Rodriguez-Hernandez v. Miranda-Velez

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-2027
SANDRA RODRIGUEZ-HERNANDEZ,
Plaintiff, Appellee,
v.
EDWIN MIRANDA-VELEZ, ET AL.,
Defendants, Appellants.
No. 96-1416
SANDRA RODRIGUEZ-HERNANDEZ,
Plaintiff, Appellee,
v.
EDWIN MIRANDA-VELEZ, ET AL.,
Defendants, Appellants.
No. 97-1444
SANDRA RODRIGUEZ-HERNANDEZ,
Plaintiff, Appellee,
v.
EDWIN MIRANDA-VELEZ, ET AL.,
Defendants, Appellants.
No. 97-1445
SANDRA RODRIGUEZ-HERNANDEZ,
Plaintiff, Appellant,
v.
EDWIN MIRANDA-VELEZ, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and DiClerico,* District Judge.
Judith Berkan, with whom Rosalinda Pesquera and Mary Jo Mendez
were on brief, for plaintiff.
Eugene F. Hestres, with whom Bird, Bird & Hestres was on brief,
for defendants.
Frank D. Inserni on brief pro se.
January 6, 1998
* Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. Sandra Rodriguez-Hernandez
LYNCH, Circuit Judge.
was discharged from her job at Occidental International after
complaining to her employer about being subjected to the
sexual demands of a high-level executive at Occidental's most
important customer. The main issues presented by this appeal
are whether the jury's verdict in favor of the customer
dictates that the verdict against her employer be reversed;
whether the court's evidentiary and juror peremptory
challenge rulings were correct; whether the district court
evinced bias against the defendants; and whether the court's
attorney's fees award was adequate. We affirm the verdict,
but we vacate and remand on the attorney's fees issue.
I.
We review the facts in the light most favorable to
the jury's verdict. See Ansin v. River Oaks Furniture, Inc.,
105 F.3d 745, 749 (1st Cir. 1997), cert. denied, 118 S. Ct.
70 (1997).
Rodriguez worked as an office manager for
Occidental International, a Florida company with offices in
Florida and Puerto Rico. Rodriguez started working for
Occidental in December of 1988 in the Traffic and Claims
division of the Puerto Rico office. She was twice promoted,
and was put in charge of overseeing the daily operations of
her office in February of 1990. While she was never formally
evaluated during her employment, Rodriguez received regular
praise for her work, and before the suspension and dismissal
that led to this lawsuit, she had never been the subject of
disciplinary action.
Occidental International sells electrical and
industrial equipment. Occidental's most important market was
Puerto Rico, and its most important customer was the Puerto
Rico Electric Power Authority ("PREPA"). At the time of
Rodriguez's dismissal, approximately 80% of Occidental's
business in Puerto Rico was with PREPA.
Omar Chavez was the President and sole shareholder
of Occidental. Chavez lived in Florida, and would make
monthly business trips to Puerto Rico. Chavez pursued a
number of strategies which he thought would ensure continued
good relations between Occidental and its customers,
particularly with PREPA. Evidence presented at trial showed
that Chavez primarily employed young, attractive women, known
to customers as "Occidental Gals," and instructed them to be
especially cordial to PREPA employees.
Good relations were particularly important with
high-ranking PREPA officials like Edwin Miranda-Velez, the
Chief of PREPA's Materials Management Division and the
overseer of PREPA's public contracts for the type of goods
sold by Occidental. Chavez introduced Rodriguez to Miranda,
and told her that Miranda was very important for Occidental's
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business and that she and the other employees should be nice
to him and "keep him satisfied." She was instructed to visit
Miranda every time she went to the PREPA offices.
Occidental pursued other strategies. It made
political contributions to the Popular Democratic Party, of
which Miranda was a very active member, and solicited
donations on its behalf. Chavez financed social activities
for PREPA employees and gave Christmas presents to PREPA
officials. In December of 1990, Chavez threw a party for
PREPA officials at a local hotel. The members of the
Occidental Puerto Rico staff, all female, were instructed to
attend the event unaccompanied, so they would be available to
dance with the PREPA executives. The night's entertainment
at that party included a dancing show performed by scantily
clad women.
The close relationship with PREPA benefitted
Occidental, and Chavez, in several ways. Chavez was able to
learn from Miranda in advance what bids would be coming up
and how much Occidental's competitors were bidding. Miranda
helped to steer business to Occidental through requests for
proposals that were handled outside the ordinary bidding
process. For example, Miranda helped Occidental to obtain a
transportation contract on an "emergency" basis. Miranda
signed all pertinent documentation and recommended payments
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to suppliers. There were also allegations that Miranda was
able to help Occidental avoid trouble over tax disclosures.
Miranda began to make unwelcome approaches and
suggestive comments to Rodriguez. He invited her out to
dinner. He asked her to visit his office after hours and on
Friday evenings. He anonymously sent her flowers for her
birthday and included a sexually explicit card. Rodriguez
complained to Chavez about this behavior; Chavez responded by
stressing that Miranda was an important client, but assured
her that he would deal with the problem.
The culmination, as it were, of Miranda's advances
came on February 28, 1992. Miranda called Rodriguez and told
her he would come pick her up to take her to a motel.
Rodriguez, upset by Miranda's latest advance, called Chavez
to complain about Miranda's call. Chavez responded by
defending Miranda, and saying that Rodriguez should respond
to Miranda "as a woman." Rodriguez told Chavez that if he
would do nothing about the situation, she would take her
complaints to the Director of PREPA.
That weekend, Chavez flew to Puerto Rico. On March
9, 1992, Chavez gave Rodriguez a letter informing her that
she was suspended from work for thirty days. The letter
stated the reasons for her suspension as unauthorized use of
company property, contracting for services in the company
name without authorization, and absenteeism. On April 6,
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Rodriguez received a second letter dismissing her from
employment at Occidental. The grounds for her dismissal were
an unexplained imbalance of $157.00 in petty cash funds and
negligence in executing daily functions such as picking up
company mail, as well as the problems noted in the March 9
letter. Rodriguez had never been notified of any such
deficiencies before.
II.
In September of 1992, Rodriguez filed a complaint
against Occidental and Chavez with the Anti-Discrimination
Unit of the Puerto Rico Department of Labor and with the
Equal Employment Opportunity Commission. In November of
1992, while that complaint was before the agency, Rodriguez
sued Miranda in district court under 42 U.S.C. 1983 for
violations of her rights under the Fifth, Ninth, and
Fourteenth Amendments, and sued both Miranda and PREPA under
Puerto Rico tort law and the Puerto Rico Constitution.
After exhausting her administrative remedies,
Rodriguez received a right-to-sue letter from the EEOC in
June of 1993 and amended her complaint to name Chavez and
Occidental as defendants. The amended complaint asserted
claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e-2000e-17, as well as claims under Puerto Rico
law.
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In July of 1994, the district court issued an order
eliminating some of Rodriguez's claims. The district court
dismissed the 1983 claim, but not the Puerto Rico law
claims, against Miranda. Thus only Puerto Rico law claims
remained against Miranda and PREPA, over which the court
retained jurisdiction under 28 U.S.C. 1367. The district
court granted summary judgment in favor of defendant Chavez
on Rodriguez's Title VII claim against Chavez, but allowed
the Puerto Rico law claims against Chavez to go to the jury.
Thus the only federal claim that remained at the start of the
trial was Rodriguez's Title VII claim against her employer,
Occidental. The only claims which went to the jury against
Miranda were based on commonwealth law.
The trial was hotly contested and extremely
contentious. In the course of the trial, the district court
sanctioned defense counsel for violating an order in limine.
After a five week trial, the jury held Occidental and Chavez
liable to the plaintiff, but found Miranda and PREPA not
liable. The jury form simply asked that the jurors answer
yes or no as to whether each of the defendants was "liable to
plaintiff Sandra Rodriguez." Rodriguez received an award of
$200,000 in compensatory and punitive damages against
Occidental and Chavez. The jury answered no as to the
commonwealth law claims against Miranda.
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The district court awarded Rodriguez attorney's
fees. But in the face of a documented request for
approximately $440,000 in fees and costs, the court awarded
only $150,223.26. The district court disallowed some work as
duplicative, some as having been performed by attorneys when
the court thought it should have been done by paralegals, and
further reduced the award because of the plaintiff's "lack of
success."
Occidental and Chavez appeal from the jury verdict
in cases number 96-1416 and 97-1444, alleging a host of
errors and demanding a new trial. Defense counsel Inserni
appeals in case number 95-2027 from the contempt order issued
against him during the trial. Plaintiff cross-appeals, in
case number 97-1445, arguing that the district court's award
of attorney's fees was in error and insufficient.
III. Appeal of Occidental and Chavez
A. Jury Inconsistency Argument
Occidental and Chavez's flagship argument, simply
put, is that because the jury did not find either Miranda or
PREPA liable to Rodriguez, Chavez and Occidental cannot be
held liable either. Rodriguez could not have been dismissed
for refusing to submit to (or threatening to complain of)
Miranda's advances, defendants argue, because the jury
verdict shows that Miranda never engaged in the conduct of
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which she complains. This argument is founded upon the
erroneous assumption that the jury's verdict that Miranda and
PREPA are not "liable to plaintiff" under Puerto Rico tort or
constitutional law necessarily means that the jury did not
believe that Miranda made unwanted sexual advances, that
Rodriguez complained of these advances, and that her employer
fired her in response.
The defendants' argument fails, as the jury could
quite plausibly have found a set of facts that would render
Chavez and Occidental, but not Miranda and PREPA, "liable to
plaintiff" on the claims asserted.
In order to evaluate the defendants' arguments, it
is important to understand the nature of the claims brought
against each of the four defendants in this case. Rodriguez
sued the customer, Miranda and PREPA on two theories --
liability under Puerto Rico tort law and violation of
Rodriguez's rights to "privacy and dignity" under the Puerto
Rico Constitution. The jury was instructed that, to find
Miranda liable to the plaintiff in negligence, it had to find
"that there was an act or omission, by fault or negligence,
that caused the plaintiff's injury." See P.R. Laws Ann. tit.
31, 5141 (1991) ("A person who by act or omission causes
damage to another through fault or negligence shall be
obliged to repair the damage so done. Concurrent imprudence
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of the party aggrieved does not exempt from liability, but
entails a reduction in the indemnity.")
For Miranda to be liable under the Constitution of
Puerto Rico, the jury was instructed that it must find that
Miranda "engaged in conduct against the plaintiff which
adversely affected her dignity, honor, or reputation . . . ."
See P.R. Const. art. II, 1 ("The dignity of the human being
is inviolable. . . . No discrimination shall be made on
account of . . . sex . . . ."); P.R. Const. art. II, 8
("Every person has the right to the protection of law against
abusive attacks on his honor, reputation and private or
family life.").
If Miranda was not liable to Rodriguez under these
two theories, then PREPA could not be found liable to
Rodriguez either. PREPA's liability was only in respondeat
superior for the actions of Miranda.
Both of the claims as described to the jury contain
an element of causation. The jury may simply have decided
that Rodriguez's injuries resulted not from Miranda's
actions, but from those of Chavez and Occidental. Thus the
jury may have declined to hold Miranda liable, not because
the jurors did not believe that he made sexual advances, but
rather because they concluded that this behavior did not
itself cause the harms Rodriguez suffered.
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In contrast, the plaintiff asserted four different
theories of liability against Chavez under Puerto Rico law,
none of which is inconsistent with the jury's refusal to hold
Miranda and PREPA liable. In addition to the tort and
constitutional claims described above, Rodriguez sued Chavez
for sex discrimination and retaliatory discharge. Puerto
Rico's Law 100 forbids sex discrimination by employers, and
provides for civil liability and damages. See P.R. Laws Ann.
tit. 29, 146 (1995). Puerto Rico's Law 17 defines sex
harassment as a type of sex discrimination, and forbids
retaliation against persons who "reject" the employer's
sexually discriminatory practices. See P.R. Laws Ann. tit.
29, 155-155l (1995). Under Puerto Rico law, an employer
is held responsible for "the acts of sexual harassment
towards his employees in the work place by persons not
employed by him if the employer or his agents or supervisors
knew or should have known of such conduct and did not take
immediate and adequate action to correct the situation."
P.R. Laws Ann. tit. 29, 155f.
The plaintiff also sought separation pay from
Chavez and Occidental for unjust dismissal under Puerto Rico
Law 80. See P.R. Laws Ann. tit. 29, 185a (1995) ("Every
employee in commerce . . . who is discharged from his
employment without good cause, shall be entitled to receive
from his employer, in addition to the salary he may have
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earned: (a) The salary corresponding to one month, as
indemnity; (b) An additional progressive indemnity equivalent
to one week for each year of service."). Further, in
addition to the same four causes of action under Puerto Rico
law asserted against Chavez, Rodriguez sued Occidental for
sex discrimination under Title VII.
We cannot, based on the jury form, determine which
of Rodriguez's claims against Chavez and Occidental
succeeded. The jury was asked only to answer yes or no as to
whether each defendant was "liable to plaintiff Sandra
Rodriguez." The jury could have properly decided to hold
Chavez and Occidental liable because they discriminated
against Rodriguez on the basis of her sex, or because they
retaliated against her for her complaints about Miranda's
behavior.
Sexual harassment is an unlawful form of sex
discrimination, and both Chavez and Occidental could be held
liable for sex harassment on either of two theories -- quid
pro quo or hostile work environment.
Under the quid pro quo theory, Rodriguez's
continued employment was conditioned on coerced sex, a
condition that was inherently linked to her gender. Puerto
Rico law, see P.R. Laws Ann. tit. 29, 155f, and other
circuits, interpreting Title VII, have said that employers
can be liable for a customer's unwanted sexual advances, if
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the employer ratifies or acquiesces in the customer's
demands. See Folkerson v. Circus Circus Enters., Inc., 107
F.3d 754, 756 (9th Cir. 1997). This is a case in which
Rodriguez's employer not only acquiesced in the customer's
demands, but explicitly told her to give in to those demands
and satisfy the customer. This conduct is clearly an example
of quid pro quo sexual harassment, as Rodriguez's employer
conditioned her future with the company on her responding to
the unwanted sexual demands of a customer.
Under the hostile work environment theory of sex
discrimination, the jury could have reasonably found that
Chavez and Occidental had established a working environment
hostile to women. The jury was instructed that this theory
of sex discrimination "involves forms of sexually-related
misconduct which are severe and pervasive and unreasonably
interfere with work performance or create a hostile,
intimidating or offensive working environment. It can
include demeaning comments or expectations of a certain
sexual behavior in the workplace." This environment would be
a product not only of Chavez's refusal to do anything about
Miranda's advances, but also of incidents such as the 1990
Christmas party.
Likewise, the success of a retaliation claim does
not require that the alleged wrongful conduct itself be
illegal. For her retaliation claim to succeed, Rodriguez
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merely needed to show that she "reasonably believed" that the
conduct of which she complained or threatened to complain
violated Title VII. See Wyatt v. City of Boston, 35 F.3d 13,
15 (1st Cir. 1994); Petitti v. New England Tel. & Tel. Co.,
909 F.2d 28, 33 (1st Cir. 1990); Drinkwater v. Union Carbide
Corp., 904 F.2d 853, 865 (3d Cir. 1990) (noting that a long
line of cases holds that a "plaintiff establishes a
retaliation claim if she shows that she had a reasonable
belief that the employer was engaged in an unlawful
employment practice and that the employer retaliated against
her for protesting that practice."). The jury may have found
that the close relationship between PREPA and Occidental made
it reasonable for Rodriguez to believe that Miranda's
unwanted advances constituted unlawful sexual harassment
about which she had a right to complain.
B. Peremptory Challenges
Defendants challenge the district court's
disallowance of two of their peremptory challenges. Because
this determination is fact-sensitive, we review it for clear
error. See Brewer v. Marshall, 119 F.3d 993, 1004-05 (1st
Cir. 1997); see also Purkett v. Elem, 514 U.S. 765, 767
(1995) (per curiam). Initial juror selection in this case
began with a panel of sixteen jurors containing nine men and
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seven women. The court then granted each side four
peremptory challenges, leaving eight jurors.
Plaintiff objected to the defendants' use of all
four of their peremptory challenges to exclude women from the
jury panel, arguing that these peremptory challenges were a
violation of the Equal Protection Clause under J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson
v. Kentucky, 476 U.S. 79 (1986) to gender-based peremptory
challenges in civil cases). The defendants explained their
challenges on gender-neutral grounds, but the district court
disallowed two of the peremptory challenges, stating that the
explanations were merely a pretext for unlawful
discrimination.
The district court noted, properly, that its
decision to disallow the two peremptory challenges was based
on the totality of the circumstances of the litigation. See
Hernandez v. New York, 500 U.S. 352, 364 (1991). Upon
examination of the judge's justification and the trial
record, we do not find his decision to disallow the
peremptory challenges to be clearly erroneous.
C. Evidentiary Rulings
We review a district court's evidentiary rulings
for abuse of discretion. See General Elec. Co. v. Joiner,
No. 96-188, 1997 WL 764563, at *3 (U.S. Dec. 15, 1997); A.W.
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Chesterton Co. v. Chesterton, 128 F.3d 1, 9 (1st Cir. 1997).
Errors in evidentiary rulings are harmless if it is highly
probable that the error did not affect the outcome of the
case. See Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 29-
30 (1st Cir. 1992).
1. Rulings under Rule 412
Defendants continually sought to make an issue of
plaintiff's sexual history. In the course of this
litigation, defendants attempted to paint the plaintiff as
sexually insatiable, as engaging in multiple affairs with
married men, as a lesbian, and as suffering from a sexually
transmitted disease.2 Defendants claimed that plaintiff had
an affair with a married man that caused her to become
distracted from work, and led to the lapses for which she was
fired.
Fed. R. Evid. 412 was designed to prevent misuse of
a complainant's sexual history in cases involving "alleged
sexual misconduct." In a civil case, the sole exception to
Rule 412's prohibition of evidence offered to prove "that any
alleged victim engaged in other sexual behavior" or "any
alleged victim's sexual predisposition" is that
evidence offered to prove the sexual behavior
or sexual predisposition of any alleged
victim is admissible if it is otherwise
2. During discovery, defendants requested that plaintiff
submit to an AIDS test, apparently to substantiate their
allegations of promiscuity. The request was denied.
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admissible under these rules and its
probative value substantially outweighs the
danger of harm to any victim and of unfair
prejudice to any party. Evidence of an
alleged victim's reputation is admissible
only if it has been placed in controversy by
the alleged victim.
Fed. R. Evid. 412(b)(2) (emphasis added). Rule 412 thus
reverses the usual approach of the Federal Rules of Evidence
on admissibility by requiring that the evidence's probative
value "substantially outweigh" its prejudicial effect.
Rule 412 mandates procedural safeguards for the
introduction of such evidence under the 412(b)(2) exception.
A party intending to offer such evidence must file a motion
specifically describing the evidence and its purpose at least
fourteen days before trial, serve the motion on all parties,
and notify the alleged victim. Before admitting the evidence
the court must conduct an in camera hearing to afford the
victim and parties a right to be heard. See Fed. R. Evid.
412(c).
The district court ruled that evidence concerning
plaintiff's moral character or promiscuity and the marital
status of her boyfriend was inadmissible under Rule 412. But
the court allowed defendants to introduce evidence directly
relevant to their theory that plaintiff's relationship
distracted her from work. The court also held that evidence
concerning plaintiff's allegedly flirtatious behavior toward
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Miranda was admissible to determine whether Miranda's
advances were in fact "unwanted."
These evidentiary rulings were well within the
district court's discretion. The court struck an acceptable
balance between the danger of undue prejudice and the need to
present the jury with relevant evidence, particularly in
light of Rule 412's special standard of admissibility.
2. Rulings under Rule 403
Nor is there any abuse of discretion in the
district court's other evidentiary rulings. Under Fed. R.
Evid. 402, all relevant evidence is admissible unless
otherwise provided by federal law. See Fed. R. Evid. 402.
Under Fed. R. Evid. 403, relevant evidence may be excluded if
its probative value is "substantially outweighed" by the
danger of prejudice or confusion. See Fed. R. Evid. 403.
Defendants challenge the exclusion of certain
telephone records, rebuttal evidence by some of plaintiff's
co-workers, and an answering machine tape. We agree with the
district court that the testimony and phone records would
have been, at best, cumulative. The district court conducted
lengthy proceedings over the admissibility of an answering
machine tape produced by Chavez that purportedly contained
several messages from Rodriguez to Chavez that could imply
that they had been intimate. The defendants argue that this
piece of evidence would have shown that "plaintiff treated
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Chavez affectionately and could not have been complaining of
sexual harassment." An FBI analysis of the voice on the tape
was inconclusive. The court ruled that the tape was
inadmissible under Fed. R. Evid. 403, and we agree that this
dubious evidence had minimal probative value, and had great
potential to confuse the jury.
Defendants complain of a "double standard" because
the district court allowed information introduced by
plaintiff while excluding evidence introduced by defendant.
The court allowed evidence concerning the close ties between
Occidental and PREPA, including evidence of political
donations, Occidental's tax status, the dancing show at the
1990 Christmas party, and a letter regarding Occidental's
sales volume. In fact, as to the excluded evidence, Fed. R.
Evid. 412 required the district court to apply a stricter
standard with regard to admission of evidence of plaintiff's
sexual history than to the evidence admitted under the more
liberal standard of Fed. R. Evid. 402 & 403. This evidence
was directly relevant to the theory of Rodriguez's case --
that Chavez and Occidental were willing to fire her when she
complained about Miranda in order to maintain their close
relationship with Miranda and PREPA.
Having examined each of the district court's
evidentiary rulings, we find none that represents an abuse of
its discretion. Even if the court's exclusions were error,
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none of the excluded evidence would have had an impact on the
outcome of the trial, as it would have at best been
duplicative of evidence that was admitted.
D. Claims of Judicial Bias
Occidental and Chavez argue that the district court
judge's admonitions to defense counsel evince bias, which
tainted the jury verdict. They claim that this bias was
further demonstrated by the judge's rulings on defense
counsel's peremptory challenges, exclusion of evidence, and
his sanctioning defense counsel for violating an evidentiary
ruling under Fed. R. Evid. 412. The contested rulings are
discussed elsewhere, and they were entirely proper. Most of
the comments appellants complain of were made outside the
hearing of the jury.
At the very latest, this claim should have been
raised in defendants' Rule 50 motion before the district
court. It is therefore waived. See In re Abijoe Realty
Corp., 943 F.2d 121, 126-27 (1st Cir. 1991). Claims of
judicial partiality must be raised at the earliest moment
that a litigant becomes cognizant of the purported bias, and
certainly not for the first time on appeal. See id.; cf. In
re Marisol Martinez-Catala, 129 F.3d 213, 219 (1st Cir. 1997)
(explaining procedures for judicial disqualification and
noting that "disqualification is almost never required where
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the judge's opinions are based on the proceedings"). A party
may not simply wait to see what outcome he or she receives in
a trial before an allegedly biased judge. See In re United
Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960).
To allay any suspicions of judicial taint, however,
we note that, having read the entire trial record, we find
none. The isolated, occasional comments cited by appellants
fall far short of prejudice and do not come close to
supporting a contention that defendants were deprived of a
fair trial. See United States v. Devin, 918 F.2d 280, 294-95
(1st Cir. 1990); Aggarwal v. Ponce Sch. of Med., 837 F.2d 17,
22 (1st Cir. 1988). The judge's scattered critical comments
were largely made out of the jury's hearing, and usually were
in direct response to defense counsel's interruptions and
unsuitable conduct. See United States v. Polito, 856 F.2d
414, 418 (1st Cir. 1988) ("Charges of partiality should be
judged not on an isolated comment or two, but on the record
as a whole."). The entirety of the record reveals that the
judge evinced not bias, but rather a desire to conduct the
trial in as civil a manner as possible. That desire was
evidently not shared by counsel for the defendants, and
rebukes for this lack of civility were entirely warranted.
IV. The Sanction Order Against Counsel
Attorney Inserni appeals the district court's
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decision to sanction him for violating a court order
prohibiting mention of matters such as the marital status of
plaintiff's boyfriend without first clearing such evidence
with the court to allow it to make a final Rule 412 ruling.
During plaintiff's testimony, the court ruled that the
marital status of plaintiff's boyfriend was not admissible,
and admonished counsel to approach the bench before asking
any question that might raise concerns under Rule 412.
Attorney Inserni subsequently asked plaintiff's psychologist,
in front of the jury, "Did [the plaintiff] tell you during
your interviews or during your clinical work on her case, did
she ever mention to you that she had multiple relationships
with married men?"3 The district court properly noted that
this question violated its ruling, rebuked counsel after
first dismissing the jury, and fined him $500. The court
later instructed the jury that counsel had violated a court
order and jurors were to disregard the question. This
response was fully justified, and we find no error. See
Polito, 856 F.2d at 418. Inserni shall pay the costs of his
appeal to plaintiff.
V. Plaintiff's Appeal
Rodriguez appeals the district court's reduction of
3. We add, as the district court understood, that defense
counsel knew from her deposition that the psychologist would
answer "no" to that question.
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her attorney's fees and costs award from approximately
$440,000 to $150,223.26. As noted above, the district court
justified this reduction on several grounds: duplication of
effort by plaintiff's attorneys, the use of attorneys for
"paralegal work," and the plaintiff's lack of success. The
court uniformly cut the attorneys' requested hourly rates by
fifteen dollars, except for Attorney Berkan's out-of-court
rate, which it cut by ten dollars. The court reduced the fee
request to $346,211.53, and then reduced this amount by sixty
percent because of the plaintiff's "lack of success."
Starting with the "lodestar" calculation of the
hours worked by each attorney multiplied by the attorney's
hourly rate, the court deducted time that it determined was
duplicative or unnecessary. The court deducted 97 hours of
attorney time because it viewed the time spent on indexing
depositions as excessive, and agreed with defendants that the
work was a "paralegal task." The court noted a number of
entries on plaintiff's counsels' time sheets that suggested
duplicative efforts. The court calculated that these
duplicative efforts totaled 120 hours, and deducted this
amount. Thirteen more hours were deducted for excessive time
in preparing the attorney's fees petition.
The court determined that it was excessive for
three attorneys to be present at trial, and adjusted the
hours so that the time compensated amounted to that of only
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two attorneys at any given time. The court uniformly reduced
the requested hourly rates of Rodriguez's attorneys by
fifteen dollars, except for Attorney Berkan's out-of-court
hourly rate, which it reduced by ten dollars. Because it
determined that the plaintiff enjoyed only limited success in
each of her theories of recovery, the court reduced the
lodestar figure by sixty percent of the total amount.
Fee awards are reviewed deferentially, and will be
disturbed only for mistake of law or abuse of discretion.
See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d
331, 336 (1st Cir. 1997); Lipsett v. Blanco, 975 F.2d 934,
936 (1st Cir. 1992) (noting that "because determination of
the extent of a reasonable fee necessarily involves a series
of judgment calls, an appellate court is far more likely to
defer to the trial court in reviewing fee computations than
in many other situations."). Even under this deferential
standard, however, we conclude that the district court's
attorney's fees orders must be vacated.
A. Lack of Success
The district court reduced the fee award by sixty
percent for "lack of success" because Rodriguez did not
prevail on all of her claims and she did not receive the full
amount of damages she sought. According to the district
court, the plaintiff "ultimately succeeded on her claim of
retaliation" and while the "unsuccessful claim, the sexual
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harassment claim, was linked to the successful claim of
retaliation, this fact alone does not preclude any reduction
based on the failure to establish sexual harassment."
The district court did not explain how it had come
to the conclusion that the jury had decided Rodriguez's
claims in this way. When a fee award is reduced
substantially, a more detailed explanation is in order. See
Brewster v. Dukakis, 3 F.3d 488, 493 (1st Cir. 1993) ("As a
general rule, a fee-awarding court that makes a substantial
reduction in either documented time or authenticated rates
should offer reasonably explicit findings, for the court, in
such circumstances, 'has a burden to spell out the whys and
wherefores.'") (quoting United States v. Metropolitan Dist.
Comm'n, 847 F.2d 12, 18 (1st Cir. 1988)). As our discussion
in part III.A above demonstrates, the jury could have found
that Rodriguez's sex harassment claims against Chavez and
Occidental succeeded, on either a quid pro quo or hostile
environment theory.
The district court may have made the same mistake
that the defendants have made in arguing that, because
Miranda was not found liable, no "sex harassment" occurred.
As noted, this conclusion is not mandated by the jury's
general verdict. Neither did Rodriguez's sexual harassment
claims fail when the district court dismissed her claims
under Title VII against Chavez, as she continued to pursue
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sex discrimination claims under Puerto Rico law. Indeed, it
appears Rodriguez has "prevailed up and down the line" on her
claims against Chavez and Occidental, in which case "a
claims-based, results-obtained fee reduction is wholly
inappropriate." Coutin, 124 F.3d at 340.
The district court's reduction of the lodestar
figure by sixty percent of the total because of the
plaintiff's "lack of success" was error. Three measures of
"success" pertain to civil rights lawsuits such as this one:
"plaintiff's success claim by claim, . . . the relief
actually achieved, . . . [and] the societal importance of the
right which has been vindicated." Coutin, 124 F.3d at 338.
The plaintiff was clearly successful under the latter two
definitions.
Rodriguez received a substantial monetary award
constituting full compensation for her injuries, as well as
punitive damages. The jury awarded Rodriguez all three types
of monetary compensation provided for in the verdict form:
compensation for back pay and/or front pay and other related
job benefits; punitive damages; and compensatory damages for
her emotional and/or mental suffering.
Congress has encouraged private suits to counter
sex discrimination through the award of attorney's fees to
successful litigants. See City of Riverside v. Rivera, 477
U.S. 561, 574-75 (1986) (plurality opinion); Coutin, 124 F.3d
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at 337. In a civil rights lawsuit, "[t]he result is what
matters," Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), and
in this case plaintiff apparently vindicated her Title VII
claim and received substantial damages. See also Aubin v.
Fudala, 782 F.2d 287, 291 (1st Cir. 1986) ("[A] plaintiff
should receive significant fees when he has won a partial
victory on a civil rights claim while receiving substantially
the relief he there sought . . . .") (emphasis in original).
Both the plaintiff's employer company and her boss were found
liable for the harms she suffered.
We do not view plaintiff's claims regarding
Miranda's unwanted sexual advances as "unrelated" to the
claims upon which she prevailed such that attorney's fees
should not be awarded for pursuing these claims. See
Hensley, 461 U.S. at 434-35. Indeed, the close relationship
between Occidental and PREPA, and between Chavez and Miranda,
was a foundational element of her claims against Chavez and
Occidental, and would have needed to be developed even if
plaintiff had not sued Miranda or PREPA. It was this close
relationship among the defendants that made credible
plaintiff's contentions that her boss asked her to respond to
Miranda's sexual advances because Miranda and PREPA were
valued customers, and that he fired her when she refused.
See id. at 440 ("Where a lawsuit consists of related claims,
a plaintiff who has won substantial relief should not have
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his attorney's fee reduced simply because the district court
did not adopt each contention raised."); Scarfo v. Cabletron
Sys., Inc., 54 F.3d 931, 962-66 (1st Cir. 1995). Rodriguez's
unsuccessful claims were based both on a common core of facts
and on related legal theories. See Hensley, 461 U.S. at 435.
While it is true that plaintiff's fee request was
more than twice the damages awarded, the Supreme Court has
held that the size of the verdict does not bar the recovery
of large attorney's fees awards. See City of Riverside, 477
U.S. at 574-75; see also Coutin, 124 F.3d at 338 (discrepancy
between award requested and received does not "amount to more
than one element in the constellation of factors that the
court considers when determining the quality of results
obtained"); Foley v. City of Lowell, 948 F.2d 10, 19 (1st
Cir. 1991). Thus, because the district court failed to
articulate its reasons for finding "lack of success," and no
sound reasons are apparent in the record, we must vacate its
order and remand for reconsideration.
B. Other Fee Reductions
On remand, the district court should also revisit
the reductions for duplicative efforts and paralegal work.
Of course, ordinarily we defer to the court's judgment on
these matters, because staffing issues are usually "best
resolved by the trial court's application of its intimate,
first-hand knowledge of a particular case's nuances and
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idiosyncracies." Lipsett, 975 F.2d at 939. In setting fees,
the district court has "broad discretion to determine 'how
much was done, who did it, and how effectively the result was
accomplished.'" Id. (quoting Wagenmann v. Adams, 829 F.2d
196, 224 (1st Cir. 1987)). In the "gray areas," such as
deciding whether a given task is properly entrusted to a
paralegal, "the district court's judgment carries the
greatest weight." Id. at 940. Clerical tasks ought not to
be billed at lawyer's rates, even if a lawyer performs them.
See id.
Time spent by two attorneys on the same general
task is not, however, per se duplicative. Careful
preparation often requires collaboration and rehearsal, and
the court should not reward defendants for their vehement
"Stalingrad defense," a tactic they have continued to employ
on appeal. Id. at 939. Indeed, because a litigant's
staffing needs and preparation time will often "vary in
direct proportion to the ferocity of her adversaries'
handling of the case, this factor weighs heavily in the
balance." Id. In this case, the record reveals that the
defense was indeed extreme. As we find that the district
court's unexplained reduction for lack of success
independently requires a remand, we consider the entire issue
open for reconsideration and need not decide whether the
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other alleged errors in calculating attorney's fees would
alone prompt reversal.
VI. Conclusion
To conclude, we find any residuum of claimed errors
to be without merit and unworthy of extended discussion. The
jury verdict is affirmed. The award of attorney's fees is
vacated, and we remand this case for recalculation of the
attorney's fees award in accordance with this opinion. Costs
are awarded to Rodriguez.
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