Baez-Viera et al v. Cooperativa Abraham Rosa et al

Filing 180

OPINION AND ORDER GRANTING IN PART 164 MOTION to Alter Judgment or Amend Judgment; NOTING 159 MOTION Submitting Defendant's Memorandum On Back Pay. Signed by Judge Jay A Garcia-Gregory on 9/28/2012.(RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BAEZ-VIERA, et al.,
Plaintiffs
v.

CIVIL NO.

08-2045 (JAG)

COOPERATIVA ABRAHAM ROSA, et
al,
Defendants.

OPINION & ORDER
Garcia-Gregory, D.J.
The

jury

in

this

case

found

Defendants

liable

for

violations of the Pregnancy Discrimination Act of Title VII,
Puerto

Rico

Plaintiffs

Law
had

69,
not

and

Law

proved

80.

their

Conversely,
case

with

the

jury

respect

to

found
their

claims brought pursuant to the Age Discrimination in Employment
Act and Puerto Rico Law 100.
The

jury

awarded

$32,000

in

compensatory

damages

to

Plaintiffs under Law 69. 1 That amount was doubled to $64,000 as
mandated by that statute. See Campos-Orrego v. Rivera, 175 F.3d
89, 96 (1st Cir. 2001). This was the only concrete amount in
damages awarded by the jury to Plaintiffs. Therefore, the Court

1

The parties themselves supplied the verdict form that the jury
used. (Docket No. 142). That form only asked the jury to submit
concrete damages as to Puerto Rico Laws 69 and 100.

CIVIL NO. 08-2045 (JAG)

2

will construe this amount as strictly limited to compensatory
damages under state law. See Kerr-Selgas v. American Airlines,
Inc., 69 F.3d 1205 (1st Cir. 1995)(where jury did not award
compensatory damages on federal claims, district court correctly
concluded that all compensatory damages represented compensation
for injuries sustained in connection with state-law claims).
For Defendants’ violations of Title VII, the jury awarded
Plaintiffs “with the amount of money she would have earned as a
teller for the Cooperativa Ahorro y Credito Abraham Rosa had she
not been terminated under the PDA of Title VII.” (Docket No. 156
at p. 2). Finally, the jury provided only a liability verdict
against Defendants under Law 80.
Two days after the jury returned its verdict, the parties
requested

an

extension

of

time

to

“reach

an

agreement

with

regard to the portions of severance pay under Local Law 80 and
the

back

parties

pay.”
informed

(Docket
the

No.

Court

154).
that

On
they

October
were

11,

unable

2011,
to

the

reach

consensus on those issues. Instead, they asked the Court to
enter Judgment “without the actual numbers,” and requested an
extension

of

time

to

file

memoranda

on

their

respective

positions regarding severance and back pay. The Court granted
the parties’ request, and entered Judgment.

CIVIL NO. 08-2045 (JAG)

3

The parties then filed their respective memoranda. (Docket
Nos.

159,

164,

170).

The

Court

will

now

assess

whether

Plaintiffs are entitled to any additional amount in damages.
ANALYSIS
I.

Severance pursuant to Law 80
As mentioned above, the jury found that Defendants did not

have

just

cause

to

dismiss

Plaintiffs

under

Puerto

Rico’s

wrongful termination statute, Law 80. Plaintiffs seek to cash in
on

that

determination,

asking

the

Court

for

$12,749.76

in

severance pay as provided by that statute. Defendants object to
this request, arguing that a grant of severance pay would be
redundant because the jury already granted compensatory damages
under Law 69.
Courts have been consistent in finding that Puerto Rico
Laws

69,

80

and

100

are

all

compensatory,

or

remedial,

in

nature. See Rodriguez-Torres v. Caribbean Forms Manufacturer,
Inc., 399 F.3d 52, 67 (1st Cir. 2005)(finding that the double
damages

provision

of

Puerto

Rico

Laws

69

and

100

are

“most

likely compensatory”); Beauchamp v. Holsum Bakers of P.R., 116
D.P.R. 522 (1985) (holding that Law 80 is remedial in nature).
At any rate, it is evident that these statutes share the same

CIVIL NO. 08-2045 (JAG)
goal:

to

provide

a

4

claimant

with

compensation

for

injuries

suffered as a consequence of the defendant’s acts.
“‘[T]he

law

abhors

duplicative

recoveries;’

thus

double

awards for the same injury are impermissible.” Bogan v. City of
Boston, 489 F.3d 417, 425 (1st Cir. 2007)(citing Dopp v. HTP
Corp.,

947

F.2d

506,

517

(1st

Cir.

1991)).

Simply

put,

a

“plaintiff who is injured by reason of a defendant's behavior
is, for the most part, entitled to be made whole - not to be
enriched.” Dopp, 947 F.2d at 517. Because awards under Laws 80
and 69 are intended to redress the same injury, they cannot be
given in tandem.
Here, the jury effectively awarded Plaintiffs $64,000 in
compensatory damages for their claim under Law 69. Because the
jury

already

indemnified

Plaintiffs

for

Mrs.

Baez’s

illegal

termination through Law 69, additional compensation through Law
80 in the form of severance pay is not available. See e.g.
Selgas v. American Airlines, Inc., 858 F.Supp. 316, 326 (D.P.R.
1994)(striking

an

award

under

Puerto

Rico

Law

80

because

Plaintiffs were granted a larger amount in damages under Law
69),

rev’d

on

other

grounds,

69

F.3d

1205

(1st

Cir.

1995).

Accordingly, Plaintiffs’ request for severance pay under Law 80
is hereby DENIED.

CIVIL NO. 08-2045 (JAG)
II.

5

Equitable Remedies under Title VII

Congress afforded broad discretion to the district courts
in fashioning just remedies under Title VII:
If
the
court
finds
that
the
respondent
has
intentionally engaged in … an unlawful employment
practice charged in the complaint, the court may
enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action
as may be appropriate, which may include, but is not
limited to, reinstatement or hiring of employees, with
or without back pay … or any other equitable relief as
the court deems appropriate.’ 42 U.S.C. s 2000e-5(g)
(1970 ed., Supp. III) (emphasis added).
The jury here returned a favorable verdict to Plaintiffs on
their

Title

VII

claims.

Accordingly,

the

Court

will

examine

whether Plaintiffs are entitled to any equitable remedies under
Title VII.
A. Back Pay
The jury awarded Plaintiffs with “the amount of money she
would

have

earned

as

a

teller

for

the

Cooperativa

Ahorro

y

Credito Abraham Rosa had she not been terminated under the PDA
of Title VII.” (Docket No. 156 at p. 2).2 Given that the jury did

2

Defendants argue that this means the jury awarded Plaintiffs
nothing but back pay under Title VII. However, after the return
of a favorable verdict under Title VII to Plaintiff, the
granting of equitable relief lies in the discretion of the
Court. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).
The jury verdict here moves the Court to grant Plaintiff some

CIVIL NO. 08-2045 (JAG)

6

not specify -and was not asked to provide- a specific number,
the

Court

must

computation

is

now

determine

complicated

by

the

the

correct

fact

that

amount.
Mrs.

Baez

This
held

several interim jobs after her termination from the Cooperativa
Abraham Rosa but before the entry of judgment in this case.
First,

Mrs.

Baez

worked

as

a

teller

in

the

Cooperativa

de

Guaynabo from August 2007 until her involuntary termination in
September 2010. 3 (Docket No. 164-1, ¶ 5-6). Next, she started
working

for

the

Burlington

Coat

Factory

in

August

of

2011.

Judgment in this case was entered on October 12, 2011.
The parties agree that back pay is warranted for the period
starting on June 8, 2007, corresponding with her termination at
the Cooperativa Abraham Rosa, and ending on September 2010, the
date

she

was

fired

from

the

Cooperativa

de

Guaynabo.

This

amount, according to defendants, totals $23,939.83 – exclusive

amount in back pay – but it does not preclude the Court from
granting other equitable relief available under Title VII (such
as prejudgment interest or front pay) on its own accord. 42
U.S.C. s 2000e-5(g)(“any other equitable relief as the court
deems appropriate” may be granted).
3
Mrs. Baez testified at trial that she committed a clerical
error while she was working at the Cooperativa de Guaynabo.
Though the parties dispute whether her mistake was willful or
not, it is undisputed that Mrs. Baez’s mistake was a violation
of company rules, and one that could entail termination. For
that reason, she was fired from her job.

CIVIL NO. 08-2045 (JAG)

7

of fringe benefits.4 (Docket No. 159-1, p.2; Docket No. 164-3, p.
1-2).
After this period, however, the parties’ positions on back
pay diverge. Plaintiffs posit that defendants should be held
liable for back pay until the date of judgment in this case,
with adjustments made to account for Mrs. Baez’s earnings in her
two interim jobs. In turn, defendants contend that plaintiffs
are not entitled to any amount in back pay after Mrs. Baez was
fired from the Cooperativa de Guaynabo. To hold otherwise, argue
defendants,
defendants)

would
for

be

Mrs.

to

Baez’s

reward

plaintiffs

negligence.

(and

Therefore,

the

punish
Court

must determine the additional back pay due to Plaintiffs for the
period of time starting on September 11, 2010 and ending on
October 12, 2012 – the period of time corresponding to the dates
of Mrs. Baez’s termination at the Cooperativa de Guaynabo and
the entry of judgment in this case, respectively.
“An award of back pay compensates plaintiffs for lost wages
and benefits between the time of the discharge and the trial
court judgment.” Johnson v. Spencer Press of Maine, Inc., 364
F.3d 368, 379 (1st Cir. 2004). This remedy is a “presumptive
entitlement

of

a

plaintiff

who

successfully

prosecutes

an

employment discrimination case.” Id. Given its equitable nature,

4

The Court will discuss back pay as to benefits below.

CIVIL NO. 08-2045 (JAG)
the

question

of

whether

8
back

pay

is

warranted

lies

in

the

discretion of the court. Albemarle Paper Co. v. Moody, 422 U.S.
405,

421

(1975).

Even

then,

courts

must

be

cautious

in

exercising this discretion. “[B]ack pay should be denied only
for reasons which, if applied generally, would not frustrate the
central

statutory

purposes

of

[1]

eradicating

discrimination

throughout the economy and [2] making persons whole for injuries
suffered through past discrimination.” Id.
“During the back pay period, individuals have an obligation
to

exercise

‘reasonable

diligence’

in

finding

alternative

suitable employment.” Johnson, 364 F.3d at 379 (citing 42 U.S.C.
§ 2000e-5(g)(1)). Back pay awards are therefore offset by the
amount that could have been earned with reasonable diligence
after the discharge. Quinones Candelario v. Postmaster Gen. of
United

States,

906

F.2d

798,

799-802

(1st

Cir.

1990).

This

includes any amounts that were not earned because the employee
was fired from the interim job due to misconduct. Id. (citing
Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1277 (4th
Cir. 1985)). But contrary to defendant’s position, the First
Circuit has squarely held that it is “error to [completely] cut
off, as a matter of law, the ability of a successful Title VII
plaintiff to receive further back pay or front pay once he is
fired for misconduct from the position he takes after leaving

CIVIL NO. 08-2045 (JAG)

9

the discriminatory employer.”

Johnson, 364 F.3d at 381. Thus,

it is clear that Plaintiffs are entitled to some amount in back
pay

after

Mrs.

Baez

was

terminated

from

the

how

additional

Cooperativa

de

Guaynabo.
Determining

exactly

much

back

pay

is

warranted requires a more nuanced analysis. The Johnson court,
in particular, made note of two unresolved questions in this
Circuit that are pertinent to our analysis, but which have not
been discussed by the parties in their briefs. The first is
“whether back pay should be withheld for the period during which
the employee is trying to find another job, or [whether it]
should remain at the level it was at prior to the firing.”

5

Johnson, 364 F.3d at 381 n.11; see also Id. at n.15. This is
relevant here because Mrs. Baez spent nine months unemployed
after being fired from the Cooperativa de Guaynabo and before
finding a job at the Burlington Coat Factory. (Docket No. 164-3,
p.2). The second occurs when the employee holds two or more

5

On this point, the Fourth and Fifth Circuits have held that
back pay is not available for “periods of unemployment following
justified discharge,” reasoning that “[d]uring such a period the
claimant has excluded himself from the employment market.”
Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1280 (4th
Cir. 1985); see Patterson v. P.H.P. Healthcare Corp., 90 F.3d
927, 935 (5th Cir. 1996). The Eighth Circuit took a more
moderate stance, holding that “the amount the employee would
have earned had he not quit is to be offset for the remainder of
the back pay period.” See NLRB v. Hopcroft Art & Stained Glass
Works, Inc., 692 F.2d 63, 65 (8th Cir. 1982).

CIVIL NO. 08-2045 (JAG)

10

interim jobs after being fired, and the salary from the first
job is greater than the second. The question is: what is the
correct back pay award for the period in which the employee is
working at the second interim job? Johnson, 364 F.3d at 381
n.16. This is also relevant here, given that Mrs. Baez’ salary
at the Cooperativa de Guaynabo was higher than her salary at the
Burlington Coat Factory. Even so, the determination this Court
must make is ultimately grounded in equity. And the “hallmark of
equity

is

the

ability

to

assess

all

relevant

facts

and

circumstances and tailor appropriate relief on a case by case
basis.”   Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321
(1st Cir. 1989)(en banc).
Two competing considerations dominate this analysis. On one
side

of

the

equitable

scale

lies,

in

general

terms,

the

presumptive entitlement of back pay to a successful Title VII
plaintiff. The jury found that the Cooperativa had illegally
terminated Mrs. Baez on the basis of pregnancy discrimination.
This makes the Cooperativa Abraham Rosa chiefly responsible for
all wage losses that Mrs. Baez suffered as a result of her
termination.

See

Albemarle

Paper

Co.,

422

U.S.

405,

419-21

(1975). The second is specific to this case: Mrs. Baez was fired
from the Cooperativa de Guaynabo because she had committed a
clerical

mistake,

a

blunder

she

had

made

before

at

the

CIVIL NO. 08-2045 (JAG)

11

Cooperativa Abraham Rosa. While the parties may disagree whether
Mrs. Baez’s mistake was willful or not, the fact remains that
Mrs.

Baez’s

termination

–and

accordingly

her

reduction

in

interim pay- was solely due to her own negligence. Therefore,
the Court believes it would be unfair to require the Cooperativa
to

completely

cover

for

the

period

in

which

Mrs.

Baez

was

unemployed.
The Court will harmonize these countervailing factors by
taking the middle road: for the rest of the back pay period
after Mrs. Baez’s termination from the Cooperativa de Guaynabo,
back pay shall remain at the level it was at the moment of her
termination. 6 For that period, back pay is therefore awarded to
Plaintiffs

in

the

Plaintiffs

to

maintain

pay,

while

amount

making

the

of

their

$9302.04.

7

presumptive

Cooperativa’s

This

solution

entitlement

liability

for

allows

to

back

back

pay

6

The Court concedes that this calculus oversimplifies the issue
because it does not take into account Mrs. Baez’s employment at
the Burlington Coat Factory. However, she was employed at
Burlington for less than three months before judgment was
entered in this case. The difference in back pay with this
factored in would be minute.
7
At the time of her termination at the Cooperativa de Guaynabo,
Mrs. Baez was making approximately $312.30 per week ($11,554.92
over 37 weeks). (See Docket No. 164-3). Her highest weekly
salary at the Cooperativa Abraham Rosa was $398.43. (Id.).
Therefore, her weekly loss for the remainder of the back pay
period was $86.13 ($398.43-$312.30). This amount, multiplied by
the number of weeks between her termination and the entry of
judgment in this case (108) gives us the desired result:
$9302.04.

CIVIL NO. 08-2045 (JAG)

12

independent of Mrs. Baez’s clerical mistake at the Cooperativa
de

Guaynabo.

8

Furthermore,

this

result

would

not

injure

the

cardinal principles that inform the award of equitable relief
under Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405,
421

(1975)(“eradicating

and

making

persons

discrimination

whole

for

injuries

throughout
suffered

the

economy

through

past

discrimination”). A stiff penalty has still been imposed on the
Cooperativa, and considering the totality of the damages, the
Court is certain that Plaintiffs have been made whole.
A

final

matter

must

be

addressed

before

moving

on.

Plaintiffs request compensation in the form of lost benefits and
prejudgment interest. With regard to benefits, Plaintiffs argue
that the Cooperativa Abraham Rosa should be held accountable for
the totality of the fringe benefits Mrs. Baez stopped receiving
when she was fired. According to the Defendant, this position is
untenable

because

Mrs.

Baez

also

received

benefits

at

the

Cooperativa de Guaynabo. Unfortunately for the Cooperativa, and
though common sense would indicate otherwise, nothing on the

8

Incidentally, this result is in practice indistinguishable from
the rule established by the Eighth Circuit in NLRB v. Hopcroft
Art & Stained Glass Works, Inc., 692 F.2d 63, 65 (8th Cir. 1982)
(“[T]he amount the employee would have earned had he not quit is
to be offset for the remainder of the back pay period”). This is
reassuring because the First Circuit, for various reasons,
seemed to prefer this result over the rule followed by the
Fourth and Fifth Circuits. See Footnote 5, supra; see also
Johnson, 364 F.3d at 383 n.15.

CIVIL NO. 08-2045 (JAG)

13

record shows that Mrs. Baez ever received fringe benefits at the
Cooperativa de Guaynabo. Thus, the Court will award Plaintiffs
with back pay for lost benefits in the amount of $19,321.86.
(See Docket No. 164-3).
The Cooperativa’s argument regarding prejudgment interest
is similarly weak. Given our decision below regarding front pay,
the Court will exercise its discretion and award Plaintiffs with
prejudgment interest at the federal post-judgment rate contained
in 28 U.S.C. § 1961. See Earnhardt v. Puerto Rico, 744 F.2d 1, 3
(1st Cir. 1984) (in a Title VII case the question of “whether
[prejudgment interest is] necessary to make the plaintiff whole
is within the discretion of the district court”); see e.g. Orr
v.

Mukasey,

judgment

631

interest

F.Supp.2d
at

the

138

federal

(D.P.R.

2009)(awarding

post-judgment

interest

prerate

applicable on week prior to entry of judgment). As of October
12, 2011, that rate was set at 0.24% compounded annually.9

9

The Court takes judicial notice of the federal post-judgment
interest rate applicable on October 12, 2011. This is available
at
http://www.federalreserve.gov/releases/h15/20111011/.
See
http://www.uscourts.gov/FormsAndFees/Fees/PostJudgementInterestR
ates.aspx; see also Notice from the Clerk No. 01-04, Interest
Rates on Judgments in the Federal Courts, available at
http://www.prd.uscourts.gov/CourtWeb/a_interests.aspx.

CIVIL NO. 08-2045 (JAG)

14

In total, then, back pay is hereby awarded in the amount of
$52,563.73.10
Front Pay
Front pay is “money awarded for lost compensation during
the period between judgment and reinstatement or in lieu of
reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532
U.S. 843, 846 (2001). An award of front pay lies within the
sound discretion of the court, and should not be awarded unless
reinstatement is impracticable or impossible. Wildman v. Lerner
Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985).
To be brief, the reinstatement of Mrs. Baez to her original
job at the Cooperativa is unfeasible. As Plaintiffs underscore
in their brief, “the hostilities that [Mrs. Baez] suffered were
imparted

by

Mr.

Luis

Lopez,

the

Executive

President

of

the

Cooperativa.” (Docket No. 164, ¶ 21). According to Plaintiffs,
Mr. Lopez is still the Cooperativa’s executive president. The
Court will not reinstate Mrs. Baez into a potentially charged
and hostile atmosphere at the Cooperativa.
On that basis, Plaintiffs ask the Court to impose ten years
in front pay. The Court finds that, considering this case in its
entirety,

any

amount

of

front

pay

is

excessive

and

overly

10

The Court reaches this number by performing the following
sum: $23,939.83 + $9302.04 + $19,321.86.

CIVIL NO. 08-2045 (JAG)

15

speculative. On one hand, ten years of front pay is wishful
thinking, particularly where Mrs. Baez lasted less than three
performing the same job at the Cooperativa de Guaynabo before
she was fired on account of her own negligence. On the other,
Plaintiffs

are

already

entitled

to

a

substantial

amount

in

compensation through the doubling provision of Law 69, back pay,
and prejudgment interest on the entire award. See Wildman v.
Lerner

Stores

Corp.,

771

F.2d

605,

616

(1st

Cir.

1985)(a

substantial award rendered on other grounds may make front pay
inappropriate or excessive); see also Walther v. Lone Star Gas
Co.,

952

F.2d

119,

127

(5th

Cir.

1992)

and

Tennes

v.

Massachusetts Dep't of Revenue, 944 F.2d 372, 381 (7th Cir.
1991).

Finally,

the

Court

considers

that

this

amount

has

adequately made Plaintiffs whole. Thus, no more is needed.
CONCLUSION
For

the

Plaintiffs

are

$52,563.73

in

reasons

stated

entitled
back

pay

to

above,

the

$64,000.00

under

Title

Court

under
VII.

finds

Law

69

Accounting

that
plus
for

prejudgment interest at a rate of 0.24% per year for a period of
4.344 years, 11 the total amount due to Plaintiffs is $118,339.83.
The Judgment shall be amended to reflect this amount.
IT IS SO ORDERED.

11

 From June 8, 2007 to October 12, 2011. 

CIVIL NO. 08-2045 (JAG)

16

In San Juan, Puerto Rico, this 28th day of September, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge