

October 28, 1994  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

No. 94-1171

                         JOSE L. SANCHEZ,

                       Plaintiff, Appellee,

                                v.

                     PUERTO RICO OIL COMPANY,

                      Defendant, Appellant.

                                             

                           ERRATA SHEET                                     ERRATA SHEET

     The  opinion of the court  issued on September  29, 1994, is
corrected as follows:

     1.    After first  sentence  of  footnote 3,  (p.5),  delete
remainder of footnote and replace with the following:

          Plaintiff  conceded  at trial,  however, that
          appellant's general manager, George Gonzalez,
          had  reprimanded  him  on approximately  four
          occasions in the  1988-1990 time frame.   The
          significance    of   these    reprimands   to
          plaintiff's overall  job performance involved
          a  fact  determination   within  the   jury's
          exclusive province.

     2.   On  p.7, delete  last sentence  of first  paragraph and
replace with the following:

          Appellant  disputed  plaintiff's  version  of
          this   conversation,   suggesting  that   any
          remarks  by Gonzalez were motivated solely by
          a concern for plaintiff's health and physical
          condition.

     3.   On p.15, delete  last two sentences  of first paragraph
and replace with the following:

          Last,  but  surely  not least,  after  having
          refused   to   reinstate  Sanchez,   Gonzalez
          questioned him  about his age and  made other
          age-related remarks that the  jury reasonably
          could  have  construed   as  evincing   bias.

          Indeed,  if  the  jury  credited  plaintiff's
          version of  this conversation    as it  had a
          right  to  do,  especially   since  Gonzalez,
          though available, was never called to testify
          at  trial     Gonzalez's statements  comprise
          potent evidence of age-based animus.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 94-1171

                         JOSE L. SANCHEZ,

                       Plaintiff, Appellee,

                                v.

                     PUERTO RICO OIL COMPANY,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

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

                                             

                              Before

             Selya, Boudin and Stahl, Circuit Judges.                                                              

                                             

     Enrique Velez-Rodriguez, with whom  Lespier &amp; Munoz-Noya was                                                                       
on brief, for appellant.
     Federico Lora Lopez for appellee.                                  

                                             

                        September 29, 1994

                                             

          SELYA,  Circuit  Judge.   This is  a  ghost ship  of an                    SELYA,  Circuit  Judge.                                          

appeal.   One hears  the creak of  the rigging, the  groan of the

timber, and the muted sound of voices through the fog   but there

is nothing solid to be grasped.  In  the end the appeal, like the

ghost  ship, vanishes into  the mist,  leaving things  exactly as

they were.  The tale follows.

I.  AN OVERVIEW          I.  AN OVERVIEW

          Plaintiff-appellee  Jose  L.  Sanchez  sued  defendant-

appellant  Puerto Rico  Oil Company  (Proico) asserting  that the

company constructively discharged him due to his advanced age.  A

jury agreed; it found that Proico had willfully violated both the

Age Discrimination in Employment Act, 29 U.S.C.    621 634 (1988)

(ADEA),  and  a   Puerto  Rico  statute   proscribing  employment

discrimination, P.R. Laws Ann.  tit. 29,   146 (Supp.  1989) (Law

100).   The jury awarded Sanchez $40,376.80 in backpay under ADEA

and  $150,000  for mental  and  moral suffering  under  Law 100.1

Proico moved  for judgment  notwithstanding the verdict,  Fed. R.

Civ. P. 50(b), or for  a new trial, Fed.  R. Civ. P. 59(a).   The

district court  reduced the damage awards to  $38,000 for backpay

and $37,500 for suffering, but  otherwise gave Proico cold gruel.

The  court then  doubled  the reduced  awards, bringing  Proico's

aggregate liability to $151,000.  This appeal ensued.

          Although  appellant aggressively advances  an armada of

                                                  

     1In both the  jury instructions  and the  verdict form,  the
district  court appropriately  precluded the  jury from  awarding
damages  for backpay under Law  100 in the  event that it awarded
such damages under the ADEA.

                                4

artful  arguments, only  five  are worthy  of extended  comment.2

These  include four evidence-oriented  propositions, namely, that

the evidence (1) failed to establish a prima  facie case, (2) did

not  warrant a finding of  liability on the  ADEA count, (3) fell

short of showing willfulness,  and (4) did not warrant  a finding

that plaintiff  sustained  non-economic  damages  in  the  amount

awarded under Law 100.  Appellant's final claim is that the lower

court erred in doubling the two awards.

          Because  these  importunings  do  not  withstand  close

perscrutation, we affirm the judgment below.

II.  THE ADEA CLAIM          II.  THE ADEA CLAIM

          Since  the   first  three  components   of  appellant's

asseverational array  challenge the  adequacy of the  evidence in

respect  to various aspects  of plaintiff's ADEA  claim, we treat

them in the ensemble.

                     A.  Standards of Review.                               A.  Standards of Review.                                                      

          The  standards  of review  that  appertain  to a  trial

court's denial of the usual post-trial motions in civil cases are

firmly  settled.  With respect  to a motion  for judgment n.o.v.,

now known  as judgment as a  matter of law, the  court of appeals

must examine  the evidence and  the inferences  reasonably to  be

extracted  therefrom   in  the  light  most   hospitable  to  the

                                                  

     2On  appeal,   Proico  offers  no   developed  argumentation
concerning any  alleged insufficiency  of the evidence  vis-a-vis
the  jury's finding of liability on the  Law 100 claim.  Thus, we
treat any such claim as abandoned.  See, e.g., Ryan v. Royal Ins.                                                                           
Co., 916 F.2d 731, 734 (1st Cir. 1990); United States v. Zannino,                                                                          
895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).                                                 

                                5

nonmovant, and may reverse  the denial of  such a motion only  if

reasonable persons could not have reached the conclusion that the

jury  embraced.  See  Wagenmann v. Adams, 829  F.2d 196, 200 (1st                                                  

Cir.  1987).  In performing  this tamisage, "we  may not consider

the credibility of witnesses,  resolve conflicts in testimony, or

evaluate the weight of the evidence."  Id.                                                    

          Appellate review of a district court's disposition of a

Rule  59(a) motion is  even more circumscribed;  a district court

may set aside a jury's verdict and  order a new trial only if the

verdict  is  against  the  demonstrable weight  of  the  credible

evidence or results  in a  blatant miscarriage of  justice.   See                                                                           

Coffran v. Hitchock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert.                                                                           

denied, 459 U.S.  1087 (1982).   And, moreover,  a trial  judge's                

refusal to disturb a jury verdict is further insulated because it

can be reversed solely  for abuse of discretion.   See Freeman v.                                                                        

Package Mach. Co., 865 F.2d 1331, 1334 (1st Cir. 1988); Milone v.                                                                        

Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988).                             

          Mindful  of the high  hurdles that obstruct appellant's

path, we evaluate the  evidence referable to the ADEA  count with

an  eye  toward  determining  whether it  can  support  only  one

outcome, or, if  not, whether it is  so one-sided that  the trial

court's failure to defenestrate  the verdict constituted an abuse

of  discretion.  If neither of these conditions obtain, we cannot

disturb the lower  court's disposition of appellant's  post-trial

motions.

                          B.  The Proof.                                    B.  The Proof.                                                 

                                6

          Plaintiff  worked for  appellant in  various capacities

for approximately two  decades.   During the first  18 years,  he

performed satisfactorily, spending  most of his time  maintaining

the company's  inventory system.   In 1988,  appellant reassigned

plaintiff,  then  67  years  old,  to  man  a  sales  counter  at

appellant's place  of business in  San Juan.   Plaintiff concedes

that  this reclassification  reflected  a  legitimate  change  in

business conditions.

          Though the evidence is largely disputed from this point

forward, plaintiff contends, and  the jury could warrantably have

found, that  he continued to perform his duties ably.3  In May of

1990,  however, managerial  changes  occurred.   Manuel  Catinchi

became the company's executive vice-president.  Plaintiff asserts

that  Catinchi   soon  embarked  on  a   course  of  age-animated

harassment.   The  pot  began  to  boil  when  Catinchi  summoned

plaintiff  on July  5  and  August  1,  and  criticized  his  job

performance.  A jury reasonably could have concluded from all the

evidence  that Catinchi  had an  ulterior motive  in calling  the

meetings; contrary to Catinchi's testimony that the sessions were

sparked by customer complaints that had been reported to Soto and

relayed  by him to Catinchi, Soto denied having received any such
                                                  

     3At trial, this boast was  substantiated by the testimony of
both plaintiff's immediate supervisor, Mr. Soto, and a co-worker,
Nydia  Candelaria.   Plaintiff conceded  at trial,  however, that
appellant's general manager, George Gonzalez, had reprimanded him
on approximately four occasions in the 1988-1990 time frame.  The
significance  of  these  reprimands  to  plaintiff's overall  job
performance  involved  a  fact determination  within  the  jury's
exclusive province.

                                7

complaints.   In fact, Soto  testified, he had  never spoken with

Catinchi concerning plaintiff's job performance.  Soto added that

plaintiff's work was exemplary.

          On  August  23,  1990,  Catinchi  wrote   to  plaintiff

informing him that  he was being "promoted" to head  a new office

in Aguadilla, effective September 1.  Appellant asserts that this

promotion demonstrates its lack of animosity toward Sanchez.  But

a  jury feasibly could have  viewed the employment  decision in a

more  sinister light;  after  all, Aguadilla  is  located in  the

westernmost  part  of  Puerto   Rico,  a  three-hour  drive  from

plaintiff's home; and at any rate, management knew that plaintiff

did not  own a car and  that his wife suffered  from a disability

that  made it  unwise  (if  not  impossible)  for  him  to  spend

additional  time away from  home.  The  company did  not offer to

relocate  plaintiff or  to  furnish him  transportation, and  the

modest pay increase that  was to accompany the promotion  was not

enough to defray the costs associated with commuting.4

          The  record  is  tenebrous  as  to   whether  appellant

presented the  promotion to plaintiff as  obligatory or optional.

For present purposes, we do not think it matters, for,  on August

29,  plaintiff wrote  to  Catinchi declining  reassignment.   His

letter stated that he  had "reached the conclusion that  all this

has a name  and a purpose:  harassment  and age discrimination to

force me  to resign .  . . ."   The company  neither responded to
                                                  

     4The evidence  also established that appellant  did not have
an office  in Aguadilla;  its salesmen in  the region  habitually
congregated at a local Burger King.

                                8

this  missive  nor opened  an  office in  Aguadilla.   Meanwhile,

plaintiff continued on the job.

          On September 18, 1990,  plaintiff toppled from a ladder

while at work.  He reported to the State Insurance  Fund (SIF) to

receive treatment for the injuries sustained.   He refrained from

working for several weeks on doctor's orders.  On November 9, the

SIF authorized plaintiff to resume employment.   When he reported

for  duty,  however,  Gonzalez  refused  to  reinstate  him.    A

conversation ensued,  during which  Gonzalez asked  plaintiff his

age and then  counseled him to collect his pension rather than to

"screw"  himself  by  returning  to  work.    Appellant  disputed

plaintiff's  version of  this  conversation, suggesting  that any

remarks by  Gonzalez  were  motivated solely  by  a  concern  for

plaintiff's health and physical condition.

          Having  been  shut  out  of  the  workplace,  plaintiff

repaired to the SIF.  A functionary there told him that he needed

a letter from his employer  as to why he had not  been allowed to

reclaim his job.  Plaintiff went to appellant's place of business

on Monday,  November 12, and again requested  reinstatement.  His

entreaty fell on  deaf ears.   He then asked  for an  explanatory

letter, and  was told to  return some other  time since it  was a

firm holiday and only a skeleton staff was on hand.

          Plaintiff  reappeared later  the same  week, bearing  a

letter he himself had composed.  The letter stated that appellant

had "ordered" him to return to the  SIF.  When he sought to  have

Gonzalez sign the letter, Gonzalez's secretary told him to retype

                                9

it, substituting "suggested" for  "ordered."  Plaintiff complied,

but Gonzalez still refused to sign the document.

          The barring  of the company's  doors on November  9 and

the events  of the following  week proved to  be the straws  that

broke the dromedary's back.  When Gonzalez withheld the letter to

the SIF, plaintiff left  Proico's premises, went directly to  the

offices  of  the  Puerto  Rico  Labor Department,  and  filed  an

administrative complaint charging age discrimination.  Two men in

their twenties assumed his duties on a temporary basis.

          Plaintiff never returned to Proico's employ.  At first,

he was unable to obtain  unemployment benefits (apparently due to

the  lack of the required letter)  and soon declared bankruptcy.5

He  returned to the SIF  for periodic medical  treatment until he

received  a  full discharge  on March  7,  1991.6   Several weeks

later  the company  officially terminated  plaintiff's employment

and  hired  a  36-year-old  man  as  his  permanent  replacement.

Thereafter, plaintiff  filed suit in federal  district court with

the results previously described.

                       C.  ADEA Liability.                                 C.  ADEA Liability.                                                   

          In a  trio of  related  arguments, appellant  maintains

                                                  

     5Plaintiff ultimately secured unemployment benefits, but the
record is silent as to the date.

     6With certain limitations  (not relevant here),  Puerto Rico
law requires  an employer to reserve an injured worker's position
for  a minimum of 15 days following the employee's full discharge
from the SIF.  See P.R. Laws Ann. tit. 11,   7 (1983).  Believing                            
that he  had been constructively discharged  in November, Sanchez
made no effort to  reclaim his job in March of  1991.  The jury's
verdict had the effect of validating this course of conduct.

                                10

that  plaintiff failed  to establish  a prima  facie case  of age

discrimination, and that the evidence supports neither the jury's

finding that appellant violated the ADEA nor its determination of

willfulness.  We deal sequentially with these assertions.

          1.  The  Prima Facie  Case.  The  claim that  underlies                    1.  The  Prima Facie  Case.                                              

appellant's first line of attack   that the case  should not have

reached the jury  because plaintiff failed  to establish a  prima

facie  case   betrays  confusion concerning the  operation of the

burden-shifting  framework   that  applies  in   many  employment

discrimination cases (including this one).

          The  ADEA   makes  it  unlawful  for   an  employer  to

"discharge any  individual or otherwise  discriminate . .  . with

respect  to . . . terms, conditions, or privileges of employment,

because of such individual's age."   29 U.S.C.   623(a).   Due to

the difficulties of unmasking  intentional discrimination, a task

that has been  described as "elusive,"  Texas Dep't of  Community                                                                           

Affairs v. Burdine,  450 U.S.  248, 255 n.8  (1981), courts  have                            

crafted a  burden-shifting framework  to be  used in  cases where

direct evidence  of intentional  discrimination is lacking.   See                                                                           

id. at 255-56;  see also  McDonnell Douglas Corp.  v. Green,  411                                                                     

U.S.  792, 802-05  (1973).   Under  this  framework, the  initial

burden is on the  plaintiff, who must make a prima  facie showing

of discrimination.

          The prima facie  case requirement  embodies a  concept,

not a mechanical exercise.  Though  its contours generally follow

the McDonnell Douglas model,  a prima facie case must  be custom-                               

                                11

tailored   to  fit   both  the   particular  animus   (e.g.,  age                                                                     

discrimination, sex discrimination, race discrimination)  and the

particular type of employment decision involved (e.g., failure to                                                               

hire, failure to promote, failure to retain).  The case at bar is

an  ADEA case charging  wrongful termination  of employment.   In

such  circumstances, the  plaintiff can  establish a  prima facie

case  by  adducing  evidence  that (i)  he  is  a  member of  the

protected class, i.e., over 40 years old, (ii) the quality of his                               

work  met  the  employer's  legitimate  expectations,  (iii)  the

employer nevertheless cashiered him, and (iv) the employer sought

a    replacement    with    roughly    equivalent    occupational

qualifications, thereby  demonstrating a continuing  need for the

same services and skills.7   See Vega v. Kodak Caribbean, Ltd., 3                                                                        

F.3d 476, 479 (1st Cir. 1993); Mesnick v.  General Elec. Co., 950                                                                      

F.2d  816, 823  (1st Cir.  1991), cert. denied,  112 S.  Ct. 2965                                                        

(1992); Hebert v.  Mohawk Rubber  Co., 872 F.2d  1104, 1110  (1st                                               

Cir. 1989).

          The  burden of making out a prima facie case belongs to

                                                  

     7Appellant insists that plaintiff also  had to show that his
employer ultimately hired a  replacement who was not a  member of
the protected  class.   The case  law in this  circuit is  to the
contrary.   See, e.g.,  Cumpiano v. Banco  Santander Puerto Rico,                                                                          
902 F.2d 148,  155 (1st Cir. 1990)  (stating that "we have  never
held that the  . . . prima facie discharge  case can be fulfilled
only  if the complainant shows  that she was  replaced by someone
outside the  protected group");  Freeman,  865 F.2d  at 1335  n.2                                                  
(explaining that "replacement by a younger person . . . is not an
element  of the plaintiff's prima  facie case in  an ADEA suit");
cf. St. Mary's  Honor Ctr. v.  Hicks, 113 S.  Ct. 2742, 2758  n.1                                              
(1993) (Souter, J., dissenting)  (citing Cumpiano and noting that                                                           
the  Supreme Court has not addressed the question).  At any rate,
plaintiff made the showing here.

                                12

the  plaintiff, but it  is "not onerous."   Burdine, 450  U.S. at                                                             

253.  All that is needed is the production of admissible evidence

which,  if uncontradicted,  would justify  a legal  conclusion of

discrimination.  See St.  Mary's Honor Ctr. v. Hicks,  113 S. Ct.                                                              

2742, 2747 (1993).  However, it is important to remember that the

contours  of  a  prima facie  case  are  flexible  and situation-

specific.   Thus, in applying this rubric to the instant case, we

must take into account a special wrinkle:  here, plaintiff claims

a constructive discharge as opposed to an outright dismissal.  We

have used the term  "constructive discharge" to describe employer

action that makes  "[work] so arduous or  unappealing, or working

conditions so  intolerable, that  a reasonable person  would feel

compelled to forsake  his job  rather than to  submit to  looming

indignities."   Vega, 3  F.3d at 480;  see also  Alicea Rosado v.                                                                        

Garcia  Santiago,  562  F.2d 114,  119-20  (1st  Cir.  1977).   A                          

constructive   discharge  also   may  occur   when  an   employer

effectively prevents an  employee from performing his job.   See,                                                                          

e.g., Aviles-Martinez v. Monroig,  963 F.2d 2, 6 (1st  Cir. 1992)                                          

(finding  constructive discharge  when  an employer,  inter alia,                                                                          

"removed all  of [plaintiff's] files  and then chastised  him for

not doing his work");  Parrett v. City of Connersville,  737 F.2d                                                                

690, 694  (7th Cir.  1984) (finding constructive  discharge where

supervisor removed all work  and responsibilities from employee),

cert. denied, 469 U.S. 1145 (1985).                      

          Silhouetted against this backdrop, appellant's argument

seems misshapen in  two respects.  First and  foremost, plaintiff

                                13

succeeded  in limning  a prima facie  case:   he was  in his late

sixties;  his immediate  supervisor and  his sole  co-worker both

praised his  job performance;  SIF's physicians believed  that he

was  medically fit  to  resume  his  duties  by  November  9;  he

attempted to return to  work on that date, yet  appellant refused

to reinstate him and thereafter spurned at least one other direct

request for reinstatement; and  appellant concedes that it  had a

continuing  need  for the  position.    This  gusher of  evidence

possessed more  than enough  force to  exceed the  relatively low

threshold on which the prima facie case requirement rests.

          Second, the question posed by appellant's  challenge is

fundamentally  irrelevant.  Once a prima facie ADEA case has been

established under the  McDonnell Douglas framework,  an inference                                                  

of  discrimination  arises.    See Mesnick,  950  F.2d  at 823-25                                                    

(elucidating the burden-shifting framework).   At this point, the

burden  switches  to  the  employer to  articulate  a  legitimate

nondiscriminatory  reason for the  challenged action.   This is a

burden of production, not of persuasion; the employer merely must

"set  forth, through  the  introduction of  admissible  evidence,

reasons for  its action which, if believed  by the trier of fact,                                                                          

would support a finding that unlawful discrimination was  not the

cause of the employment action."  St. Mary's, 113 S.  Ct. at 2747                                                      

(internal quotation omitted); accord Woods v. Friction Materials,                                                                           

Inc.,     F.3d     (1st Cir. 1994) [No. 93-2296, slip op. at 9].              

          If, as in this  case, the employer meets the  burden of

production,  the inference  arising  from the  plaintiff's  prima

                                14

facie case "drops from the case."  St. Mary's, 113 S. Ct. at 2747                                                       

(quoting  Burdine, 450  U.S. at  255 n.10).   The  plaintiff, who                           

retains the  burden of proof  throughout, then must  persuade the

trier  of  fact  that  he  has  been  victimized  by  intentional

discrimination.  See id. at 2748-49.  In this campaign, the facts                                                                           

that comprised  plaintiff's prima  facie case may  be considered,

but the  inference of  discrimination originally attributable  to

those facts  no longer pertains.   See id. at 2749;  Mesnick, 950                                                                      

F.2d at 823.  To carry  the devoir of persuasion on this ultimate

issue, the plaintiff must identify  probative evidence suggesting

that the reason given  by the employer for the  employment action

is  pretextual, and,  moreover,  that it  is  a pretext  for  age

discrimination.8  See  e.g., Mesnick, 950 F.2d at 823-24; Medina-                                                                           

Munoz v.  R.J.  Reynolds Tobacco  Co., 896  F.2d 5,  9 (1st  Cir.                                               

1990); Freeman, 865 F.2d at 1336.                        

          As can readily  be seen  from this  analysis, when,  as

now,  an employment discrimination action has been submitted to a

jury,  the burden-shifting framework  has fulfilled its function,

and  backtracking  serves no  useful purpose.    To focus  on the

existence of a prima  facie case after a discrimination  case has

                                                  

     8Depending on the  facts of the  particular case, showing  a
defendant's articulated explanation for an employment decision to
be  pretextual  may    or  may  not    suffice  to  establish age
discrimination,  "particularly if  disbelief is accompanied  by a
suspicion of mendacity."   St.  Mary's, 113 S.  Ct. at 2749;  see                                                                           
also Hazen  Paper Co. v. Biggins,  113 S. Ct. 1701,  1708 (1993);                                          
Woods,      F.3d at      n.3 [slip op.  at 11 n.3].   We need not               
probe the  point today,  as Sanchez adduced  independent evidence
which,  when   credited  by  the  jury,   sufficed  to  establish
appellant's discriminatory animus.

                                15

been fully tried on  the merits is to "unnecessarily  evade[] the

ultimate  question of  discrimination  vel non."   United  States                                                                           

Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 713-14 (1983);                                             

see also  Mesnick,  950  F.2d at  824-25.   By  like  token,  our                           

evaluation  of post-trial  motions seeking  relief from  a jury's

verdict  in such  a case  is similarly  confined to  the ultimate

question of  discrimination.   Consequently, to wander  afield in

pursuit of appellant's  phantom "prima facie case" argument  is a

bit like  undertaking early  morning calisthenics:   it  might be

good  exercise, but it certainly is not essential to the business

of the day.

          For  these  reasons,   appellant's  first  argument  is

unavailing.

          2.    Sufficiency  of  the  Evidence.    The  heart  of                    2.    Sufficiency  of  the  Evidence.                                                        

appellant's   ADEA  challenge   is  its   claim  of   evidentiary

insufficiency.  We have combed the record and detect a surfeit of

evidence from  which a  rational jury could  have concluded  that

appellant transgressed the law.

          The  evidence    much of which  is highlighted  in Part

II(B), supra   is  copious enough that a lengthy  exegesis, laden                      

with  exquisite  detail,  would  serve  no  useful  purpose.   It

suffices to say that, although appellant articulated a plausible,

nondiscriminatory reason for refusing to reinstate plaintiff   it

contended  that  he  had  not  sufficiently  recovered  from  his

injuries  to resume his  duties on  November 9,  1990    the jury

rejected  that explanation.  And the jury's skepticism has strong

                                16

roots in the record.

          It is  undisputed that  appellant refused  to reinstate

Sanchez on November 9.   Thus, the jury had to determine  whether

that refusal  constituted  a constructive  discharge, as  Sanchez

contended, or  whether, as appellant contended,  it constituted a

bona  fide  personnel  decision  based  on  Sanchez's  incomplete

recovery  from his injuries.  The jury  did not have to make this

determination in a vacuum.  It heard evidence, for example, about

Catinchi's  serial reprimands  of  plaintiff    reprimands  that,

given Soto's testimony, the jury could have believed to be bogus.

The jury also heard  evidence about a "promotion" that  seemed to

be no  promotion at all,  but more like  the kiss of death.   The

jury plausibly could  have thought the entire Aguadilla affair to

have been a subterfuge  aimed at forcing plaintiff's resignation.

Then,  too, the jury heard evidence about the SIF's assessment of

plaintiff's  health  status  and  supportably  could  have  found

Gonzalez's contrary views to be pretextual, particularly in light

of  his refusal  to  sign  a letter  to  the SIF  explaining  why

plaintiff had not been  reinstated.  Last, but surely  not least,

after  having refused  to reinstate Sanchez,  Gonzalez questioned

him about his  age and  made other age-related  remarks that  the

jury  reasonably could have construed  as evincing bias.  Indeed,

if the jury credited plaintiff's  version of this conversation   

as  it had  a  right to  do,  especially since  Gonzalez,  though

available,  was  never called  to testify  at trial    Gonzalez's

statements comprise potent evidence of age-based animus.

                                17

          We will not trespass on the reader's indulgence.  Here,

a  perceptive jury,  making permissible  credibility choices  and

drawing lawful inferences, could conclude that appellant embarked

on  a course of conduct designed to purge plaintiff from the work

force; that  the sudden offer of a sham "promotion" was a step in

the  plot; that,  after  the promotion  ploy failed,  plaintiff's

injury presented appellant with a fresh  opportunity to reach its

goal;  that appellant turned plaintiff away on November 9 despite

its  knowledge that  plaintiff  had  recuperated sufficiently  to

perform his job, thereby constructively discharging him; and that

appellant's actions  were  motivated by  a discriminatory  animus

directed  at plaintiff's age.  In  short, a reasonable factfinder

easily  could have resolved liability  as did the  jurors in this

case  without  perpetrating a  miscarriage  of  justice.   Hence,

appellant has  not surmounted the daunting obstacles posed by the

standards of review governing the district  court's denial of its

post-trial motions.

                         D.  Willfulness.                                   D.  Willfulness.                                                  

          Next, appellant contends that  the lower court erred in

upholding the jury's finding of  willfulness.  This contention is

unpersuasive.

          Willfulness  is  an issue  in  ADEA  cases because  the

statute  entitles a  prevailing plaintiff  to doubled  backpay in

situations involving  "willful violations."  29  U.S.C.   626(b).

Congress   intended  this  liquidated   damage  provision  to  be

punitive, thereby serving to deter willful misconduct.  See Trans                                                                           

                                18

World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985).   For                                          

this purpose, a violation is  considered willful if "the employer

. . . knew or showed reckless disregard for the matter of whether

its conduct was prohibited by the ADEA."  Id. at 126.                                                       

          A finding  of willfulness requires  something more than

merely  showing  that an  employer knew  about  the ADEA  and its

potential applicability in  the workplace.   See  id. at  127-28.                                                               

For  example, in  the context  of  determining whether  a settled

corporate policy violated the  ADEA, the Thurston Court concluded                                                           

that the company's  reasonable, good-faith  efforts to  determine

that  the policy  complied  with the  ADEA  sufficed to  avoid  a

finding  of willfulness even though the  policy violated the law.

See  id. at 129.  Willfulness, then,  requires an element akin to                  

reckless  disregard  of,  or   deliberate  indifference  to,   an

employer's  ADEA-related obligations.    See Hazen  Paper Co.  v.                                                                       

Biggins, 113 S.  Ct. 1701,  1708 (1993) ("The  word `willful'  is                 

widely used in the law,  and . . . it is  generally understood to

refer  to  conduct  that  is  not  merely  negligent.")  (quoting

McLaughlin  v. Richland Shoe Co.,  486 U.S. 128,  133 (1988); see                                                                           

also Benjamin v. United Merchants &amp; Mfrs., Inc., 873 F.2d  41, 44                                                         

(2d Cir. 1989) (explaining  that an ADEA violation is  willful if

the evidence  shows  that  the employer  has  not  merely  "acted

negligently,  inadvertently  [and]  innocently,"  but   has  been

"indifferent  to the  requirements of  the governing  statute and

acted in a purposeful, deliberate, or calculated fashion").

          In  Biggins, the  Supreme  Court held  that  Thurston's                                                                         

                                19

definition  of  willfulness  is  applicable  not  only  when  the

violation  is a  "formal, facially  discriminatory policy,  as in

Thurston,"  but also when the violation  is "an informal decision                  

by  an employer that was motivated by the employee's age[.]"  113

S. Ct. at 1705, 1708-10.9   As in Thurston, the Court  noted that                                                    

episodic violations of the ADEA in disparate treatment cases need

not automatically  lead to the imposition  of liquidated damages:

"If an employer  incorrectly but in good faith  and nonrecklessly

believes  that   the  statute  permits  a   particular  age-based

decision, then liquidated damages should not be imposed."  Id. at                                                                        

1709.

          We will not  tarry.  In this case,  on any tenable view

of the law, there is a firm factual foundation for a finding that

Proico  willfully  flouted  the  ADEA.    Here,  the  appellant's

misconduct lay at the  exact crossroads of the antidiscrimination

                                                  

     9Prior  to the Court's opinion in Biggins, the circuits were                                                        
in considerable  disarray  as  to the  quality  and  quantity  of
evidence, beyond evidence of mere awareness, that is necessary to
underbrace  an  award  of  liquidated damages  in  an  ADEA case.
Compare, e.g.,  Dreyer v. Arco Chem.  Co., 801 F.2d 651,  658 (3d                                                   
Cir. 1986)  (requiring "outrageous  conduct"), cert.  denied, 480                                                                      
U.S. 906  (1987) with, e.g., Brown  v. M &amp; M/Mars,  883 F.2d 505,                                                           
513  (7th Cir.  1989) (rejecting  the Third  Circuit's approach).
The  Biggins   Court  explicitly  rejected  the  Third  Circuit's                      
formulation, and  labelled as "misplaced" the  concern of various
circuits  that   application  of  the  Thurston   definition  was                                                         
inappropriate in the context  of "an informal disparate treatment
case."  113  S. Ct. at 1709.   The Court reasoned that  the "only
distinction between Thurston and [an informal disparate treatment                                      
case] is the existence of formal discrimination.  Age entered the
employment decision there through a formal and publicized policy,
and not as an undisclosed factor motivating the employer on an ad
hoc  basis . . .  surely an employer's  reluctance to acknowledge
its reliance  on  the forbidden  factor  should not  cut  against                                                                           
imposing a penalty."  Id. at 1709-10.                                   

                                20

laws and the employment  relationship; discharge and constructive

discharge  are among  the  paradigmatic  employment decisions  to

which the ADEA is addressed,  and appellant knew   or, at  least,

should  have known   that its corporate behavior ran afoul of the

antidiscrimination  laws.   Moreover,  the jury  had an  adequate

basis  for  a  finding  that  appellant's  refusal  to  reinstate

plaintiff was both the  culmination of a deliberate  strategy and

the crowning  blow in  a series of  actions reflecting  age-based

discrimination; or,  cloaked in the  words of the  Biggins Court,                                                                    

that,  notwithstanding  the  lack  of a  "formal  and  publicized

policy"  productive of discrimination,  there is  "an undisclosed

factor motivating  the employer  on an ad  hoc basis,"  id.   The                                                                     

questionable  reprimands, the audiences demanded by Catinchi, and

the  so-called promotion could all be viewed as steps toward this

end.   And the  employer's conduct  after  refusing to  reinstate

Sanchez  (including its failure to furnish the SIF with a written

explanation) strongly reinforce  the suggestion that what  befell

Sanchez was anything but a mere fortuity.

          On this pithy  record, we are  confident that the  jury

had a right  to weave  these several evidentiary  threads into  a

tapestry of calculated misconduct from which it could  infer that

Proico's conduct  toward plaintiff was not  merely negligent, but

bordered on  the contemptible.  Appellant's  actions clearly fall

outside  the safe  haven  for good  faith  but incorrect  conduct

described in Biggins and  Thurston.  Thus, the jury's  finding of                                            

                                21

willfulness is unimpugnable.10

III.  MENTAL AND MORAL DAMAGES          III.  MENTAL AND MORAL DAMAGES

          Appellant's penultimate  point is that, as  a matter of

law, there  was  insufficient evidence  to  support an  award  of

damages    under    Puerto   Rico's    comprehensive   employment

discrimination statute.   This  statute, familiarly known  as Law

100, creates a private cause of action in favor of any person who

is discharged  or otherwise  adversely affected in  employment by

reason   of,  inter   alia,   age  discrimination.11     An   age                                    
                                                  

     10To be sure, appellant  maintains that its violation cannot
be  considered willful because it did  not take reprisals against
Sanchez for refusing the Aguadilla assignment.  This reasoning is
specious.     At  best,  this   evidence  is  relevant,  but  not
dispositive.   Moreover,  it addresses  only one  of the  several
actions improperly taken against the plaintiff; on this record, a
reasonable jury could have  found a willful violation even  if it
had determined that the promotion incident, in and of itself, did
not transgress the ADEA.

     11The statute states in relevant part:

               Any employer who discharges, lays off or
          discriminates  against an  employee regarding
          his salary, wage, pay or remuneration, terms,
          rank,  conditions, or privileges of his work,
          or who fails or  refuses to hire or rehire  a
          person,  or  who  limits  or  classifies  his
          employees   in  any  manner  which  tends  to
          deprive a person of employment opportunities,
          or to  affect his status as  employee, on the
          basis  of age . .  . race, color, sex, social
          or  national  origin   or  social   position,
          political   or   religious  beliefs   of  the
          employee or applicant for employment:
               (a) shall incur civil liability
               (1) for a sum  equal to twice the amount
          of  damages  sustained  by  the  employee  or
          applicant for  employment on account  of such
          action.

                                22

discrimination  action brought  under  Law 100  differs from  one

brought under the ADEA in two significant respects.  First, as we

recognized in Wildman v.  Lerner Stores Corp., 771 F.2d  605 (1st                                                       

Cir.  1985), in an action  brought under the  ADEA, the plaintiff

retains  the burden of proof  throughout the trial;  in an action

brought under Law 100, in contrast, the burden of proof shifts to

the defendant once  the plaintiff has  established a prima  facie

case.  See id. at  609.  Second, and more noteworthy  for present                        

purposes, Law 100 permits a plaintiff, upon appropriate proof, to

recover  damages for  emotional  distress (or  "mental and  moral

suffering,"  to use the term  employed by the  district court and

the parties).  See  Garcia Pagan v. Shiley Caribbean,  122 D.P.R.                                                              

193 (1988).

          With this preface, we  turn to appellant's  sufficiency

challenge.   As  an initial  matter, it should  be noted  that we

consider  this challenge  only  in connection  with the  district

court's denial of  appellant's motion  for a new  trial.   Proico

neglected to make the sufficiency  claim when moving for judgment

as  a matter  of law  at the  close of  the evidence,  and, thus,

failed  to preserve it  for appeal.   See Fed. R.  Civ. P. 50(b).                                                   

This is a fatal omission, for "[if] a defendant wishes to renew a

motion for judgment  as a matter of  law at the post-trial  stage

with  a view to  having denial of  that motion considered  by the

court of appeals,  the defendant  is required to  have moved  for

judgment as  a matter of law  at the close of  all the evidence."
                                                  

P.R. Laws Ann. tit. 29,   146 (Supp. 1989).

                                23

Keisling  v. SER-Jobs for Progress,  Inc., 19 F.3d  755, 758 (1st                                                   

Cir.  1994); accord Jusino v. Zayas, 875  F.2d 986, 991 (1st Cir.                                             

1989).  Simply  stated, "[a] party may not base  its motion for a

judgment n.o.v. on a ground that was not argued in its motion for

a directed verdict."   Systemized  of New England,  Inc. v.  SCM,                                                                           

Inc., 732 F.2d 1030, 1035-36 (1st Cir. 1984).              

          Although  the  front  door  is closed,  the  back  door

remains ajar.  Appellant  did raise its sufficiency claim  in its

motion for new trial and, to  that extent, we must consider it in

connection with  our assessment  of  the weight  of the  credible

evidence.  See id. at 1036-37.  Having reached a variation of the                            

issue, however, we can swiftly dispose of it.  We regularly  have

said  that  "[t]ranslating  legal  damage into  money  damages   

especially  in  cases  which  involve few  significant  items  of

measurable economic loss   is a matter peculiarly within a jury's

ken."   Wagenmann,  829  F.2d at  215;  accord Ruiz  v.  Gonzalez                                                                           

Caraballo,  929 F.2d  31,  34 (1st  Cir.  1991).   And here,  the                   

deferential nature of appellate oversight is accentuated because,

while  the   jury  originally  awarded   plaintiff  $150,000  for

emotional  distress,  the district  court  reduced  the award  to

$37,500.12  It is a well-established principle that:

                                                  

     12Of course, the district court then doubled the pared award
pursuant to the statutory command that an employer's liability is
for "a sum equal to twice  the amount of damages sustained by the
employee."  P.R. Laws Ann. tit. 29,   146(a)(2).  For the purpose
of our analysis, however,  the relevant figure is  the underlying
damage  award not the doubled award because the doubling that Law
100 requires is not tied to any particular evidentiary showing on
the plaintiff's part.

                                24

          Once a verdict has  been trimmed and reshaped
          at the  hands of the trial  judge, an assault
          on the remaining amount calls upon [the court
          of  appeals] not  merely to grade  the essay,
          but  to  grade the  teacher's grading  of the
          essay.   The  resultant constraints  are  not
          inconsiderable.   We  agree  with  the  Fifth
          Circuit that "[w]here the trial court already
          has  invoked  its  discretion  in  granting a
          remittitur,  [the]  scope of  review  is even
          narrower than usual."   Stapleton v. Kawasaki                                                                 
          Heavy Industries, Ltd., 608 F.2d 571, 574 n.7                                          
          (5th Cir. 1979).

Ruiz, 929 F.2d  at 34-35  (quoting Wagenmann, 829  F.2d at  215).                                                      

The  appellant  must show,  therefore,  that  the reduced  figure

remains so extravagant as to shock the appellate conscience.  See                                                                           

id. at 35.             

          Appellant asserts that the evidence is insufficient  to

allow the  award  of  any  sum  of money  for  mental  and  moral                                   

suffering.   This  assertion seemingly  rests on  the absence  of

trial  testimony  from  any  mental health  professional  say,  a

psychiatrist or psychologist.   But appellant cites no  case that

stands   for  the   proposition  that   expert  testimony   is  a

prerequisite  to  an  award  of  damages  for  mental  and  moral

suffering.   In other jurisdictions,  expert testimony ordinarily

is not required  to ground  money damages for  mental anguish  or

emotional distress.  See, e.g., Wulf v. City of Wichita, 883 F.2d                                                                 

842,  875 (10th Cir. 1989) (upholding award of damages for mental

anguish  and distress based  solely on lay  testimony); Busche v.                                                                        

Burkee, 649  F.2d 509, 519 n.12 (7th Cir.) (rejecting requirement                

of  testimony  of medical  or  psychiatric experts  for  award of

damages  for  emotional distress),  cert.  denied,  454 U.S.  897                                                           

                                25

(1981);  Gore  v.  Turner, 563  F.2d  159,  164  (5th Cir.  1977)                                   

(stating  that damages  for emotional  distress "may  be inferred

from  the circumstances  as  well as  proved  by the  testimony")

(citations  omitted); see also Carey v. Piphus, 435 U.S. 247, 264                                                        

n.20 (1978) ("Although essentially subjective, genuine injury  in

this  respect  [mental suffering  or  emotional  anguish] may  be

evidenced by one's conduct and observed  by others."); Marable v.                                                                        

Walker,  704  F.2d 1219,  1220  (11th  Cir.  1983) (holding  that                

absence of "evidence of  pecuniary loss, psychiatric disturbance,

effect of social activity, or physical symptoms . . . go[es] more

to  the amount, rather than the fact, of damage[s]" for emotional

distress).  We see  no basis for  imputing a more stringent  rule

under Puerto Rico law.13

          Over and beyond this hurdle, we think that the evidence

of record adequately  supports the  pared award.   A recovery  of

$37,500 for emotional distress  can "fairly be said to  flow from

the  evidence adduced at trial," Ruiz, 929 F.2d at 35, especially                                               

given   plaintiff's  testimony   that   appellant's  conduct   in

wrongfully  discharging   him  not  only  stripped   him  of  his

livelihood  and dignity,  but also  drove him  into bankruptcy.14
                                                  

     13We  hasten to  add that  the district  court appropriately
took  the absence of such  evidence into account  in fashioning a
remittitur,  finding that  "since  psychological and  psychiatric
evidence was  not  presented, the  record  would only  support  a
$37,500 award for pain, mental suffering, and humiliation."   The
plaintiff  accepted the remittitur on  this count as  on the ADEA
count.

     14Plaintiff testified that he  was deeply affected by having
to declare  bankruptcy because  he had always  "religiously" paid
his debts.

                                26

Then, too, plaintiff testified emphatically about the humiliation

that he suffered  in the  course of shuttling  futilely back  and

forth  between Proico and  the SIF, and the  jury could well have

credited that testimony.

          We believe  that  we have  written enough  to give  the

reader  the flavor  of the  record.   Though plaintiff's  case on

damages was relatively asthenic,  we cannot say that  the reduced

award  was   unjustified  or  that  it   offends  our  collective

conscience.   Cf.  Wagenmann, 829  F.2d at  215 (finding  damages                                      

justified  when  record  reflected  "stress,  fear,  humiliation,

embarrassment, and stigmatization").

IV.  DUPLICATIVE DAMAGES          IV.  DUPLICATIVE DAMAGES

          Appellant's  last  asseveration  is  that  the district

court erred by doubling  plaintiff's damages under both the  ADEA

and Law 100.  This asseveration  presents a pure question of law,

thereby sparking de  novo review.15   See McCarthy  v. Azure,  22                                                                      

F.3d  351,  354  (1st  Cir.  1994);  Liberty  Mut.  Ins.  Co.  v.                                                                       

Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).                                   

          In different  legal  contexts  we  have  several  times

                                                  

     15In  the interest of clarity we think it worthwhile to note
that appellant does  not argue that the  underlying damage awards
are duplicative.  Indeed, they are not:  the jury awarded Sanchez
compensation for the independent losses of backpay under ADEA and
mental  anguish  under Law  100, see  supra  note 1.   Similarly,                                                     
appellant does not argue that either the aggregate damages or the
total punitive damages  are so  great as to  insult due  process.
See generally Pacific  Mut. Life Ins.  Co. v. Haslip, 499  U.S. 1                                                              
(1993).   Appellant  argues  only that  doubling both  underlying
awards is duplicative.

                                27

expressed the principle that "a plaintiff is entitled to only one

full recovery, no matter  how many legal grounds may  support the

verdict."   Freeman, 865  F.2d at 1345; see  also Linn v. Andover                                                                           

Newton  Theolog. Sch.,  Inc., 874  F.2d 1,  6-8 (1st  Cir. 1989).                                      

Appellant  argues  that  this  doctrine  has  application   here:

doubling  both the  ADEA  and Law  100  awards, appellant  avers,

allows the plaintiff to recover twice for the same loss.

          Appellant's  postulate  does  not  survive  scrutiny.16

Liquidated damages  under ADEA  are punitive  in nature,  and are

intended to deter violations.  See Thurston, 469 U.S. at 125.  In                                                     

contrast,  the Puerto  Rico  Supreme Court,  in interpreting  the

damages provisions of Law 100, has stated that  the legislature's

"intent was to devise  a formula to redress damages  arising from

discrimination in employment."  Garcia Pagan v. Shiley Caribbean,                                                                          

122 D.P.R. 193 (1988).   This language fits far  more comfortably

with an aim  to compensate rather  than to punish  or deter.   To

this  extent, then, the ADEA  and Law 100  awards serve different

ends   and   represent   distinct   types   of   damage   awards.

                                                  

     16The  cases  relied on  by  appellant  discuss a  different
scenario.  In the pre-Thurston era,  liquidated damages under the                                        
ADEA were often thought to be compensatory in nature.  See, e.g.,                                                                          
Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1102 (8th Cir. 1982).                                     
When a discrimination victim received both liquidated damages and
prejudgment interest,  some courts took the  view that liquidated
damages  were intended to "cover, among other things, loss due to
delay,"  and,  therefore,  held  that  awarding  both  liquidated
damages  and  prejudgment interest  would constitute  an improper
multiple recovery,  for "loss  due to  delay [is]  precisely what
prejudgment interest protects against.  Linn, 874 F.2d at 6; see,                                                                          
e.g., Kolb  v. Goldring, 694 F.2d 869,  875 (1st Cir. 1982); Blim                                                                           
v. Western Elec. Co.,  731 F.2d 1473, 1479-80 (10th  Cir.), cert.                                                                           
denied, 469 U.S. 874 (1984).                

                                28

Consequently, the two  awards, though calculated  in part by  the

same formula, i.e., doubling, cannot  be deemed duplicative.  Cf.                                                                           

Lilley v. BTM Corp., 958  F.2d 746, 755 (6th Cir.) (holding  that                             

awards for liquidated damages under ADEA and prejudgment interest

under  state  antidiscrimination  statute  are   not  duplicative

because the  ADEA's "liquidated damages are  punitive [while the]

prejudgment interest  [is] compensatory"),  cert. denied, 113  S.                                                                  

Ct. 376 (1992).

          Be that  as it may, this appeal  does not require us to

decide  today  whether   the  doubling  under   Law  100  has   a

compensatory  thrust.   Even if  we were  to assume  arguendo the                                                                       

opposite, i.e.,  that  doubling  under  Law 100  is  punitive  in                        

nature,  appellant  would  not  profit.    Punitive  damages  are

directed  at deterring  and  punishing defendants;  they are  not                                                           

designed to  compensate plaintiffs for losses.  See Thurston, 469                                                                      

U.S. at 125; Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d                                                                  

373,  383 (8th Cir. 1993), cert.  denied, 114 S. Ct. 2120 (1994).                                                  

As  such,  the  considerations   that  operate  to  bar  multiple

recoveries are conceptually and legally inapplicable to  punitive

damages.  Of course, potential  punitive liability may be limited

by legislative intent  or due  process, see TXO  Prod'n Corp.  v.                                                                       

Alliance  Resources  Corp.,  113  S. Ct.  2711,  2718-19  (1993);                                    

Pacific Mut. Life  Ins. Co. v. Haslip, 499  U.S. 1, 14-15 (1991),                                               

but  appellant has  not argued  either of  those aspects  in this

appeal.  And apart from statute or constitutional considerations,

we  know of no legal concept of duplicative awards that functions

                                29

as a limitation on exemplary damages.

          Thus, we come  full circle.  Regardless  of whether the

doubling  of a Law  100 award for  mental and  moral suffering is

conceived to  be compensatory or punitive  in nature, appellant's

argument fails.

V.  CONCLUSION          V.  CONCLUSION

          We  need  go  no further.    The  record reveals  ample

evidence to  sustain the jury's finding  that appellant willfully

terminated  plaintiff's  employment  due   to  his  age,  thereby

transgressing  both  federal  and  Commonwealth  statutes.    The

ensuing damage awards, as refined by the district court, are also

within lawful parameters.  Proico's ship has sailed.

Affirmed.          Affirmed.                  

                                30
