USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1608
AGNES VERA-LOZANO,
Plaintiff - Appellee,
v.
INTERNATIONAL BROADCASTING,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Boudin, Circuit Judge,
_____________
and Boyle,* Senior District Judge.
_____________________
_____________________
Igor

J. Dom nguez-P rez,

with whom

Igor J.

Dom nguez Law

________________________
______________________
Offices was on brief for appellant.
_______
Charles S. Hey-Maestre, with whom Peter Berkowitz and Rick
_______________________
________________
____
Nemcik-Cruz were on brief for appellee.
___________

____________________
March 22, 1995
____________________

____________________
*

Of the District of Rhode Island, sitting by designation.

Boyle,
Boyle,

Senior
District
Judge.
Senior
District
Judge
_________________________

Broadcasting Corporation
jury

(IBC) appeals

verdict in favor of

error when

upon a

her claims under

1964 and Puerto Rico Laws 3

IBC claims that the district court committed reversible

it denied IBC's

matter of law.
exercised

a judgment based

Agnes Vera-Lozano on

Title VII of the Civil Rights Act of

and 100.

International

Rule 50

motions for

judgment as

IBC also contends that the lower court improperly

supplemental

jurisdiction

over

claims

arising from

Puerto Rico Laws

court erred
pay.

3 and 100.

Finally, IBC

claims that the lower

in awarding compensatory damages

and excessive back

For the following reasons we affirm the court below.

I.
I.

Appellee,

Vera,

BACKGROUND
BACKGROUND

filed

complaint

with

the

Anti-

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

alleging employment
Rights Act
did
cause

discrimination under Title VII

of 1964.

She

not respond at that

existed

for

duly notified the

time. The UAD

discrimination

of the Civil

Appellant, IBC, who

determined that probable

suit

based

on

sex

and

pregnancy.
The
1992, in the
Puerto Rico.

complaint in the action below was filed on June 2,

United States
The complaint

District Court for

alleged claims arising

VII of the Civil Rights Act of 1964, 42 U.S.C.

and invoked the court's

the District

of

under Title

2000e, et seq.,
_______

supplemental jurisdiction to hear claims

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arising under Puerto Rico Law 3, 29 P.R.L.A.

467,

et seq., and
_______

Law 100, as amended, 29 P.R.L.A.

146, et seq.
_______

exercised pursuant to 28 U.S.C.

1331, 2201 and 2202.

Vera was a full-time

Star

Telecast

Corp.

(Three

master control operator for Three

Star), which

Channel 18 from

1984 until December

was

by IBC.

taken over

receiving and

owned

and

21, 1990, when

The master control

broadcasting of

were six master

Jurisdiction was

operated

the station

unit regulates the

television transmissions.

control operators

at Three Star;

There

Vera was

the

most senior.
Pedro

Rom n-Collazo

President, General
tenure,

was

at

Manager, and owner

IBC purchased the permit

well as other assets of

all

relevant

of IBC.

During

to broadcast on

Three Star Telecast.

times

Rom n's

Channel 18 as

Grisel Torres,

an

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

On December 21, 1990, the last
Channel

18, it laid

The new

owner assured the

would be rehired.

day Three Star operated

off twenty employees,

retaining only four.

dismissed former employees

In fact, several days prior

that they

to the takeover,

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

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

to prepare a
hired.

list of

three former

That list included Vera.

when he submitted the list to

Three Star

employees to

be

Modeste testified at trial that

Torres, she told him that Vera was

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

Vera

gave

birth

on

January

22,

1991.

In

early

-3-

February,

she went to Modeste

that he would contact

IBC,

however, never

company
that

seeking employment.

Torres about a possible position

contacted

was seeking a master

an opening existed

Vera despite

Vera.

asked her

the fact

control operator.

at IBC from

In response to this advertisement,

Again, he

He told her

to resubmit

for her.

that the

Vera discovered

a newspaper advertisement.

Vera again contacted Modeste.

her resume. IBC

did not

hire

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

who had never worked for Three Star.

II.
II.

IBC
law at

RULE 50 MOTION
RULE 50 MOTION

made a Rule 50 motion for

the close of Vera's

case.

IBC

judgment as a matter of
alleged that it

was not

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

This motion

defendant's case.

was renewed

after the close

of the

Title
unlawful for
account of

VII of

the Civil

Rights Act

of 1964

an employer to discriminate against

gender or pregnancy.

the purposes of that

makes it

an employee on

See 42 U.S.C.
___

2000e-2.

statute "employer" is defined as

For

"a person

engaged in an industry affecting commerce who has fifteen or more

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

weeks in the current
2000e.

Since

December

or preceding calendar year."

IBC did not

own the

21, 1990, IBC cannot

assets of

be an employer

42 U.S.C.

Three Star until

for that calendar

-4-

year.

fail

or

Section 2000e-2

makes it unlawful for

refuse

or

to hire

to

otherwise discriminate against

such

individual's

. .

discharge

any individual,

any individual .

. sex."

The

an employer "to

. . because

record shows

or

of

that Vera

reapplied for her former position of master control unit operator

on
was

two separate occasions in

ongoing during

that

1991.

time.

The

IBC's

denial of employment

"current year"

then,

as

defined by

the statute,

is 1991.

See Dumas
___ _____

v. Town of Mount
______________

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

argues that part-time

employees should be counted

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

week.

We considered this

Jack Reilly's Inc., 717 F.2d

__________________
law

in this

circuit to

defendant was a small

Although
least

question in Thurber
_______

633 (1st Cir. 1983), and found

be to

the contrary.

In

had

only nine

See id.
___ __

full-time employees,

at

fifteen employees were on the payroll for more than twenty

weeks during the relevant calendar year.

See id. at 634.

___ ___

On any

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

id.
__

the

Thurber, the
_______

bar in Cambridge, Massachusetts.

the defendant

v.

We

concluded that

purposes of

Title VII.

the defendant
See
___

id.
__

was an employer

We reasoned

See
___

for the

that the relevant

employees

were not only those who were physically present at the

bar

day,

each

but all

those

who

had

an ongoing

employment

relationship with the employer during the requisite twenty weeks.

See id. (citing Pedreyra
___ ___
________

v. Cornell Prescription Pharmacies, 465

_______________________________
-5-

F. Supp.

936, 941 (D.Colo. 1979);

Hornick v. Borough of Duryea,

_______
_________________

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

This
Title

VII's legislative

concern for
to

reasoning

have

adopted

the
Act.

exists regardless
See
___

considerable

Sen. Dirksen).

An

from

the

employee is

ambit a

number

counted

an employment relationship

55-19, 1955-1 C.B.

the burden on

one;

express

See 100 Cong. Rec. S13087 (daily ed. June

___

is true that such a

within its

establishments,

"employer"

of whether the employee reported

Rev. Rule

bring

Congress did

light of

businesses, it appears

of

for each day that

Thurber, although it
_______
may

While

definition

(statement of

under that statute

day.

history.

especially in

the over-regulation of small

Unemployment Tax
9, 1964)

is persuasive

496.

to work each

As we

noted in

reading of the statute

of truly

"Mom

these businesses

and Pop"

would not

simply put, they could not discriminate.

be a

See
___

Thurber at 635.
_______
Counting both part-time and full-time
payroll during 1991,
in the

employees on the

there is sufficient evidence

form of testimony

of Vera

and Rom n to

on the record

support finding

that

IBC was

reason we find

an employer

as defined

by Title

that the district court's

VII.

For this

denial of the

Rule 50

motions was not in error.

III.
III.

IBC

SUPPLEMENTAL JURISDICTION
SUPPLEMENTAL JURISDICTION

contends

that

the

district

court

improperly

-6-

exercised supplemental jurisdiction over the claims arising under

the Puerto Rico statutes.
In
granted
formerly

1990,

Congress enacted

federal courts "supplemental

been

referred

"ancillary jurisdiction."

to

as

28

U.S.C.

1367,

jurisdiction" or

"pendent

which

what had

jurisdiction"

and

This section states that "in any civil

action over which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over all

other claims that

are so related to

claims in the action

that they form part of the same case and controversy."

. . .

28 U.S.C.

1367 (1993).
This statute
United Mine Workers v.
___________________

codified the Supreme

Court's analysis in

Gibbs, 383 U.S. 715 (1966).

_____

See Sinclair
___ ________

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

_______________

Bridges v.
_______

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

__________________
Court

stated

supplemental

in

with a

common

nucleus
be

proceeding."

U.S.

937

district court

over a

federal claim and

of

operative

expected

to

Gibbs, 383
_____

Boston University, 891

_________________
496

that

jurisdiction

joined

ordinarily

Gibbs
_____

(1989).

federal
state

U.S. at

them
725;

F.2d 337, 356

The

may refuse to

statute

the
both

may

exercise

whenever it

plaintiff
in

Brown
_____

one

"would

judicial

v. Trustees of
____________

(1st Cir.), cert.

_____
expressly

is

"derive from a

denied,
______

states that

exercise this jurisdiction

state claim "substantially predominates

over

claim

the two claims

fact" and
try

court

The

if the

over the claim or claims

which the district court has original jurisdiction" or "the

-7-

claim

raises a novel or complex issue

of state law."

28 U.S.C.

3567(c)(1), (c)(2).
IBC does not dispute that the federal and

state claims

arise out of the same set of facts.

IBC's only argument is that

the

discretion

in

because the

state statutes

district

jurisdiction

court

abused

over the

its

state claims

have different standards of

proof and may therefore

exercising

confuse the

jury.
Because the
jurisdiction is

decision whether to

left to

the

exercise supplemental

broad discretion

of the

district

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

of discretion.
1991);

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

___ ______
______

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

_________
_________________________

Cir. 1982).

Here there

is clearly

no such abuse:

the

state

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

law;

and

economy

joint adjudication
and fairness.

serves

the

interest of

judicial

We therefore find that the district court

properly exercised supplemental jurisdiction.

IV.
IV.

JURY TRIAL
JURY TRIAL

IBC claims that the district court committed reversible

error when

it tried the case before a jury.

The Constitution of

Puerto Rico does not afford litigants in a civil action the right
to trial by jury.

IBC contends therefore that the district court

erred

in allowing a jury to determine facts needed to decide the

-8-

claims arising under the laws of Puerto Rico.

This
the

claim is without merit.

Seventh Amendment

Puerto

affords

It is well accepted that

litigants in

federal courts

in

Rico the right to trial by jury, notwithstanding the fact

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

See Marshall
___ ________

(1st Cir. 1987),

v. P rez Arzuaga, 828

_____________

F.2d 845, 849

cert. denied, Avis Rent-A-Car of Puerto Rico,

_____ ______ _________________________________

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

____
________

LaForest v. Autoridad de
________
____________

las Fuentes Fluviales de P.R., 536 F.2d 443, 446 (1st Cir. 1976);
_____________________________
see also Byrd
___ ____ ____

v. Blue Ridge Cooperative, 356

_______________________

(1958).

V.
V.

DAMAGES
DAMAGES

U.S. 525,

536-40

IBC maintains

that the

the jury to

award compensatory

application

of the

verdict

form

Civil

of

incorrect,

was

1985);

the

for

an

1991.

error

on

the

and will

See Shepp v. Uehlinger, 775

___ _____
_________

by allowing

retroactive
However,

award of

the

compensatory

Puerto Rico

violated Puerto Rico

award of compensatory

claim based

harmless

see also
________

of

finding that IBC

alone support the

submission

appeal.

Rights Act

on a

violation of either federal or

______

Because the jury's

law would

damages based

correctly allowed

damages based on the

law.

trial court erred

Civil

damages, the

Rights Act,

not

be

if

disturbed on

F.2d 452, 456-57 (1st Cir.

Gillentine v. McKeand, 426

__________
_______

F.2d 717, 724 (1st

Cir. 1970).
-9-

IBC also
for

back pay is

raise this issue

post-verdict

complains that the amount

not supported by

of damages awarded

the evidence.

in the court below either during

motion to set-aside the verdict.

IBC failed to

trial or in a

As a general rule

a Court
first

of Appeals
time

will not

on appeal

consider an

absent

issue raised

exceptional

for the

circumstances.

See
___

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

_______________________________________
_________________
F.2d 37,
1228,

41 (1st

1233

Cir. 1992);

(1st Cir.

1982).

Mello v.
_____
Here,

K-Mart Corp.,
____________
there are

792 F.2d

no exceptional

circumstances and thus we consider the issue to be waived.

Had IBC

properly raised

would be unchanged.
of

For the party seeking

jury-awarded damages,

daunting.

We will not

loss "provided it does

or strike such

this issue below,

the applicable

the result

to attack the amount

standard of

review is

disturb an award of damages for

economic

not 'violate the conscience of

the court

a dissonant

were the judgment permitted

chord that justice

to stand.'"

Towing and Transportation Co.,

_______________________________

24 F.3d

would be

See Havinga
___ _______
1480,

denied

v. Crowley
_______

1489 (1st

Cir.

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

______
___________________
Cir. 1988));
874 F.2d 1,

Linn v.
____

Andover Newton Theological School, Inc.,

________________________________________

6 (1st Cir. 1989).

does not alone justify

"Generousness

of a jury's award

an appellate court in setting

it aside."

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

Under

standard the court should "examine the evidence in detail .

. . and in a light most favorable to the plaintiff."

F.3d at 1489.

Havinga, 24
_______

-10-

There
verdict

as to

failed to

is ample

support in the

back pay.

IBC's

mitigate her damages

main contention

should not be awarded

the jury's

is

that Vera

by voluntarily resigning

job as a receptionist in February of 1992.

pay

record for

IBC

during the period

from a

claims that back

beginning with the

date of her voluntary resignation until the date the judgment was
entered.
guess

We

will not

what may

supplant the jury's

have been
of

their

Vera's

verdict nor

thought process
or

her

regarding the

voluntary

nature

efforts

to

mitigate.

This reluctance is especially appropriate in light

of

evidence, in the form of

resignation

second-

Vera's testimony, supporting a possible

finding that the receptionist job provided no additional economic

support given the irregular work schedule, the cost of child care
for her two children and the low pay.

VI.
VI.

CONCLUSION
CONCLUSION

For the foregoing reasons, we affirm.

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