Hernandez-Miranda v. Empresas Diaz Masso, Inc. ( 2011 )

  •           United States Court of Appeals
                         For the First Circuit
    No. 10-1639
                       EDNA M. HERNÁNDEZ-MIRANDA,
                          Plaintiff, Appellant,
                       EMPRESAS DÍAZ MASSÓ, INC.,
                          Defendant, Appellee.
                     FOR THE DISTRICT OF PUERTO RICO
             [Hon. Francisco A. Besosa, U.S. District Judge]
                           Lynch, Chief Judge,
                  Torruella and Siler,* Circuit Judges.
         Francisco M. López-Romo for appellant.
         Anne Noel Occhialino, Attorney, with whom P. David Lopez,
    General Counsel, Carolyn L. Wheeler, Acting Associate General
    Counsel, and Lorraine C. Davis, Assistant General Counsel, were on
    brief, for the Equal Employment Opportunity Commission, amicus
         Miguel Simonet Sierra for appellee.
                              June 29, 2011
              Of the Sixth Circuit, sitting by designation.
              LYNCH, Chief Judge.      This appeal raises questions of
    first impression for this circuit as to the proper interpretation
    of the caps on compensatory and punitive damages under 42 U.S.C.
    § 1981a(b)(3) in a Title VII employment discrimination action.
              The Civil Rights Act of 1991, Pub. L. No. 102-166,
    authorized the recovery of previously unavailable types of damages
    in Title VII actions involving intentional discrimination. Pub. L.
    No. 102-166, § 102; 42 U.S.C. § 1981a(a)(1), (b). These additional
    types of damages, which can be awarded by verdict once a violation
    of Title VII has been established, were made available subject to
    the proviso that they be capped.       The caps range from $50,000 to
    $300,000, and turn on how many employees a defendant "has . . . in
    each of 20 or more calendar weeks in the current or preceding
    calendar year."   42 U.S.C. § 1981a(b)(3).      The question presented
    on appeal is whether the "current" calendar year refers to the
    calendar year(s) in which the discrimination occurred or the
    calendar year in which the damage award is made.
              A jury awarded the plaintiff, Edna Hernández-Miranda,
    $300,000 in damages in this Title VII suit alleging intentional
    discrimination by her former employer, Empresas Díaz Massó (DM).
    Hernández-Miranda   testified   that   during   her   employment   as   a
    construction worker, she was forced to perform oral sex on a
    supervisor multiple times and was subjected to extreme, continuing
    sexual abuse by coworkers and supervisors.      She testified that her
    job with DM was her sole means to support herself and her children,
    and that as a result of the mistreatment she sought psychiatric
    help.    Hernández-Miranda testified as well that DM ignored her
    repeated complaints of sexual harassment.
                 The district court reduced the jury award to $50,000
    under § 1981a(b)(3)(A), using the year of the award to measure the
    number of DM's employees and thereby determine the size of the
    applicable statutory cap.        Miranda v. Empresas Díaz Massó, Inc.,
    699 F. Supp. 2d 413
    , 438 (D.P.R. 2010).        Hernández-Miranda appeals
    this reduction with amicus support from the Equal Employment
    Opportunity Commission (EEOC), and we reverse.            We interpret the
    statutory phrase "current" calendar year in § 1981a(b)(3) to refer
    to the time period of the discrimination.          Because DM has not shown
    that    it   had   less   than   200   employees    during   the   years   of
    discrimination, we hold that the statutory cap in § 1981a(b)(3)(C)
    applies.     We remand with instructions to vacate the judgment of
    $50,000 and to enter a compensatory damages award of $200,000.
                 Based on more than adequate evidence, the ugly details of
    which we do not describe further, the jury issued its award of
    $300,000 on August 18, 2008, "to compensate for past, present and
    future emotional pain and mental anguish caused by [DM's] conduct,
    actions, or omissions."      Hernández-Miranda worked for DM, first as
    a laborer and then as a Safety Officer at labor sites, from August
    2003 until her termination in March 2005.             The evidence at trial
    established    that    the    clearest        incidents      of   harassment,
    discrimination, and abuse occurred in 2004.
              DM   filed   several    motions     after   the    jury's    verdict,
    including an August 26, 2008 motion under Rule 59(e) to reduce the
    verdict based on § 1981a(b)(3).           This motion asserted that the
    current calendar year, for purposes of the damage cap provision, is
    the calendar year of judgment.       DM accompanied the motion with an
    affidavit signed by its vice-president, which stated that in 2007
    DM employed 98 employees and in 2008, the year of the award, DM
    employed only 25 employees.       The affidavit made clear that DM's
    workforce had shrunk since the period of discrimination, from 241
    employees in 2003 and 247 employees in 2004.
              Hernández-Miranda      filed    a   garbled     opposition    to   the
    motion to reduce the award.      She argued that DM had failed to offer
    evidence at trial concerning how many employees it had, and that
    the court had prevented her from doing so.                  Hernández-Miranda
    further asserted that DM had recently merged with another company
    and that the resulting company had 1,300 employees. She also noted
    that there had been testimony at trial that DM at one time had 250
    to 300 employers. Hernández-Miranda did not address which of these
    numbers should guide the damage cap analysis.1
              Hernández-Miranda does raise this issue of statutory
    interpretation on appeal, and we exercise our discretion to excuse
    any waiver. See Powell v. Alexander, 
    391 F.3d 1
    , 21 n.24 (1st Cir.
                  Without     discussion,       the   district      court       assumed    the
    relevant time period for determining the damage cap was the time of
    the   entry    of   the    verdict    and    reduced   the      award       to    $50,000.
    Miranda, 699 F. Supp. 2d at 437-38.
                  We review a district court's ruling on a motion to alter
    or amend the judgment for abuse of discretion, Negrón-Almeda v.
    528 F.3d 15
    , 25 (1st Cir. 2008), reviewing questions of
    law de novo and questions of fact for clear error, Ungar v.
    Palestine     Liberation      Org.,   
    599 F.3d 79
    ,   83    (1st       Cir.    2010).
    Questions of statutory interpretation are questions of law and are
    reviewed de novo.         United States v. Troy, 
    618 F.3d 27
    , 35 (1st Cir.
                  Before the Civil Rights Act of 1991, successful Title VII
    litigants could receive damages for back pay, limited to the pay
    for   the     two   years     prior     to     the   filing      of     a    charge     of
    discrimination.         42 U.S.C. § 2000e-5(g)(1).              The 1991 Act newly
    made punitive damages available under the statute, as well as
    additional forms of compensatory damages: non-pecuniary damages and
    future pecuniary damages.             Id. § 1981a(a)(1) & (b).                   These new
    remedies were made available to Title VII litigants who proved
    intentional discrimination, but not Title VII litigants who proved
    2004). We do so "in the interests of justice."                   Thomas v. Arn, 
    474 U.S. 140
    , 155 & n.15 (1985).
    that an employment practice was unlawful only because of its
    disparate impact.   Id. § 1981a(a)(1).      The remedies were made
    available subject to statutory damage caps.2
              Neither the Supreme Court nor this court has addressed
    the meaning of "current" calendar year under § 1981a(b)(3). We are
    only aware of three circuits that have done so.      The Fourth and
    Fifth Circuits, and, by implication, the Seventh Circuit have
    concluded that the "current" calendar year under § 1981a(b)(3) is
    the year of discrimination.    Depaoli v. Vacation Sales Assocs.,
    489 F.3d 615
    , 622 (4th Cir. 2007); Vance v. Union Planters
    209 F.3d 438
    , 446 (5th Cir. 2000); Hennessey v. Penril
    Datacomm Networks, Inc., 
    69 F.3d 1344
    , 1354-55 (7th Cir. 1995).
              In so holding, the Fourth and Fifth Circuits relied in
    part on language in 42 U.S.C. § 2000e(b).      That provision limits
    the definition of "employer" under Title VII to a person with
    fifteen or more employees "in each of twenty or more calendar weeks
    in the current or preceding calendar year."    42 U.S.C. § 2000e(b).
    The two courts held that the current year under § 2000e(b) is the
    year of the discrimination, and that consistent usage dictates that
    the current year under § 1981a(b)(3) also be the year of the
              To be clear, the caps do not apply to         the damages
    previously available under Title VII. See 42 U.S.C. §   1981a(b)(2).
    Nor do they apply to awards pursuant to state           law claims.
    Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 
    399 F.3d 52
    , 65
    (1st Cir. 2005).
    discrimination.      See Depaoli, 489 F.3d at 622; Vance, 209 F.3d at
                The    Supreme    Court   has    implicitly   reached   the   same
    conclusion about the meaning of "current" calendar year under
    § 2000e(b).       In Walters v. Metropolitan Educational Enterprises,
    519 U.S. 202
     (1997), the Court applied that provision such
    that the "current" calendar year is the year of the discrimination.
    Walters, 519 U.S. at 205 & n.*.        This court interpreted § 2000e(b)
    in this fashion in Vera-Lozano v. International Broadcasting, 
    50 F.3d 67
     (1st Cir. 1995).        There, we held that "the 'current year'
    . . . as defined by the statute" under § 2000e(b) was the year of
    the discrimination.          Id. at 69 (citing Dumas v. Town of Mount
    Vernon, Ala., 
    612 F.3d 974
    , 979 n.4 (5th Cir. 1980)).
                Under settled principles of statutory construction, we
    first look to whether the statutory text is plain and unambiguous.
    Carcieri v. Salazar, 
    129 S. Ct. 1058
    , 1063 (2009).            If it is, "we
    must apply the statute according to its terms."             Id. at 1063-64.
    In conducting this analysis, we begin with the ordinary meaning of
    the terms as of the time when the statutory provision was enacted.
    See id. at 1064.       To determine ordinary meaning, we may consult
    dictionary definitions, interpretations given to the same terms by
    judicial construction, and the statutory context in which the words
    are used.    See id.
              The language of § 1981a(b)(3) provides:
              The sum of the amount of compensatory damages
              awarded under this section . . . and the
              amount of punitive damages awarded under this
              section,   shall    not  exceed,   for   each
              complaining party--
              (A) in the case of a respondent who has more
              than 14 and fewer than 101 employees in each
              of 20 or more calendar weeks in the current or
              preceding calendar year, $50,000;
              (B) in the case of a respondent who has more
              than 100 and fewer than 201 employees in each
              of 20 or more calendar weeks in the current or
              preceding calendar year, $100,000; and
              (C) in the case of a respondent who has more
              than 200 and fewer than 501 employees in each
              of 20 or more calendar weeks in the current or
              preceding calendar year, $200,000; and
              (D) in the case of a respondent who has more
              than 500 employees in each of 20 or more
              calendar weeks in the current or preceding
              calendar year, $300,000.
    42 U.S.C. § 1981a(b)(3).
              The sparse legislative history of the 1991 amendments
    reflect that this provision arose from a political compromise
    between those who wanted to broaden the availability of damages
    under Title VII3 and the Americans with Disabilities Act and those
    concerned that an expansion of remedies under these statutes might
              The expansion of Title VII remedies also equalized the
    remedies available to Title VII gender discrimination plaintiffs
    with those that had previously been available under § 1981 to
    racial discrimination plaintiffs. Compare 42 U.S.C. § 2000e-5(g)
    with 42 U.S.C. § 1981; see also Bryan Hart, Comment, Burden of
    Proof for Employee Numerosity under § 1981a Statutory Damage Caps,
    75 U. Chi. L. Rev. 1657, 1661 (2008).
    result in frivolous litigation and awards that posed economic
    perils to businesses.          This compromise is made clear by the two
    primary interpretive memoranda discussing the Act.                  See 137 Cong.
    Rec. S15,472-78 (daily ed. Oct. 30, 1991) (statement of Sen. Robert
    Dole); id. at 15,483-85 (statement of Sen. John Danforth).                     The
    legislative history does not speak directly to how the phrase
    "current   or    preceding     calendar      year"   should    be    interpreted,
               DM argues that the text is plain and that the term
    "current" means "presently elapsing" or "occurring in or existing
    in the present time."      Merriam-Webster's Collegiate Dictionary 306
    (11th   ed.     2003);   see    also   Carcieri,      129     S.    Ct.   at   1064
    (interpreting the term "now" in the Indian Reorganization Act). DM
    argues that since the caps cannot be applied until there has been
    a verdict award, the "current" calendar year must mean the year of
    the award.      It also argues that this reading gives effect to a
    congressional intent to spare small employers from large awards, as
    employers that shrunk in size would be protected from awards capped
    on the basis of their size at an earlier date.
               Though DM's plain meaning argument is far from frivolous,
    we reject it for several reasons.             In our view, these dictionary
    definitions cannot resolve the issue on appeal. The issue turns on
    from what point in time one should read the term "current," not on
    the abstract meaning of that term.             On its face, the damage caps
    provision does not resolve this question; in our view, it can be
    reasonably    construed   in   different     ways.     To   best   effectuate
    congressional intent, we look both to the context of the larger
    statutory scheme and to how the phrase "current or preceding
    calendar year" had been defined elsewhere in the statutory scheme
    at the time Congress enacted the 1991 amendments to Title VII.
    A.           The Statutory Scheme
                 The damages cap applies to the sum of punitive damages
    and compensatory damages made available by the 1991 Act. See Hogan
    v. Bangor & Aroostook R.R. Co., 
    61 F.3d 1034
    , 1037 (1st Cir. 1995).
    The   caps    apply   individually    to    each   party,   see    42   U.S.C.
    § 1981a(b)(3), and are for the court, not the jury, to apply, see
    id. § 1981a(c)(2).      The statute forbids the court from informing
    the jury of the limitations on recovery.           Id. § 1981a(c)(2).     From
    the legislative history, it is clear that juries are not advised of
    the cap to ensure that "no pressure, upward or downward, will be
    exerted on the amount of jury awards by the existence of the
    statutory limitations." 137 Cong. Rec. S15,484 (daily ed. Oct. 30,
    1991) (statement of Sen. John Danforth).             Of necessity, the caps
    come into play only after there has been a verdict award.4
              Nonetheless, it is not uncommon for evidence as to the
    employer's size to be introduced at trial, as was true in part
    here. See, e.g., Hennessy v. Penril Datacomm Networks, Inc., 
    69 F.3d 1344
    , 1354 (7th Cir. 1995).
               It   is   clear    that     Congress   did    intend   to   protect
    employers,   especially      smaller    employers,   from    ruinously   large
    awards, and that the size of the employer was used as a rough
    measure for the degree of protection needed.                Congress designed
    remedies under Title VII to be somewhat proportionate to ability to
    pay.   The number of employees a company has serves as a proxy for
    this ability.    Smaller employers face smaller penalties; larger
    employers face larger penalties.         This general principle, however,
    does not dispose of the issue in this case.             Congress, we believe,
    intended such protection for those who were small employers at the
    time of the discrimination, and not those who by happenstance or
    design became smaller employers between the time of discrimination
    and the time of the verdict.
               This construction best serves Title VII's purpose of
    encouraging resolution of disputes before litigation commences.
    This purpose is one reason for the requirement of an EEOC filing
    prior to the filing of a lawsuit, see Local No. 93, Int'l Assoc. of
    Firefighters, AFL-CIO C.L.C., v. City of Cleveland, 
    478 U.S. 501
    517-18 (1986), and is best advanced by providing clarity and
    certainty as to the size of potential damage awards from the outset
    of a dispute.   The new types of damages made available in the 1991
    Act are inherently more difficult to value precisely than the back
    pay damages traditionally available under Title VII, rendering this
    type of clarity and certainty all the more important in allowing
    litigants to make informed decisions about settlement.
                 Clarity and certainty of potential liability also allows
    for both sides to set realistic litigation budgets and evaluate
    whether cases are worth bringing and defending.             Such clarity and
    certainty allows businesses to set adequate reserves, disclose
    those reserves in annual reports as necessary, and make assessments
    about    whether    and   how   much   to     insure   against   the   risk   of
    litigation.5    It also provides appropriate incentives to employers
    to take measures for affirmative defenses under Faragher v. City of
    Boca Raton, 
    524 U.S. 775
     (1998), and Burlington Industries, Inc. v.
    524 U.S. 742
     (1998), should a dispute arise.
                 We stress clarity and certainty because only one of the
    offered interpretations provides them.            There is no early clarity
    or certainty under DM's reading.              When cases get scheduled for
    trial is up to the court system, and delay will vary with case
    load.      Interpreting the "current" calendar year as the years of
    discrimination, by contrast, provides clarity and certainty even
    before the lawsuit is filed, and serves the purpose of the 1991 Act
    of providing compensatory, but not excessive, awards. In addition,
    as   the    Vance   court   sagely      recognized,     using    the   year   of
    discrimination prevents employers from "engag[ing] in gamesmanship
              Or at least to insure against the risk of compensatory
    damages, as most insurers will not indemnify punitive damages.
    by structuring companies, or timing the progress of lawsuits, to
    maximize gain or to minimize loss."             Vance, 209 F.3d at 446.
    B.          Preexisting Judicial Constructions
                This construction of the statute is supported by pre-1991
    judicial constructions of § 2000e(b), the Title VII provision that
    also employs the phrase "current or preceding calendar year." Like
    the Fourth and Fifth Circuits, we think the meaning of "current"
    calendar year under § 2000e(b) is relevant to the meaning of
    "current" calendar year under § 1981(a)(b)(3).                See Depaoli, 489
    F.3d at 622; Vance, 209 F.3d at 446.             This parallel provision of
    Title    VII,   which   preexisted   the     1991   amendments,     limits     the
    definition of "employer" under Title VII to persons with fifteen or
    more    employees   during   a   period    of    weeks   in   the   "current    or
    preceding calendar year."        42 U.S.C. § 2000e(b).
                DM argues that the identical language in § 2000e(b) and
    § 1981a(b)(3) need not be construed identically because the two
    sections operate at different stages of a Title VII case and serve
    different purposes.      The § 2000e(b) question comes up at the start
    of a case and determines whether a plaintiff has satisfied an
    element of stating a claim under Title VII.              See Arbaugh v. Y & H
    546 U.S. 500
    , 516 (2006).            By contrast, the § 1981a(b)(3)
    question comes up at the end of a case and has nothing to do with
    whether the plaintiff stated a claim under the Act.             DM argues that
    the purpose of § 1981a(b)(3) is to avoid jury verdicts that would
    drive employers into bankruptcy, and argues that this purpose is
    best served by its interpretation of that provision.6
                Contrary to DM's assertions, § 2000e(b) and § 1981a(b)(3)
    have in common a purpose to prevent ruinous verdicts against small
    employers.     In Clackamas Gastroenterology Associates, P.C. v.
    538 U.S. 440
     (2003), the Supreme Court noted that Congress's
    decision to limit the definition of an "employer" in Title VII and
    other anti-discrimination statutes to a person with fifteen or more
    employees reflected its intent to limit both liability and the
    costs of compliance and litigation for very small firms.             Id. at
    444 & n.3, 446-47.       It is true that § 1981a(b)(3) provides
    protections even for larger employers, but at the very least it
    shares a common purpose with § 2000e(b) with respect to small
    employers. In addressing larger employers, moreover, § 1981a(b)(3)
    effectuates a notion that employers should not be liable for
    ruinous   awards   consistent   with   the   narrower   limitation    in   §
                When Congress passed the Civil Rights Act of 1991, the
    phrase "current or preceding calendar year" had been construed in
              DM quotes from comments of Senator Dale Bumpers during
    the Senate floor debate prior to passage.      See 137 Cong. Rec.
    S15,479 (daily ed. Oct. 30, 1991).      These comments evidence a
    concern about protecting small employers, but they do not convey
    information about the separate issue of when to measure the size of
    an employer. Further, the views of individual members of Congress
    are not dispositive on issues of statutory interpretation. See
    Posters 'N' Things, Ltd. v. United States, 
    511 U.S. 513
    , 522 n.12
    the Title VII context.           Although there was no Supreme Court
    decision on point at the time, there was ample case law construing
    "current" calendar year under § 2000e(b) as the year of the
    discrimination.     See, e.g., Davis v. W. Cmty. Hosp., 
    786 F.2d 677
    681 (5th Cir. 1986); McGraw v. Warren Cnty. Oil Co., 
    707 F.2d 990
    991 (8th Cir. 1983); Dumas, 612 F.2d at 979 n.4, overruled on other
    grounds by Larkin v. Pullman-Standard Div., Pullman, Inc., 
    854 F.2d 1549
    , 1569 (11th Cir. 1988); Slack v. Havens, 
    522 F.2d 1091
    , 1093
    (9th Cir. 1975); see also Komorowski v. Townline Mini-Mart & Rest.,
    162 F.3d 962
    ,   965   (7th   Cir.   1998)   (noting   that   "[c]ourts
    consistently have held that the phrase 'current calendar year'
    refers to the year in which the alleged discrimination occurred,"
    and citing cases, including cases prior to the 1991 Act).
                 The understanding of a term employed by Congress is
    ordinarily determined as of the time of enactment.         See Carcieri,
    129 S. Ct. at 1064.        Terms "that have acquired a specialized
    meaning in the legal context must be accorded their legal meaning."
    Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human
    532 U.S. 598
    , 615 (2001) (Scalia, J., concurring).          Congress
    is presumed to know judicial interpretations of statutory terms as
    of the time it amends statutes.      See id. at 615-16; Cannon v. Univ.
    of Chicago, 
    441 U.S. 677
    , 696-98 (1979). In addition, under normal
    rules of statutory construction, "identical words used in different
    parts of the same act are intended to have the same meaning."
    Dep't of Revenue of Ore. v. ACF Indus., 
    510 U.S. 332
    , 342 (1994)
    (quoting Sorenson v. Sec'y of Treasury, 
    475 U.S. 851
    , 860 (1986))
    (internal quotation marks omitted).
                  The fact that Congress used the same terminology in the
    1991 amendments as in § 2000e(b) makes it quite likely, under
    normal canons of statutory interpretation, that it intended to
    adopt   the    year   of   discrimination    as    the    "current"    year   in
    § 1981a(b)(3). As the Fourth Circuit has noted, the two provisions
    are   interdependent.       See   Depaoli,   489   F.3d    at   622   ("Reading
    §§ 1981a(b)(3) and 2000e(b) together, it becomes apparent that the
    reason § 1981(b)(3) provides no damage cap for employers with less
    than 15 employees is that such employers are presumed to be exempt
    from Title VII's requirements by virtue of § 2000e(b).").               Indeed,
    if the "current" calendar year under § 2000e(b) referred to the
    year of the discrimination and the "current" calendar year under
    § 1981a(b)(3) referred to the year of judgment, employers with more
    that fifteen employees at the start of the litigation but less than
    fifteen employees at the time of judgment could be liable for
    uncapped damages.       See id. at 622.      This could not be Congress's
    intent given its stated interest in protecting small employers from
    ruinous awards.       See Wells, 538 U.S. at 444 n.3, 446-47.
                Having concluded that the "current" year for purposes of
    § 1981a(b)(3) refers to the year of the discrimination, we may
    quickly dispose of two subsidiary issues.
                First, DM makes a mild protest that even under this
    construction of § 1981a(b)(3), the damage reduction should be
    upheld because there is no definitive evidence of record as to the
    number of employees it had at the time of discrimination.               Under
    the logic of Concrete Pipe & Products of Cal., Inc. v. Construction
    Laborers Pension Trust for S. Cal., 
    508 U.S. 602
     (1993), however,
    it is DM who bears the burden of establishing the prerequisites for
    capping the award. Neither the text nor the legislative history of
    § 1981a(b)(3) speaks to who bears the burden of showing the
    relevant number of employees, but due process concerns and the
    traditional burden of proof dictate that the defendant employer
    bear the burdens of production and persuasion on the caps.          See id.
    at 628-30.
                The applicability of the caps is not an element of the
    Title    VII    claim.      Instead,     the   defendant     employer   must
    affirmatively move to impose the cap and to present relevant
    evidence.      Cf. Schaffer ex rel. Schaffer v. Weast, 
    546 U.S. 49
    , 57
    (2005)   (burden    of   persuasion    may   appropriately   be   placed   on
    defendant to prove affirmative defenses or exemptions); see also
    Mashpee Tribe v. New Seabury Corp., 
    592 F.2d 575
    , 589 (1st Cir.
    1979)       ("[N]ormally   the   party    asserting   the   affirmative   of    a
    proposition should bear the burden of proving that proposition.").
    Moreover, the "ordinary rule, based on considerations of fairness,
    does not place the burden upon a litigant of establishing facts
    peculiarly within the knowledge of his adversary."              Schaffer, 546
    U.S. at 60 (quoting United States v. N.Y., N.H. & H.R. Co., 
    355 U.S. 253
    , 256 n.5 (1957)) (internal quotation marks omitted).                  It
    is clear that employers are in the best position to establish how
    many employees they have at a given time.7
                   Second, Hernández-Miranda asks that the case be remanded
    to allow reinstatement of the full $300,000 award on the theory
    that it can be applied to a pendent claim of discrimination under
    Puerto Rican law.          The district court held that this state law
    claim had been abandoned pretrial and we agree.
                   The judgment is vacated and the case is remanded for
    further proceedings consistent with this opinion; to wit, reduction
    of the jury award to $200,000.            Costs are awarded to plaintiff.
                   So ordered.
              As DM has not introduced any evidence concerning how many
    employees it had in 2002, we look only to the evidence it
    introduced with respect to 2003 and 2004.