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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2093 <br> <br>                      RAFAEL RAMOS, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                   DAVIS & GECK, INC., ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>No. 97-2094 <br> <br>                      RAFAEL RAMOS, ET AL., <br> <br>                      Plaintiffs, Appellees <br> <br>                                v. <br> <br>                    DAVIS & GECK, INC., ET AL. <br> <br>                     Defendants, Appellants. <br> <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Hctor M. Laffitte, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Lynch, Circuit Judge, <br>                   Cyr, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br> <br> <br>  Jos Luis Ubarri with whom Herbert W. Brown, III and <br>David W. Romn and Brown & Ubarri were on brief for plaintiff, <br>appellant Rafael Ramos. <br>  Pedro J. Manzano-Yates with whom Fiddler Gonzlez & <br>Rodrguez were on brief for defendant, appellee Davis & Geck, <br>Inc. <br> <br> <br> <br> <br> <br>February 18, 1999 <br> <br> <br> <br> <br> <br> <br>

  LIPEZ, Circuit Judge.  Defendant-appellant Davis & Geck, <br>Inc. appeals from a jury verdict finding that Davis & Geck <br>constructively discharged Rafael Ramos in violation of Puerto <br>Rico's employment discrimination statute (Law 100), P.R. Laws Ann.  <br>tit. 29,  146 et seq.  Ramos cross appeals, alleging error in the <br>district court's (1) refusal to award front pay, (2) calculation of <br>attorney's fees, and (3) denial of pre-judgment interest.  We <br>affirm. <br>                               I. <br>  The jury could have found the following facts.  SeeRodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 851 (1st Cir. <br>1998) ("We review the facts in the light most favorable to the <br>jury's verdict.").  Ramos began working in the accounting <br>department of Davis & Geck's manufacturing plant in Manati, Puerto <br>Rico in 1974.  In 1980, he was promoted to budget supervisor of the <br>accounting section.  In June 1991, Davis & Geck hired Francisco <br>Rosaly as its cost accounting manager; Rosaly became Ramos' <br>supervisor.  Rosaly made several comments to Ramos and others about <br>wanting "to get rid of old things" and "to bring in new blood" and <br>that he, Rosaly, wanted "to change everything that was old." <br>  On March 16, 1992, Ramos (53 years old at the time) was <br>informed by Rosaly and Hazel Barry, the plant's controller, that he <br>was being replaced as budget supervisor by Maritza Montalvo, a <br>younger woman whom Ramos had recently trained.  Ramos' pay and <br>benefits were  not changed.  Ramos was told that the decision had <br>been made and he could "take it or leave it." <br>  After the meeting with Rosaly and Barry, Ramos began a <br>previously scheduled, mandatory vacation period. (Ramos, along with <br>other employees, had been ordered to take vacation because he had <br>accrued substantial leave without taking a vacation.)  When certain <br>reports were requested of Ramos, however, he returned to work <br>during his vacation to prepare the reports.  One evening between <br>9:30 and 10:00 p.m., Davis & Geck's computer system "went down."  <br>When Ramos explained that he could therefore not finish the report, <br>Rosaly stood behind Ramos and told him to go home because he, <br>Ramos, was "a tired old man."   <br>  When Ramos returned from his vacation in April 1992, his <br>office assignment had been changed.  Montalvo was in Ramos' former <br>cubicle, and Ramos had been transferred to "the death cubicle," so <br>named because all employees who had been assigned to it left the <br>company.  In his new cubicle, Ramos found his personal belongings <br>in a box on the floor and an obsolete, non-working computer on his <br>desk. <br>  Rosaly immediately demanded certain reports from Ramos.  <br>Ramos claimed that he was unable to produce the reports as a result <br>of his inoperative computer.  Rosaly instructed Ramos to use <br>another computer, but Ramos said that all the computers were in <br>use. <br>  On April 21, 1992, Rosaly again demanded the reports.  <br>Ramos again told Rosaly that he had been unable to complete the <br>reports because his computer was still not working and no other <br>computer had been available.  Rosaly stood in the entrance to <br>Ramos' cubicle and threatened Ramos with an assault.  Shaken by <br>the confrontation, Ramos began to cry and went to the company <br>infirmary.  Ramos was excused from work by the company doctor; he <br>never returned to work. <br>     Ramos was diagnosed with depression.  In March 1994 the <br>Puerto Rico State Insurance Board found that he had been disabled <br>since April 21, 1992.  In December 1994, Ramos filed suit alleging <br>that Davis & Geck constructively discharged him because of his age <br>in violation of the Age Discrimination in Employment Act, 29 U.S.C. <br> 621 et seq. (the ADEA), and Puerto Rico's Law 100, P.R. Laws Ann. <br>tit. 29,  146 et seq.  After a five day jury trial in January <br>1997, the jury found for Davis & Geck on the ADEA claim and for <br>Ramos on the Puerto Rico Law 100 claim.  It awarded Ramos $150,000 <br>in damages, doubled to $300,000 pursuant to Puerto Rico law.  SeeP.R. Laws Ann. tit. 29,  146 (requiring employers found to have <br>violated Law 100 to pay the aggrieved employee "a sum equal to <br>twice the damages sustained"). <br>     Both parties filed post-verdict motions.  Davis & Geck <br>sought a judgment as a matter of law or a new trial, both of which <br>were denied.  Ramos sought front pay, attorney's fees, and pre- <br>judgment interest.  Although the court denied front pay and pre- <br>judgment interest, it awarded attorney's fees of $37,500 -- <br>significantly less than the $303,360 requested by plaintiff.  These <br>appeals followed. <br>                              II. <br>     A. Davis & Geck's Appeal <br>     Davis & Geck argues that its post-verdict motions were <br>improperly denied because Ramos failed to adduce sufficient <br>evidence to support a jury finding that he had been constructively <br>discharged. It further argues that the district court erred by <br>failing to require proof that Davis & Geck intended to force Ramos <br>to quit as an element of a claim of constructive discharge.  <br>Neither argument is availing.   <br>     1. Sufficient Evidence of Constructive Discharge <br>     A judgment as a matter of law is only warranted if "no <br>reasonable jury could have returned a verdict adverse to the moving <br>party."  Havinga v. Crowley Towing & Transp. Co., 24 F.3d 1480, <br>1483 (1st Cir. 1994).  In reviewing the denial of a request for <br>such a judgment, we "may not assess the credibility of witnesses, <br>evaluate the weight of the evidence or resolve conflicts in <br>testimony, but rather must view all facts and reasonable inferences <br>therefrom in the light most favorable to the non-movant."  Davet v. <br>Maccarone, 973 F.2d 22, 28 (1st Cir. 1992).  Our review of the <br>denial of a request for a new trial is "similarly circumscribed, <br>but counsels ample deference to the district court's exercise of <br>discretion."  Rolon-Alvarado v. Municipality of San Juan, 1 F.3d <br>74, 77 (1st Cir. 1993).  A new trial should only be ordered "if <br>[the court] believes that the outcome is against the clear weight <br>of the evidence such that upholding the verdict will result in a <br>miscarriage of justice."  Velazquez v. Figueroa-Gomez, 996 F.2d <br>425, 427 (1st Cir. 1993).   <br>     The court instructed the jury to apply an objective <br>standard of constructive discharge, requiring a determination <br>whether work conditions were "so difficult or unpleasant that a <br>reasonable person in the employee's shoes would have felt compelled <br>to resign."  Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 <br>(1st Cir. 1986) (quoting Alicea-Rosado v. Garcia-Santiago, 562 F.2d <br>114, 119 (1st Cir. 1977)).  While "the focus is upon the <br>'reasonable state of mind of the putative discriminatee' [in this <br>case Ramos] . . . the law does not permit an employee's subjective <br>perceptions to govern a claim of constructive discharge."  Id.(internal citations omitted).  The question, then, is whether Ramos <br>presented sufficient evidence to allow the jury to credit his claim <br>that a reasonable employee would have felt compelled to resign <br>under the circumstances. <br>     It is true that Ramos' demotion did not entail changes in <br>salary and benefits.  However, "the fact that salary and benefits <br>have not been decreased has never been held to be a conclusive <br>factor; courts applying the objective standard in ADEA constructive <br>dismissal cases consider a variety of often case-specific factors."Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. <br>1996).  Davis & Geck "complains that a mere change in cubicle <br>location, change in work title, change in duties, a requirement <br>that the employee work on his vacation time, and an extremely harsh <br>confrontation with a supervisor can not accumulate into a <br>constructive discharge."  Ramos, 968 F. Supp. at 779.  However, <br>this catalogue is incomplete and the totality of the facts may not <br>seem "mere" to a reasonable employee, or to a reasonable jury.  We <br>agree with the district court that the jury was entitled to find <br>that Davis & Geck constructively discharged Ramos. <br>     2. Proof of the Employer's Intent <br>     Davis & Geck argues that the imposition of objectively <br>oppressive work conditions should not suffice to establish a <br>constructive discharge without proof that the employer created the <br>intolerable work conditions with the specific intent of forcing the <br>employee to resign.  Such a requirement of proof of employer intent <br>would plainly be at odds with our settled precedent: "We have long <br>applied an 'objective standard' in determining whether an <br>employer's actions have forced an employee to resign."  Serrano- <br>Cruz, 109 F.3d at 26 (citing Calhoun, 798 F.2d at 561).  The test <br>is whether "a reasonable person in the employee's shoes would have <br>felt compelled to resign"  Calhoun, 798 F.2d at 561 (emphasis <br>added), irrespective of employer intent. <br>     Davis & Geck cites language in our Calhoun opinion in <br>arguing for consideration of the employer's intent.  In Calhoun, we <br>used an extended quote from a Fourth Circuit opinion which reads in <br>part: "An employee is protected from a calculated effort to <br>pressure him [or her] into resignation through the imposition of <br>unreasonably harsh conditions, in excess of those faced by his [or <br>her] coworkers."  Id. (emphasis added) (quoting Bristow v. Daily <br>Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).  Although this <br>reference to "a calculated effort" may suggest that proof of the <br>employer's intent is an element of the constructive discharge, we <br>articulated the constructive discharge standard in Calhoun as an <br>objective one and we have not required proof of employer intent in <br>subsequent cases.  See id.; Serrano-Cruz, 109 F.3d at 26; Vega v. <br>Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir. 1993). <br>     Indeed, such a requirement would be inconsistent with the <br>purpose of the constructive discharge doctrine to protect employees <br>from conditions so unreasonably harsh that a reasonable person <br>would feel compelled to leave the job.  The doctrine reflects the <br>sensible judgment that employers charged with employment <br>discrimination ought to be accountable for creating working <br>conditions that are so intolerable to a reasonable employee as to <br>compel that person to resign.  One can imagine an employer who <br>subjectively desires an employee to remain, so long as the employee <br>is willing to accept unreasonable, oppressive conditions.  Such an <br>employer commits a constructive discharge.  In this case, the jury <br>was free to find that a constructive discharge had occurred without <br>proof of Davis & Geck's intent to cause such a discharge.   <br>     B. Ramos' Cross Appeal  <br>     1. Front Pay <br>     The district court declined to award Ramos any front pay,  <br>which compensates the plaintiff for the loss of future earnings.  <br>The Puerto Rico Supreme Court has held that "when reinstatement of <br>the employee cannot be ordered . . . [f]ront pay up to retirement <br>is an indispensable part of the just compensation afforded to the <br>employee discriminated against by reason of age."  Odriozola v. <br>Cosmetic Dist. Corp., 116 D.P.R. 485, 16 Offic. Trans. 595, 624 <br>(1985).  In denying front pay damages, the district court held that <br>the jury verdict made Ramos whole and, in the alternative, that <br>Ramos had not proven that the impossibility of reinstatement was <br>caused by the discrimination of Davis & Geck.  Because front pay is <br>considered an equitable remedy, "the decision to award or withhold <br>front pay is, at the outset, within the equitable discretion of the <br>trial court."  Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir. <br>1995).  We therefore review the front pay determination for an <br>abuse of discretion. <br>     To collect front pay in the absence of a request for <br>reinstatement, Ramos had to prove that he could not return to work <br>at Davis & Geck because of the discriminatory acts of the <br>defendant.  See Odriozola, 16 P.R. Offic. Trans. at 619 (allowing <br>front pay where the plaintiff "could not work because he was ill, <br>and said illness was due to [the employer's] discriminatory action <br>against him"); see also Lopez-Vicil v. ITT Intermedia, Inc. ("Lopez <br>I"), 97 J.T.S. 42 at 833, 838 (1997) (concluding that "the <br>preferred remedy in cases involving discriminatory dismissals is <br>reinstatement, provided that this is possible") (citing Selgas v. <br>American Airlines, Inc., 104 F.3d 9 (1st Cir. 1997)).  The district <br>court found that "Ramos is capable of returning to his former <br>position but the stresses of his personal life, not the Defendant's <br>prior discriminatory conduct, pose the greatest obstacle for him."  <br>Ramos, 968 F. Supp. at 773.  After a careful examination of the <br>record, including a review of the testimony of two experts who <br>testified contradictorily about Ramos' mental health history, we <br>cannot say that this finding is clearly erroneous: "[w]here there <br>are two permissible views of the evidence, the factfinder's choice <br>between them cannot be clearly erroneous."  Anderson v. Cryovac, <br>Inc., 862 F.2d 910, 916 (1st Cir. 1988) (citing Anderson v. City of <br>Bessemer City, 470 U.S. 564, 573-74 (1985)).  Consequently, we will <br>not disturb the district court's denial of front pay.  <br>     2. Attorney's Fees <br>     The district court initially awarded Ramos $37,695 in <br>attorney's fees.  Just six days after that ruling, the Supreme <br>Court of Puerto Rico issued a decision establishing that <br>"ordinarily, the amount that the attorney of a prevailing worker <br>may receive under an Act No. 100 claim shall be twenty-five percent <br>(25%) of the base compensation awarded to the worker."  See Lopez- <br>Vicil v. ITT Intermedia, Inc. ("Lopez II"), 97 J.T.S. 104 at 1250, <br>1254 (1997).  The district court then revised the attorney's fees <br>award to $37,500 in keeping with the Lopez II decision, finding <br>that this fee award was adequate to fairly compensate plaintiff's <br>counsel.  We find no abuse of discretion in this determination.  <br>See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 336 <br>(1st Cir. 1997) ("We review fee awards deferentially, according <br>substantial respect to the trial court's informed discretion."); <br>Lopez II, 97 J.T.S 104 at 1254 ("Appellate courts, in turn, shall <br>not disturb the trial court's fee award except in cases involving <br>abuse of discretion."). <br>     Ramos offers a second, more novel challenge to the <br>attorney's fees award.  Despite the jury's verdict to the contrary, <br>Ramos claims to be a prevailing party under the ADEA, entitled to <br>a consideration of his fee request pursuant to ADEA jurisprudence.  <br>This is so, he says, because the jury's finding that he had been <br>the victim of employment discrimination on the basis of age <br>pursuant to Law 100 is in effect a victory under the ADEA as well. <br>     Ramos' proposition is clearly incorrect.  As the district <br>court noted, the significant differences in the burden of proof <br>requirements under the ADEA and Law 100 explain the jury's award <br>under Law 100 and its denial under the ADEA.  Under the ADEA, "the <br>plaintiff bears the ultimate burden of proving that 'he would not <br>have been fired but for his age.'"  Serrano-Cruz, 109 F.3d at 25 <br>(quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st <br>Cir. 1988)).  In employment discrimination claims proceeding under <br>the McDonnell Douglas framework, the establishment of plaintiff's <br>prima facie case shifts only a burden of production to the <br>defendant (to articulate a legitimate nondiscriminatory reason for <br>the adverse employment action); once the employer meets that burden <br>of production "the presumption of discrimination vanishes and the <br>burden shifts back to the plaintiff" to show that the employer's <br>stated reason is in fact a pretext, and that the real reason was <br>discriminatory animus.  Greenberg v. Union Camp Corp., 48 F.3d 22, <br>26 (1st Cir. 1995) (discussing McDonnell Douglas Corp. v. Green, <br>411 U.S. 792, 802-05 (1973)); see also Wildman v. Lerner Stores <br>Corp., 771 F.2d 605, 609 (1st Cir. 1985) ("Under the ADEA, the <br>burden of proof is at all times on the plaintiff."). <br>     Under Law 100, however, once the employee triggers the <br>act's protections by showing that his discharge, constructive or <br>otherwise, was not justified, the employee enjoys a presumption <br>that he or she has been the victim of discrimination and the <br>burdens of both production and persuasion shift to the employer.  <br>See Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 <br>F.3d 17, 27 (1st Cir. 1998) (citing Ibanez-Benitez v. Molinos de <br>Puerto Rico, Inc., 114 P.R. Dec. 42, 52 (1983) (concluding that Law <br>100 "is more favorable to plaintiff than its federal <br>counterpart")); see also Sanchez v. Puerto Rico Oil Co., 37 F.3d <br>712, 723 (1st Cir. 1994) (comparing burdens of proof under the ADEA <br>and Puerto Rico Law 100 and noting that "under Law 100, in contrast <br>[to the ADEA], the burden of proof shifts to the defendant once the <br>plaintiff has established a prima facie case").  "Thus, in order to <br>rebut the Law 100 presumption, the employer must prove, by a <br>preponderance of the evidence, that the challenged action was not <br>motivated by discriminatory age animus."  Alvarez-Fonseca, 152 F.3d <br>at 27-28.  These different burden of proof allocations explain the <br>divergent liability determinations on Ramos' ADEA and Law 100 <br>claims.  Ramos is not a prevailing party under the ADEA and has no <br>claim to attorney's fees under that statute. <br>     3. Pre-Judgment Interest <br>     Plaintiff also assigns error to the district court's <br>refusal to grant pre-judgment interest.  Pursuant to Puerto Rico <br>Rule of Civil Procedure 44.3(b), the plaintiff is entitled to pre- <br>judgment interest if the defendant acted in an obstinate manner <br>during the litigation.  See Dopp v. Pritzker, 38 F.3d 1239, 1252 <br>(1st Cir. 1994) (noting that, while Rule 44.3(b) speaks in terms of <br>parties who act "rashly," "the case law makes it transpicuously <br>clear that the legally operative conduct under [Rule 44.3(b)] is <br>that of obstinacy") (citing De Leon Lopez v. Corporacion Insular de <br>Seguros, 931 F.2d 116, 126-27 (1st Cir. 1991)).  The district court <br>found that Davis & Geck had not been obstinate and declined to <br>award pre-judgment interest.  Such a finding is reviewed for abuse <br>of discretion.  See Id. at 1253.  At the close of the trial, the <br>district court commended the attorneys on both sides for their <br>"competence and diligence."  Furthermore, in refusing Ramos' <br>request for pre-judgment interest, the court noted that the <br>defendant's success in defeating several of the claims justified a <br>robust defense.  After a review of the record, and in deference to <br>"the vastly different relationship between the district court and <br>the events of an actual trial, on the one hand, and the court of <br>appeals and those same events, on the other hand," id., we affirm <br>the denial of pre-judgment interest. <br>     For the foregoing reasons, the judgment of the district <br>court is affirmed.  <br>                    </pre>

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