions such as  picking up

company mail,  as well as the  problems noted in the  March 9

letter.   Rodriguez  had  never been  notified  of  any  such

deficiencies before.

                             II.

          In  September of 1992,  Rodriguez filed a complaint

against Occidental  and Chavez  with the  Anti-Discrimination

Unit  of the  Puerto Rico  Department of  Labor and  with the

Equal  Employment  Opportunity  Commission.   In  November of

1992, while that  complaint was before the  agency, Rodriguez

sued Miranda  in district  court under 42  U.S.C.    1983 for

violations   of  her  rights  under  the  Fifth,  Ninth,  and

Fourteenth  Amendments, and sued both Miranda and PREPA under

Puerto Rico tort law and the Puerto Rico Constitution.

          After  exhausting   her  administrative   remedies,

Rodriguez received  a right-to-sue  letter from  the EEOC  in

June of  1993 and  amended her complaint  to name  Chavez and

Occidental  as defendants.   The  amended complaint  asserted

claims under Title VII  of the Civil  Rights Act of 1964,  42

U.S.C.    2000e-2000e-17, as well as claims under Puerto Rico

law.  

                             -6-                                          6

          In July of 1994, the district court issued an order

eliminating some of  Rodriguez's claims.  The  district court

dismissed  the    1983 claim,  but  not the  Puerto Rico  law

claims, against  Miranda.  Thus  only Puerto Rico  law claims

remained  against Miranda  and PREPA,  over  which the  court

retained  jurisdiction under 28 U.S.C.    1367.  The district

court granted summary  judgment in favor of  defendant Chavez

on  Rodriguez's Title VII  claim against Chavez,  but allowed

the Puerto Rico law claims against Chavez to go to  the jury.

Thus the only federal claim that remained at the start of the

trial was Rodriguez's  Title VII claim against  her employer,

Occidental.  The  only claims which went to  the jury against

Miranda were based on commonwealth law.

          The  trial   was  hotly  contested   and  extremely

contentious.  In the course  of the trial, the district court

sanctioned  defense counsel for violating an order in limine.

After a five week trial,  the jury held Occidental and Chavez

liable  to  the plaintiff,  but found  Miranda and  PREPA not

liable.   The jury form  simply asked that the  jurors answer

yes or no as to whether each of the defendants was "liable to

plaintiff  Sandra Rodriguez."  Rodriguez received an award of

$200,000  in   compensatory  and  punitive   damages  against

Occidental  and Chavez.    The  jury answered  no  as to  the

commonwealth law claims against Miranda.

                             -7-                                          7

          The  district  court awarded  Rodriguez  attorney's

fees.    But  in  the   face  of  a  documented  request  for

approximately $440,000 in  fees and costs, the  court awarded

only $150,223.26.  The district court disallowed some work as

duplicative,  some as having been performed by attorneys when

the court thought it should have been done by paralegals, and

further reduced the award because of the plaintiff's "lack of

success."

          Occidental and Chavez appeal from  the jury verdict

in cases  number  96-1416 and  97-1444,  alleging a  host  of

errors and  demanding a new  trial.  Defense  counsel Inserni

appeals in case number 95-2027 from the contempt order issued

against  him during the  trial.  Plaintiff  cross-appeals, in

case  number 97-1445, arguing that the district court's award

of attorney's fees was in error and insufficient.

            III.  Appeal of Occidental and Chavez

A.  Jury Inconsistency Argument                                           

          Occidental and  Chavez's flagship  argument, simply

put, is that because the jury did not find either  Miranda or

PREPA  liable to Rodriguez,  Chavez and Occidental  cannot be

held liable either.  Rodriguez  could not have been dismissed

for refusing  to submit to  (or threatening  to complain  of)

Miranda's  advances,  defendants  argue,   because  the  jury

verdict  shows that Miranda  never engaged in  the conduct of

                             -8-                                          8

which she  complains.   This  argument  is founded  upon  the

erroneous assumption that the jury's verdict that Miranda and

PREPA are not "liable to plaintiff" under Puerto Rico tort or

constitutional  law necessarily means  that the jury  did not

believe  that  Miranda made  unwanted  sexual advances,  that

Rodriguez complained of these advances, and that her employer

fired her in response.

          The defendants'  argument fails, as the  jury could

quite plausibly have  found a set of facts  that would render

Chavez  and Occidental, but not Miranda and PREPA, "liable to

plaintiff" on the claims asserted.

          In  order to evaluate the defendants' arguments, it

is important to  understand the nature of  the claims brought

against each of the four  defendants in this case.  Rodriguez

sued  the  customer, Miranda  and  PREPA on  two  theories --

liability  under  Puerto  Rico  tort  law  and  violation  of

Rodriguez's  rights to "privacy and dignity" under the Puerto

Rico Constitution.   The jury  was instructed  that, to  find

Miranda liable to the plaintiff in negligence, it had to find

"that there was  an act or omission, by  fault or negligence,

that caused the plaintiff's injury."  See P.R. Laws Ann. tit.                                                     

31,   5141  (1991) ("A person who  by act or omission  causes

damage  to another  through  fault  or  negligence  shall  be

obliged to repair  the damage so done.  Concurrent imprudence

                             -9-                                          9

of  the party aggrieved  does not exempt  from liability, but

entails a reduction in the indemnity.")

          For  Miranda to be liable under the Constitution of

Puerto Rico, the  jury was instructed that it  must find that

Miranda "engaged  in  conduct  against  the  plaintiff  which

adversely affected her dignity, honor, or reputation . . . ."

See P.R. Const. art. II,   1 ("The dignity of the human being               

is  inviolable. .  . .  No  discrimination shall  be made  on

account of .  . . sex  . . .  ."); P.R. Const.  art. II,    8

("Every person has the right to the protection of law against

abusive  attacks  on  his honor,  reputation  and  private or

family life.").  

          If  Miranda was not liable to Rodriguez under these

two  theories,  then  PREPA  could  not  be  found liable  to

Rodriguez either.   PREPA's liability was only  in respondeat

superior for the actions of Miranda.

          Both of the claims as described to the jury contain

an element  of causation.   The jury may simply  have decided

that  Rodriguez's   injuries  resulted  not   from  Miranda's

actions, but from  those of Chavez and Occidental.   Thus the

jury may have  declined to hold  Miranda liable, not  because

the jurors did not believe  that he made sexual advances, but

rather  because they  concluded that  this  behavior did  not

itself cause the harms Rodriguez suffered.

                             -10-                                          10

          In contrast, the  plaintiff asserted four different

theories of liability  against Chavez under Puerto  Rico law,

none of which is inconsistent with the jury's refusal to hold

Miranda  and PREPA  liable.    In addition  to  the tort  and

constitutional claims described above, Rodriguez sued  Chavez

for  sex discrimination  and retaliatory  discharge.   Puerto

Rico's Law 100  forbids sex discrimination by  employers, and

provides for civil liability and damages.  See P.R. Laws Ann.                                                          

tit.  29,    146 (1995).   Puerto Rico's  Law 17  defines sex

harassment  as  a  type of  sex  discrimination,  and forbids

retaliation  against  persons  who  "reject"  the  employer's

sexually discriminatory practices.   See P.R. Laws  Ann. tit.                                                    

29,    155-155l  (1995).  Under Puerto Rico  law, an employer

is  held responsible  for  "the  acts  of  sexual  harassment

towards his  employees  in  the work  place  by  persons  not

employed by him if the  employer or his agents or supervisors

knew or  should have known  of such conduct and  did not take

immediate  and adequate  action  to correct  the  situation."

P.R. Laws Ann. tit. 29,   155f.

          The  plaintiff  also  sought  separation  pay  from

Chavez  and Occidental for unjust dismissal under Puerto Rico

Law 80.   See P.R. Laws Ann.  tit. 29,   185a  (1995) ("Every                         

employee  in  commerce .  .  .  who  is discharged  from  his

employment without good  cause, shall be entitled  to receive

from  his employer,  in addition  to the  salary he  may have

                             -11-                                          11

earned:  (a)  The  salary  corresponding  to  one  month,  as

indemnity; (b) An additional progressive indemnity equivalent

to  one  week for  each  year  of  service.").   Further,  in

addition to the same four  causes of action under Puerto Rico

law  asserted against  Chavez, Rodriguez sued  Occidental for

sex discrimination under Title VII.

          We  cannot, based on the jury form, determine which

of   Rodriguez's  claims   against   Chavez  and   Occidental

succeeded.  The jury was asked only to answer yes or no as to

whether  each  defendant  was  "liable  to  plaintiff  Sandra

Rodriguez."   The jury  could have  properly decided  to hold

Chavez  and  Occidental  liable  because  they  discriminated

against Rodriguez  on the basis  of her sex, or  because they

retaliated  against her  for her  complaints about  Miranda's

behavior.  

          Sexual  harassment  is  an  unlawful  form  of  sex

discrimination,  and both Chavez and Occidental could be held

liable for sex  harassment on either of two  theories -- quid

pro quo or hostile work environment.  

          Under  the   quid  pro   quo  theory,   Rodriguez's

continued  employment  was  conditioned  on  coerced  sex,  a

condition that was  inherently linked to her  gender.  Puerto

Rico  law, see  P.R. Laws  Ann.  tit. 29,    155f,  and other                          

circuits,  interpreting Title VII,  have said  that employers

can be liable for a  customer's unwanted sexual advances,  if

                             -12-                                          12

the  employer  ratifies  or   acquiesces  in  the  customer's

demands.  See  Folkerson v. Circus Circus  Enters., Inc., 107                                                                    

F.3d 754,  756 (9th  Cir. 1997).   This  is a  case in  which

Rodriguez's employer  not only acquiesced  in the  customer's

demands, but explicitly told her  to give in to those demands

and satisfy the customer.  This conduct is clearly an example

of  quid pro quo  sexual harassment, as  Rodriguez's employer

conditioned her  future with the company on her responding to

the unwanted sexual demands of a customer.

          Under  the hostile work  environment theory  of sex

discrimination,  the jury  could  have reasonably  found that

Chavez and Occidental  had established a  working environment

hostile to women.   The jury was instructed  that this theory

of  sex discrimination  "involves  forms of  sexually-related

misconduct which  are severe  and pervasive  and unreasonably

interfere  with  work   performance  or  create  a   hostile,

intimidating  or  offensive  working  environment.    It  can

include  demeaning  comments  or  expectations  of  a certain

sexual behavior in the workplace."  This environment would be

a product not  only of Chavez's refusal to  do anything about

Miranda's advances, but  also of incidents  such as the  1990

Christmas party.

          Likewise, the success  of a retaliation claim  does

not  require  that  the alleged  wrongful  conduct  itself be

illegal.   For her  retaliation claim  to succeed,  Rodriguez

                             -13-                                          13

merely needed to show that she "reasonably believed" that the

conduct of  which she  complained or  threatened to  complain

violated Title VII.  See Wyatt v. City of Boston, 35 F.3d 13,                                                            

15 (1st Cir. 1994);  Petitti v. New England Tel.  &amp; Tel. Co.,                                                                        

909 F.2d 28, 33 (1st  Cir. 1990); Drinkwater v. Union Carbide                                                                         

Corp.,  904 F.2d 853, 865 (3d  Cir. 1990) (noting that a long                 

line  of  cases   holds  that  a  "plaintiff   establishes  a

retaliation claim  if she  shows that  she  had a  reasonable

belief  that  the   employer  was  engaged  in   an  unlawful

employment practice and that the employer  retaliated against

her for protesting that practice.").  The jury may have found

that the close relationship between PREPA and Occidental made

it  reasonable   for  Rodriguez  to  believe  that  Miranda's

unwanted  advances  constituted  unlawful  sexual  harassment

about which she had a right to complain.

B.  Peremptory Challenges                                     

          Defendants   challenge    the   district    court's

disallowance  of two of their peremptory challenges.  Because

this  determination is fact-sensitive, we review it for clear

error.   See Brewer v.  Marshall, 119 F.3d 993,  1004-05 (1st                                            

Cir.  1997); see  also Purkett  v.  Elem, 514  U.S. 765,  767                                                    

(1995) (per  curiam).  Initial  juror selection in  this case

began with a panel of  sixteen jurors containing nine men and

                             -14-                                          14

seven   women.    The  court  then  granted  each  side  four

peremptory challenges, leaving eight jurors.  

          Plaintiff  objected to the  defendants' use  of all

four of their peremptory challenges to exclude women from the

jury panel, arguing  that these peremptory challenges  were a

violation  of the  Equal Protection  Clause  under J.E.B.  v.                                                                     

Alabama ex rel. T.B., 511  U.S. 127 (1994) (extending  Batson                                                                         

v.  Kentucky, 476 U.S.  79 (1986) to  gender-based peremptory                        

challenges in civil  cases).  The defendants  explained their

challenges on gender-neutral grounds, but the  district court

disallowed two of the peremptory challenges, stating that the

explanations   were   merely    a   pretext   for    unlawful

discrimination.

          The  district  court  noted,  properly,  that   its

decision  to disallow the two peremptory challenges was based

on the totality of the  circumstances of the litigation.  See                                                                         

Hernandez  v. New  York,  500  U.S. 352,  364  (1991).   Upon                                   

examination  of  the  judge's  justification  and  the  trial

record,   we  do  not  find  his  decision  to  disallow  the

peremptory challenges to be clearly erroneous.

C.  Evidentiary Rulings                                   

          We review  a district  court's evidentiary  rulings

for abuse  of discretion.   See General Elec. Co.  v. Joiner,                                                                        

No. 96-188, 1997 WL 764563, at *3 (U.S.  Dec. 15, 1997); A.W.                                                                         

                             -15-                                          15

Chesterton Co. v. Chesterton, 128  F.3d 1, 9 (1st Cir. 1997).                                        

Errors in  evidentiary rulings are  harmless if it  is highly

probable that  the error  did not affect  the outcome  of the

case.  See Harrison v. Sears, Roebuck &amp; Co., 981 F.2d 25, 29-                                                       

30 (1st Cir. 1992).

1.  Rulings under Rule 412                                      

          Defendants continually  sought to make an  issue of

plaintiff's   sexual  history.     In  the  course   of  this

litigation, defendants attempted  to paint  the plaintiff  as

sexually insatiable,  as  engaging in  multiple affairs  with

married men, as  a lesbian, and as suffering  from a sexually

transmitted  disease.2  Defendants claimed that plaintiff had

an  affair with  a  married  man that  caused  her to  become

distracted from work, and led to the lapses for which she was

fired.

          Fed. R. Evid. 412 was designed to prevent misuse of

a  complainant's sexual history  in cases  involving "alleged

sexual misconduct."   In a civil case, the  sole exception to

Rule 412's prohibition of evidence offered to prove "that any

alleged  victim engaged  in other  sexual  behavior" or  "any

alleged victim's sexual predisposition" is that

        evidence offered to prove the sexual behavior
        or  sexual  predisposition   of  any  alleged
        victim  is  admissible  if  it  is  otherwise

                                                    

2.  During  discovery,  defendants requested  that  plaintiff
submit  to an  AIDS test,  apparently  to substantiate  their
allegations of promiscuity.  The request was denied.

                             -16-                                          16

        admissible   under   these  rules   and   its                                                                 
        probative value  substantially outweighs  the                                                                 
        danger  of harm to  any victim and  of unfair                                                                 
        prejudice  to any  party.    Evidence  of  an                                            
        alleged  victim's  reputation  is  admissible
        only  if it has been placed in controversy by
        the alleged victim.

Fed.  R. Evid.  412(b)(2)  (emphasis added).   Rule  412 thus

reverses the usual  approach of the Federal Rules of Evidence

on admissibility  by requiring that the  evidence's probative

value "substantially outweigh" its prejudicial effect.  

          Rule  412  mandates procedural  safeguards  for the

introduction of such evidence under the  412(b)(2) exception.

A party intending  to offer such evidence must  file a motion

specifically describing the evidence and its purpose at least

fourteen days before trial, serve  the motion on all parties,

and notify the alleged victim.  Before admitting the evidence

the court  must conduct  an in camera  hearing to  afford the

victim and parties  a right to be  heard.  See Fed.  R. Evid.                                                          

412(c).

          The district court  ruled that evidence  concerning

plaintiff's  moral character  or promiscuity and  the marital

status of her boyfriend was inadmissible under Rule 412.  But

the court  allowed defendants to introduce  evidence directly

relevant  to  their   theory  that  plaintiff's  relationship

distracted her from work.   The court also held that evidence

concerning plaintiff's allegedly  flirtatious behavior toward

                             -17-                                          17

Miranda  was   admissible  to  determine   whether  Miranda's

advances were in fact "unwanted."

          These  evidentiary  rulings  were  well within  the

district  court's discretion.  The court struck an acceptable

balance between the danger of undue prejudice and the need to

present  the  jury  with relevant  evidence,  particularly in

light of Rule 412's special standard of admissibility.

2.  Rulings under Rule 403                                      

          Nor  is  there  any  abuse  of  discretion  in  the

district  court's other evidentiary  rulings.  Under  Fed. R.

Evid.  402,  all  relevant  evidence  is  admissible   unless

otherwise provided  by federal law.   See Fed. R.  Evid. 402.                                                     

Under Fed. R. Evid. 403, relevant evidence may be excluded if

its  probative value  is  "substantially  outweighed" by  the

danger of prejudice or confusion.  See Fed. R. Evid. 403.                                                    

          Defendants  challenge  the   exclusion  of  certain

telephone  records, rebuttal evidence  by some of plaintiff's

co-workers, and an answering machine tape.  We agree with the

district court  that the  testimony and  phone records  would

have been, at best, cumulative.  The district court conducted

lengthy proceedings  over the  admissibility of  an answering

machine tape  produced by  Chavez that  purportedly contained

several  messages from Rodriguez  to Chavez that  could imply

that they had been intimate.   The defendants argue that this

piece  of evidence would  have shown that  "plaintiff treated

                             -18-                                          18

Chavez  affectionately and could not have been complaining of

sexual harassment."  An FBI analysis of the voice on the tape

was  inconclusive.    The  court  ruled  that  the  tape  was

inadmissible under Fed. R. Evid.  403, and we agree that this

dubious evidence had  minimal probative value, and  had great

potential to confuse the jury.

          Defendants complain of  a "double standard" because

the  district   court  allowed   information  introduced   by

plaintiff while excluding  evidence introduced by  defendant.

The  court allowed evidence concerning the close ties between

Occidental  and   PREPA,  including  evidence   of  political

donations, Occidental's tax  status, the dancing show  at the

1990  Christmas party,  and a  letter  regarding Occidental's

sales volume.  In fact, as to the  excluded evidence, Fed. R.

Evid. 412  required the  district court  to apply a  stricter                               

standard  with regard to admission of evidence of plaintiff's

sexual history than to  the evidence admitted under the  more

liberal standard of Fed. R.  Evid. 402 &amp; 403.   This evidence

was  directly relevant to  the theory of  Rodriguez's case --

that Chavez and Occidental were  willing to fire her when she

complained about  Miranda in  order to  maintain their  close

relationship with Miranda and PREPA.

          Having  examined  each  of  the  district   court's

evidentiary rulings, we find none that represents an abuse of

its discretion.  Even if  the court's exclusions were  error,

                             -19-                                          19

none of the excluded evidence would have had an impact on the

outcome  of  the  trial,  as  it  would  have  at  best  been

duplicative of evidence that was admitted.

D.  Claims of Judicial Bias                                       

          Occidental and Chavez argue that the district court

judge's  admonitions to  defense counsel  evince bias,  which

tainted  the jury  verdict.   They claim  that this  bias was

further  demonstrated  by  the  judge's  rulings  on  defense

counsel's peremptory  challenges, exclusion of  evidence, and

his sanctioning defense counsel for violating an  evidentiary

ruling under  Fed. R. Evid.  412.  The contested  rulings are

discussed elsewhere, and they were  entirely proper.  Most of

the comments  appellants complain  of were  made outside  the

hearing of the jury.  

          At the  very latest,  this claim  should have  been

raised  in defendants'  Rule 50  motion  before the  district

court.   It is  therefore waived.   See In  re Abijoe  Realty                                                                         

Corp.,  943 F.2d  121, 126-27  (1st  Cir. 1991).   Claims  of                 

judicial partiality  must be  raised at  the earliest  moment

that a litigant becomes cognizant of the purported bias,  and

certainly not for the first time on appeal.  See id.;  cf. In                                                                         

re Marisol Martinez-Catala, 129 F.3d 213, 219 (1st Cir. 1997)                                      

(explaining  procedures  for  judicial  disqualification  and

noting that "disqualification is almost never required  where

                             -20-                                          20

the judge's opinions are based on the proceedings").  A party

may not simply wait to see what outcome he or she receives in

a trial before an allegedly  biased judge.  See In re  United                                                                         

Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960).                            

          To allay any suspicions of judicial taint, however,

we note  that, having read  the entire trial record,  we find

none.   The isolated, occasional comments cited by appellants

fall  far  short  of  prejudice  and do  not  come  close  to

supporting  a contention that  defendants were deprived  of a

fair trial.  See United States v. Devin, 918 F.2d 280, 294-95                                                   

(1st Cir. 1990); Aggarwal v. Ponce Sch. of Med., 837 F.2d 17,                                                           

22 (1st Cir. 1988).  The judge's scattered critical  comments

were largely made out of the jury's hearing, and usually were

in  direct response  to defense  counsel's interruptions  and

unsuitable conduct.   See United States  v. Polito, 856  F.2d                                                              

414,  418 (1st Cir.  1988) ("Charges of  partiality should be

judged  not on an isolated comment  or two, but on the record

as a whole.").  The  entirety of the record reveals  that the

judge evinced  not bias, but  rather a desire to  conduct the

trial  in as  civil a manner  as possible.   That  desire was

evidently  not  shared  by counsel  for  the  defendants, and

rebukes for this lack of civility were entirely warranted.

           IV.  The Sanction Order Against Counsel

          Attorney  Inserni  appeals   the  district  court's

                             -21-                                          21

decision   to  sanction  him  for  violating  a  court  order

prohibiting mention of matters such  as the marital status of

plaintiff's boyfriend  without first  clearing such  evidence

with the  court to allow it to make  a final Rule 412 ruling.

During  plaintiff's  testimony,  the  court  ruled  that  the

marital status of plaintiff's  boyfriend was not  admissible,

and  admonished counsel to  approach the bench  before asking

any  question that  might  raise  concerns  under  Rule  412.

Attorney Inserni subsequently asked plaintiff's psychologist,

in front  of the jury,  "Did [the plaintiff] tell  you during

your interviews or during your clinical work on her case, did

she ever  mention to you that she  had multiple relationships                                                                         

with married men?"3   The district court  properly noted that                            

this  question violated  its  ruling,  rebuked counsel  after

first dismissing  the jury,  and fined him  $500.   The court

later instructed the jury that  counsel had violated a  court

order  and  jurors  were to  disregard  the  question.   This

response  was fully  justified, and  we find  no error.   See                                                                         

Polito, 856 F.2d at 418.  Inserni shall pay the costs  of his                  

appeal to plaintiff.

                    V.  Plaintiff's Appeal

          Rodriguez appeals the district court's reduction of

                                                    

3.  We  add, as the  district court understood,  that defense
counsel  knew from her deposition that the psychologist would
answer "no" to that question.

                             -22-                                          22

her  attorney's  fees  and  costs  award  from  approximately

$440,000 to $150,223.26.  As  noted above, the district court

justified  this reduction on  several grounds: duplication of

effort by  plaintiff's attorneys,  the use  of attorneys  for

"paralegal  work," and the plaintiff's lack  of success.  The

court  uniformly cut the attorneys' requested hourly rates by

fifteen  dollars, except  for Attorney  Berkan's out-of-court

rate, which it cut by ten dollars.  The court reduced the fee

request to $346,211.53, and then reduced this amount by sixty

percent because of the plaintiff's "lack of success."

          Starting  with the  "lodestar"  calculation of  the

hours  worked by each  attorney multiplied by  the attorney's

hourly rate, the  court deducted time that  it determined was

duplicative  or unnecessary.  The court  deducted 97 hours of

attorney time because  it viewed the  time spent on  indexing

depositions as excessive, and agreed with defendants that the

work was  a "paralegal task."   The court  noted a  number of

entries on  plaintiff's counsels' time  sheets that suggested

duplicative   efforts.    The  court  calculated  that  these

duplicative  efforts  totaled  120 hours,  and  deducted this

amount.  Thirteen more hours were deducted for excessive time

in preparing the attorney's fees petition.

          The  court  determined that  it  was  excessive for

three  attorneys to  be present  at trial,  and  adjusted the

hours so that  the time compensated amounted to  that of only

                             -23-                                          23

two attorneys at any given time.  The court uniformly reduced

the  requested  hourly  rates  of  Rodriguez's  attorneys  by

fifteen dollars,  except for  Attorney Berkan's  out-of-court

hourly rate,  which it  reduced by ten  dollars.   Because it

determined that the plaintiff enjoyed only limited success in

each  of  her theories  of  recovery, the  court  reduced the

lodestar figure by sixty percent of the total amount.

          Fee awards are reviewed  deferentially, and will be

disturbed only for  mistake of  law or  abuse of  discretion.

See Coutin  v. Young  &amp; Rubicam Puerto  Rico, Inc.,  124 F.3d                                                              

331, 336  (1st Cir. 1997);  Lipsett v. Blanco, 975  F.2d 934,                                                         

936  (1st Cir. 1992)  (noting that "because  determination of

the extent of a reasonable  fee necessarily involves a series

of judgment calls,  an appellate court is far  more likely to

defer  to the trial court  in reviewing fee computations than

in many  other situations.").   Even  under this  deferential

standard, however,  we  conclude that  the  district  court's

attorney's fees orders must be vacated.

A.  Lack of Success                               

          The district court  reduced the fee award  by sixty

percent  for  "lack  of success"  because  Rodriguez  did not

prevail on all of her claims and she did not receive the full

amount  of damages  she  sought.   According to  the district

court,  the plaintiff "ultimately  succeeded on her  claim of

retaliation" and  while the "unsuccessful  claim, the  sexual

                             -24-                                          24

harassment  claim,  was  linked to  the  successful  claim of

retaliation,  this fact alone does not preclude any reduction

based on the failure to establish sexual harassment."

          The district court did not  explain how it had come

to  the  conclusion  that the  jury  had  decided Rodriguez's

claims  in   this  way.     When  a  fee  award   is  reduced

substantially, a more detailed explanation is in  order.  See                                                                         

Brewster v. Dukakis,  3 F.3d 488, 493 (1st Cir.  1993) ("As a                               

general rule, a  fee-awarding court that makes  a substantial

reduction  in either documented  time or  authenticated rates

should  offer reasonably explicit findings, for the court, in

such circumstances, 'has  a burden to spell out  the whys and

wherefores.'") (quoting  United States v.  Metropolitan Dist.                                                                         

Comm'n, 847 F.2d 12, 18 (1st Cir. 1988)).   As our discussion                  

in  part III.A above demonstrates,  the jury could have found

that  Rodriguez's  sex harassment  claims against  Chavez and

Occidental  succeeded, on  either a  quid pro quo  or hostile

environment theory.  

          The district court  may have made the  same mistake

that  the defendants  have  made  in  arguing  that,  because

Miranda was not  found liable, no "sex  harassment" occurred.

As  noted, this  conclusion  is not  mandated  by the  jury's

general verdict.   Neither did Rodriguez's sexual  harassment

claims  fail when  the district  court  dismissed her  claims

under  Title VII against  Chavez, as she  continued to pursue

                             -25-                                          25

sex  discrimination claims under Puerto Rico law.  Indeed, it

appears Rodriguez has "prevailed up and down the line" on her

claims  against Chavez  and  Occidental,  in  which  case  "a

claims-based,  results-obtained   fee  reduction   is  wholly

inappropriate."  Coutin, 124 F.3d at 340.                                   

          The  district  court's  reduction  of the  lodestar

figure  by  sixty  percent  of  the  total   because  of  the

plaintiff's "lack of success"  was error.  Three measures  of

"success" pertain to civil rights lawsuits  such as this one:

"plaintiff's success  claim  by  claim,  .  .  .  the  relief

actually achieved, . . . [and] the societal importance of the

right which has  been vindicated."  Coutin, 124  F.3d at 338.                                                      

The plaintiff  was clearly  successful under  the latter  two

definitions.  

          Rodriguez  received  a substantial  monetary  award

constituting full compensation  for her injuries, as  well as

punitive damages.  The jury awarded Rodriguez all three types

of  monetary compensation provided  for in the  verdict form:

compensation  for back pay and/or front pay and other related

job benefits;  punitive damages; and compensatory damages for

her emotional and/or mental suffering.

          Congress  has encouraged  private suits  to counter

sex  discrimination through the  award of attorney's  fees to

successful  litigants.  See City  of Riverside v. Rivera, 477                                                                    

U.S. 561, 574-75 (1986) (plurality opinion); Coutin, 124 F.3d                                                               

                             -26-                                          26

at  337.  In  a civil rights  lawsuit, "[t]he result  is what

matters," Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), and                                          

in  this case plaintiff  apparently vindicated her  Title VII

claim and  received substantial damages.   See also  Aubin v.                                                                      

Fudala, 782  F.2d 287, 291  (1st Cir.  1986) ("[A]  plaintiff                  

should receive  significant fees  when he  has won a  partial                                                                         

victory on a civil rights claim while receiving substantially

the relief he there sought .  . . .") (emphasis in original).

Both the plaintiff's employer company and her boss were found

liable for the harms she suffered.  

          We  do   not  view  plaintiff's   claims  regarding

Miranda's  unwanted  sexual advances  as  "unrelated" to  the

claims upon  which she  prevailed such  that attorney's  fees

should  not  be  awarded  for  pursuing  these  claims.   See                                                                         

Hensley, 461 U.S.  at 434-35.  Indeed, the close relationship                   

between Occidental and PREPA, and between Chavez and Miranda,

was a foundational element  of her claims against Chavez  and

Occidental, and would  have needed  to be  developed even  if

plaintiff had not  sued Miranda or PREPA.  It  was this close

relationship  among   the  defendants   that  made   credible

plaintiff's contentions that her boss asked her to respond to

Miranda's  sexual advances  because  Miranda  and PREPA  were

valued customers,  and that he  fired her  when she  refused.

See id. at 440 ("Where  a lawsuit consists of related claims,                   

a  plaintiff who has  won substantial relief  should not have

                             -27-                                          27

his  attorney's fee reduced simply because the district court

did  not adopt each contention raised."); Scarfo v. Cabletron                                                                         

Sys., Inc., 54 F.3d 931, 962-66 (1st Cir. 1995).  Rodriguez's                      

unsuccessful claims were based both on a common core of facts

and on related legal theories.  See Hensley, 461 U.S. at 435.                                                       

          While it is  true that plaintiff's fee  request was

more  than twice the  damages awarded, the  Supreme Court has

held that the  size of the verdict does not  bar the recovery

of large attorney's fees awards.   See City of Riverside, 477                                                                    

U.S. at 574-75; see also Coutin, 124 F.3d at 338 (discrepancy                                           

between award requested and received does not "amount to more

than  one element  in the constellation  of factors  that the

court  considers when  determining  the  quality  of  results

obtained"); Foley  v. City  of Lowell, 948  F.2d 10,  19 (1st                                                 

Cir.  1991).   Thus,  because  the district  court  failed to

articulate its reasons for finding "lack of  success," and no

sound reasons are apparent in  the record, we must vacate its

order and remand for reconsideration.

B.  Other Fee Reductions                                    

          On remand, the district  court should also  revisit

the reductions  for duplicative  efforts and  paralegal work.

Of course,  ordinarily we  defer to  the court's  judgment on

these  matters,  because staffing  issues  are  usually "best

resolved  by the trial  court's application of  its intimate,

first-hand  knowledge  of  a  particular  case's  nuances and

                             -28-                                          28

idiosyncracies."  Lipsett, 975 F.2d at 939.  In setting fees,                                     

the  district court has  "broad discretion to  determine 'how

much was done, who did it, and how effectively the result was

accomplished.'"   Id. (quoting  Wagenmann v. Adams,  829 F.2d                                                              

196, 224  (1st Cir.  1987)).   In the  "gray areas,"  such as

deciding  whether a  given task  is properly  entrusted  to a

paralegal,  "the   district  court's  judgment   carries  the

greatest weight."   Id. at 940.  Clerical tasks  ought not to                                   

be billed at lawyer's rates,  even if a lawyer performs them.

See id.                    

          Time spent  by two  attorneys on  the same  general

task   is  not,  however,   per  se  duplicative.     Careful                                               

preparation often  requires collaboration and  rehearsal, and

the court  should not  reward defendants  for their  vehement

"Stalingrad  defense," a tactic they have continued to employ

on  appeal.   Id.  at  939.    Indeed, because  a  litigant's                             

staffing  needs  and  preparation time  will  often  "vary in

direct  proportion  to  the  ferocity  of  her   adversaries'

handling of  the  case, this  factor  weighs heavily  in  the

balance."  Id.   In this  case, the record  reveals that  the                          

defense was  indeed extreme.   As we  find that  the district

court's   unexplained   reduction   for   lack   of   success

independently requires a remand, we consider the entire issue

open  for reconsideration  and need  not  decide whether  the

                             -29-                                          29

other  alleged errors  in calculating  attorney's fees  would

alone prompt reversal.

                       VI.  Conclusion

          To conclude, we find any residuum of claimed errors

to be without merit and unworthy of extended discussion.  The

jury verdict  is affirmed.   The award of attorney's  fees is                                     

vacated,  and we  remand this  case for recalculation  of the                   

attorney's fees award in accordance with this opinion.  Costs

are awarded to Rodriguez.

                             -30-                                          30
