364 F.Supp.2d 144 (2005) | Cited 3 times | D. Puerto Rico | April 4, 2005



This is an action under Title VII filed by Plaintiff Carmen I.Rosado Sostre against Defendants Turabo Testing, Inc., and itsPresident, Leonidas Almonte Medina, for damages due to sexualharassment and unjustified dismissal.

Procedurally, on July 21, 2004, and after counsel forDefendants resigned, the Court ordered new counsel for Defendantsto make an appearance before this Court in the form of a motionon or before Monday, August 2, 2004, and warned Defendants thattheir failure to appear would result in the Court enteringjudgment for Plaintiff to have and recover from Defendants anamount to be determined during a hearing scheduled solely todetermine such amount.

The Court went to great lengths to ensure that Defendantsreceived a copy of the Order, and it ordered the Clerk of theCourt to send the order by certified mail, return receiptrequested, to Mr. Víctor Gratacós, attorney for Turabo Testing,Inc. in bankruptcy matters, to Mr. William R. Reyes-Elías,former attorney for Defendants in this case, and to co-DefendantMr. Leonidas R. Almonte-Medina. Defendants did not appear before the Court asordered, and the Court accordingly entered Judgment for PlaintiffCarmen I. Rosado Sostre on November 29, 2004.

The Court held a damages hearing before a jury on March 9,2005, where Plaintiff presented her witnesses and submitteddocumentary evidence in support of the damages claimed againstDefendants. The Court heard live testimony from Plaintiff andfrom Dr. José Villanueva Pérez, and in support of her claims,Plaintiff also offered the following evidence: Exhibits 1-2,Plaintiff's earnings statements; Exhibit 3-4, Plaintiff's IncomeTax Withholding Statements from 2000 and 2001 from A&MContractors; Exhibit 5, Letter from Clínica de TerapiasPediátricas verifying Plaintiff's employment therein; Exhibit 6,Plaintiff's Medical Record at the office of Dr. José RodríguezCay; Exhibit 7, Curriculum Vitae of Dr. José Villanueva Pérez;Exhibit 7-A, Dr. José Villanueva Pérez' certification andregistration card as a psychologist; Exhibit 7-B, Dr. JoséVillanueva Pérez' license to practice; Exhibit 7-C, Dr. JoséVillanueva Pérez' Diploma of Doctorate in Philosophy; Exhibit 8,Psychological Assessment of Plaintiff Produced by InstitutoIntegral de Servicios Psicológicos. As the hearing was indefault, no one appeared or offered any evidence on behalf ofDefendants.

On that same date, the jury rendered its verdict, and foundthat Plaintiff had proven her damages by a preponderance of theevidence, and returned a verdict in her favor and againstDefendant Turabo Testing, Inc. The jury rendered its verdict infavor of Plaintiff, to have and recover as follows: a. for Pain and Suffering (Question 2(A)(I) of the Verdict Form) as a consequence of Defendants' actions under Title VII: from Defendant Turabo Testing, Inc., the amount of Two Million, Five Hundred Thousand Dollars ($2,500,000.00);

b. for Loss of Earnings (Question 2(A)(ii) of the Verdict Form) for loss of earnings: from Defendant Turabo Testing, Inc., the amount of Five Hundred Thousand Dollars ($500,000.00); c. for Pain and Suffering (Question 2(B) of the Verdict Form) as a consequence of Defendants' actions under Puerto Rico Law 100: from Defendant Leonidas Almonte, NO MONEYS.

Based on the evidence submitted, and after due deliberation,the Court makes the following Conclusions of Law.


At the outset, the Court makes clear that it is issuing thisOpinion and Order based on the fact that since this was a defaulthearing where Defendants did not appear, it has to proceed withcaution and protect Defendants' rights and interests, even intheir absence. For that reason, it must intervene when it is ofthe opinion, as in this instance, that the jury verdict asrendered, cannot stand. For the following reasons, the Courthereby REMITS the jury award.

Title VII of the Civil Rights Act of 1964 provides that . . ."[i]t shall be an unlawful employment practice for an employer tofail or refuse to hire or to discharge any individual, orotherwise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment,because of such individual's race, color, religion, sex ornational origin." 42 U.S.C. § 2000e-2(a)(1).

As is well known, Title VII is the mainstay of the laws whichCongress enacted to end discrimination in the workplace.Concerned that Title VII's reach was too narrowly phrased,Congress later amended the statute to make manifest thatdiscrimination "because of sex" or "on the basis of sex" includeddiscrimination, among others, sexual favors and "because of or onthe basis of pregnancy, childbirth, or related medicalconditions." Pub.L. 95-555, § 1, 92 Stat. 2076 (Oct. 31, 1978),codified at 42 U.S.C. § 2000e(k) (1982). See Cumpiano v. BancoSantander Puerto Rico, 902 F.2d 148 (1st Cir. 1990). However,this Circuit has not yet decided the issue of individualliability under Title VII, and had thus far declined to rule onit. See Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 951-52(1st Cir. 1995) (leaving the Title VII individual liabilityquestion open); and Serapión v. Martínez, 119 F.3d 982 (1stCir. 1997) (same holding). Therefore, this Court will adopt theusual ruling of this issue in this district, and the corporation— in this instance, Turabo Testing — will be the only one heldresponsible under Title VII.

Puerto Rico's Law 100, Title VII's local counterpart, seeks toprevent discrimination in the workplace by reason of age, race,color, religion, sex, social or national origin or socialcondition. 29 P.R. Laws Ann. § 146. This statute, as opposed tothe federal statute, seeks to hold individual employers or supervisorspersonally liable for their discriminatory actions, if they arethe plaintiff's supervisor and are personally responsible forcausing the plaintiff's injury.

Since this was a default hearing, the Court accepted as trueall allegations in the Complaint, and therefore, liability wasalready established against Defendants when the hearing began.The jury's job, therefore, was only to determine if Defendants'actions had caused Plaintiff damages, and if so, in what amountshe should be compensated therefor.

A. The Title VII Award

It is well established that a Court will not disturb a jury'sverdict unless it is against the clear weight of the evidence.See Brady v. Fort Bend Cty., 145 F.3d 691, 713 (5th Cir.1998) and Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5thCir. 1986). While this Court does not normally engage in thispractice, the existing law prevents the Court from entering averdict for the amount awarded by the Jury.

Title VII has a maximum award of money it allows a Court toaward, depending on the number of employees that the company has.At the outset, the Court notes that the maximum awards in thestatute are substantially lower than the Two and One Half MillionDollars the jury awarded Plaintiff.

3) Limitations

The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, 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.A. § 1981a(3).

During her direct testimony, Plaintiff testified that TuraboTesting employs approximately 35 employees. Therefore, andaccording to the statute, the maximum allowed for companies thatemploy more than 14 and fewer than 101 employees in each of 20 ormore calendar weeks in the current or preceding calendar year isFIFTY THOUSAND DOLLARS ($50,000.00). Since the jury award wasso high, however, it evidences that the jury found thatPlaintiff's compensatory damages were elevated. Therefore, theCourt REMITS Plaintiff's award for compensatory damages to themaximum allowed by the statute, FIFTY THOUSAND DOLLARS($50,000.00).

B. The Loss of Earnings Award

Regarding the award for loss of earnings, the Court finds thesame to be unsupported by the evidence that was presented attrial. It has been well established that in order for an award ofdamages to ensue, the damages must be proven with reasonable certainty.See Allens Mfg. Co., Inc. v. Napco, Inc., 3 F.3d 502 (1stCir. 1993); National Chain Co. v. Campbell, 487 A.2d 132,134-35 (R.I. 1985) (damages must be established "with reasonabledegree of certainty" and plaintiff "cannot rely upon speculation"in order to prove his damages); Restatement (Second) ofContracts, § 352 (1981) ("Damages are not recoverable for lossbeyond an amount that the evidence permits to be established withreasonable certainty.").

The Court finds that the jury's award of $500,000.00 is grosslyexcessive and inordinate in light of the evidence presented. Inparticular, it finds that the jury was specifically guided by theComplaint, which asks for the total amount that was awarded asdamages.

Once again, as it did during the trial, the Court must mentionthat the burden of proving loss of earnings is on the Plaintiff;that is to say, she must not only allege loss of earnings, butmust also prove that she would have earned that money. It wouldseem to the Court that by awarding $500,000.00 for loss ofearnings to a person that earned approximately $1,800.00 a month,the jury clearly did not engage in the mathematical process thatwas necessary in order to properly calculate Plaintiff's loss ofearnings. Therefore, the amount they awarded Plaintiff wasdecided upon by sheer speculation.

According to the Court's math, Plaintiff made $280.00 a week atTurabo, for a total of $1,120.00 per month for salary alone.Plaintiff additionally testified that she spent two (2) extrahours per day, five days a week at $14.00 per hour in overtime ($560.00/month) and five (5) hours every other Saturday at $14.00per hour in overtime ($140.00/month), for a total of $1,820.00per month. Although she also testified that she received somemoney in royalties of year-end bonuses, no evidence was providedto the Court as to their existence. Therefore the Court shall notconsider them in its analysis.

After being dismissed, Plaintiff testified that she remainedunemployed for five (5) months until she obtained a job at theFlamboyán Apartments. Therefore, she sustained $9,100.00 inloss of earnings during those five months. She then testifiedthat she worked at the Flamboyán Apartments for one year,earning approximately $890.00 a month. Therefore, she sustained aloss of earnings of $11,160.00 during that year, the differencein her earnings from Turabo Testing and Flamboyán Apartments.

In March 2001, Plaintiff obtained a job at ClínicasPediátricas earning $7.00 an hour working forty (40) hours perweek, for a total salary of $1,120.00 monthly until she receiveda raise in March 2002; therefore, from March 2001 through March2002 her loss of earnings was $8,400.00. In March 2002, shereceived a raise of $8.00 an hour, for a total monthly salary of$1,280.00 per month, until August of 2002, when she received yetanother raise. Therefore, her loss of earnings from March 2002through August 2002 totals $6,480.00. Lastly, from August 2002until today, her salary has been $1,600.00 per month. Therefore,her loss of earnings from August 2002 until today is $6,820.00.Adding all these figures, the Court comes to a total figure ofFORTY-ONE THOUSAND, NINE HUNDRED AND SIXTY DOLLARS ($41,960.00) for loss of earnings. Plaintiff further testifiedthat she has spent a total of $900.00 in visits to thepsychiatrist in order to help her overcome her ordeal, bringingthe grand total to FORTY-TWO THOUSAND, EIGHT HUNDRED AND SIXTYDOLLARS ($42,860.00).

Based on the aforementioned legal principles, and as applied tothe facts in this case, the Court hereby REMITS the totalamount of the Jury's award of Three Million Dollars toNINETY-TWO THOUSAND, EIGHT HUNDRED AND SIXTY DOLLARS($92,860.00), plus post-judgment interest, at the prevailingrate of interest calculated as of the date of the entry ofJudgment.


For the aforementioned reasons, the Court hereby REMITS theJury's award to Plaintiff Carmen I. Rosado Sostre to NINETY-TWOTHOUSAND, EIGHT HUNDRED AND SIXTY DOLLARS ($92,860.00), pluspostjudgment interest at the prevailing rate of interest computedas of the date of the entry of Judgment. Judgment will be enteredaccordingly against Turabo Testing, Inc., and the caseDISMISSED against its President, Leonidas Almonte Medina.


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