Alberty -Velez v. Corporacion De Puerto Rico, ALBERTY-VELE

Citation242 F.3d 418
Decision Date14 November 2000
Docket NumberP,ALBERTY-VELE,No. 99-2002,99-2002
Parties(1st Cir. 2001) VICTORIA L.laintiff, Appellant, v. CORPORACION DE PUERTO RICO PARA LA DIFUSI N PUBLICA ET AL., Defendant, Appellee. Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge] Alberto G. Estrella, with whom Gerardo J. Hernandez and William Estrella Law Offices PSC were on brief for appellant.

Pablo Landrau-Pirazzi, with whom Aldarondo & Lopez Bras was on brief for appellee.

Before Lynch and Lipez, Circuit Judges, and Garcia-Gregory, District Judge.*

LIPEZ, Circuit Judge.

Victoria Alberty-Velez appeals from the judgment of the district court in favor of the defendant, Corporacion de Puerto Rico para la Difusion Publica ("WIPR"), in her lawsuit for sex and pregnancy discrimination. Following a five-day jury trial, the district court granted the defendant's Rule 50 motion, concluding as a matter of law that Alberty was an independent contractor, not an employee, and therefore not protected by Title VII of the Civil Rights Act, 42 U.S.C. 2000e. Accordingly, the court determined that there was no question of fact to be submitted to the jury. Earlier, in a summary judgment ruling, the court had decided that Alberty was an employee of WIPR and hence subject to the protections of Title VII. Alberty argues that she relied on the earlier determination in trying her case, and that the unexpected change in position at the end of the trial prejudiced her. We agree. We vacate the judgment and remand for further proceedings.

I. Background

Victoria Alberty-Velez ("Alberty") was hired1 in 1993 by WIPR, a television station in Puerto Rico, to be a host for its new program "Desde Mi Pueblo." The program profiled municipalities in Puerto Rico through visits by the hosts and interviews with residents. Alberty and her two co-hosts, Luis Antonio Rivera (known as "Yoyo Boing") and Deborah Carthy Deu, typically taped ten programs in one four-day work week. Initially, Alberty was paid $400 for each program, but she requested, and received, a raise to $550 per program in December 1993. At trial, Alberty testified that "Desde Mi Pueblo" "immediately became one of the people's favorite programs." The program's producer, Jorge Inserni, also testified that the program was a success with the public.

Nearly one year later, Alberty became pregnant with her first child. Initially, she continued to perform her routine job duties, including tapings and public appearances to promote the program. Following medical complications with her pregnancy, however, Alberty informed WIPR, through Inserni, that her doctor had ordered her not to travel for the remainder of her pregnancy. While she initially planned to continue her job but merely refrain from traveling outside the metropolitan area of San Juan, Alberty notified WIPR two weeks later that her doctor had ordered her not to work at all. She further notified the station that she was taking maternity leave pursuant to Puerto Rico law.2

Alberty's son was born in January 1995. Less than one month later, she met with Inserni and informed him of her intention to return to "Desde Mi Pueblo." Shortly thereafter, she wrote to WIPR, and to Inserni, advising them of her hope to return to the show by February 13, one month after the birth of her son. Alberty never received a response to her letters. Inserni testified at trial that he never saw a copy of that letter, but that if he had, he would not have responded to it under the assumption that the station's legal department was handling Alberty's employment status.

On February 28, a reporter for a local newspaper published an article stating that Alberty would not be returning to "Desde Mi Pueblo," and that WIPR had hired a new host, Maria Falcon, to replace her. Alberty immediately contacted the newspaper to inform the reporter that the information was inaccurate because she still intended to return to the show. WIPR also issued an official press release stating that Alberty would not be returning to "Desde Mi Pueblo" because she had decided to stay at home with her son. Alberty testified at trial that no one from WIPR ever contacted her to verify whether she intended to return to "Desde Mi Pueblo." Additionally, WIPR did not respond to her request for an explanation and retraction of the press release.

Alberty filed for unemployment benefits from the Puerto Rico Department of Labor in June 1995. The Department determined that Alberty was an employee of WIPR and granted the benefits.

Alberty filed her complaint in the instant lawsuit in April 1996, naming as defendants WIPR, Concepto Creativo, William Denizard, Coco Salazar,3 Inserni, and WIPR. She filed an amended complaint shortly thereafter. Alberty claimed that she was discriminated against on the basis of her sex, and because of her pregnancy, in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e, and of Puerto Rico laws prohibiting discrimination on the basis of sex and pregnancy, P.R. Laws Ann. Tit. 29, 146 et seq. and P.R. Laws Ann. Tit. 29, 467 et seq. She also presented a number of contract claims under Puerto Rico law. Following motions for summary judgment brought by all parties, the district court granted summary judgment in favor of all defendants except WIPR and ruled that Alberty was an employee of WIPR. The pretrial order submitted by Alberty and WIPR, and approved by the court, stated in its enumeration of uncontested facts that "Alberty was an employee of WIPR."

Following a five-day trial to a jury, WIPR moved, pursuant to Federal Rule of Civil Procedure 50, for judgment as a matter of law. WIPR claimed that it was entitled to entry of judgment because Alberty was an independent contractor not subject to the protections of Title VII, a finding that would render irrelevant the submission of any other factual questions to the jury. In opposition, Alberty argued that the district court had already ruled on this issue in her favor at the summary judgment stage. Additionally, Alberty contended that the court had erred by allowing WIPR to present evidence that Alberty was an independent contractor because such evidence was contrary to the court's pretrial determination and irrelevant in light of the pretrial order defining the issues for trial. After a brief hearing, the district court ruled in favor of WIPR, finding that Alberty was an independent contractor, and dismissed the jury.

II. The Summary Judgment Ruling and the Pretrial Order

Title VII defines "employee" as "an individual employed by an employer." 42 U.S.C. § 2000e(f). The Supreme Court has recognized that this definition "is completely circular and explains nothing," Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992),4 and we have characterized it as "a turn of phrase which chases its own tail," Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997). Despite this lack of statutory guidance, courts have interpreted "employee" to exclude independent contractors under Title VII. See, e.g., Dykes v. Depuy, Inc., 140 F.3d 31, 37 n.6 (1st Cir. 1998). Thus, a finding that Alberty was an independent contractor, and not an employee of WIPR, would preclude any recovery from the company under Title VII. Such a determination is a question of federal law. See Serapion, 119 F.3d at 988.

In the summary judgment ruling at issue in this appeal, the district court stated: "After having taken into account all the factors above mentioned [referring to the factors relevant to the independent contractor/employer determination], this Court finds that Alberty was an employee of WIPR." The pretrial order incorporated this ruling as one of the uncontested facts: "This Honorable Court ruled that Alberty was an employee of WIPR." The pretrial order also identified the seven remaining contested issues of law:

1. Whether Alberty intended to return to "Desde Mi Pueblo" after giving birth to her son.

2. Whether the fact that Alberty was absent due to her pregnancy was a motivating factor in WIPR's employment decision in violation of Title VII of the Civil Rights Act.

3. If the jury finds that WIPR [sic] acts were discriminatory, whether these acts were intentional and thus require the imposition of punitive damages.

4. Whether WIPR retaliated against Alberty.

5. Whether WIPR violated Puerto Rico laws of discrimination.

6. Whether Alberty is entitled to reinstatement.

7. Amount of damages.

As the list reveals, Alberty's status as an employee is not specified as one of the issues to be litigated at trial.

On the third day of trial, immediately before WIPR began to present its defense, the court denied Alberty's motion in limine to exclude evidence of the norm in Puerto Rico for the employment of television hosts for shows similar to "Desde Mi Pueblo," notwithstanding the court's partial summary judgment adjudication and the pretrial order.5 The court also overruled Alberty's repeated objections to such evidence throughout the remainder of the trial. At the end of the trial, WIPR moved for judgment as a matter of law, arguing that the evidence indicated that Alberty had never been WIPR's employee. The district court granted the motion, citing evidence not before it at the summary judgment stage:

I mean, if I would have had more of this evidence, if I would have had the actual contracts, the actual checks where payments were made where no deductions were made, if I would have had the deposition testimony as to what was the practice in the industry, what were the 1,200 employees, what type of relationship were, [sic] the balancing test that I made in my opinion and order if by the way you read it, there are more factors which I mentioned in my opinion of December that would favor an opinion at that time that the plaintiff was an independent contractor than there are factors...

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