902 F.2d 148 (1st Cir. 1990), 89-2097, Cumpiano v. Banco Santander Puerto Rico

Docket Nº:89-2097.
Citation:902 F.2d 148
Party Name:Wilma CUMPIANO a/k/a Wilma Cumpiano Sanchez, Plaintiff, Appellee, v. BANCO SANTANDER PUERTO RICO, Defendant, Appellant.
Case Date:May 04, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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902 F.2d 148 (1st Cir. 1990)

Wilma CUMPIANO a/k/a Wilma Cumpiano Sanchez, Plaintiff, Appellee,



No. 89-2097.

United States Court of Appeals, First Circuit

May 4, 1990

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[Copyrighted Material Omitted]

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Jay A. Garcia Gregory, with whom Ricardo F. Casellas, Emily Arean-Diaz, and Fiddler Gonzalez & Rodriguez, San Juan, P.R., were on brief, for defendant, appellant.

A. Santiago-Villalonga with whom Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiff, appellee.

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Before BREYER and SELYA, Circuit Judges, and RE, [*] Judge.

SELYA, Circuit Judge.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e through 2000e-17 (Title VII), is the mainstay of the reticulation of laws which Congress 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 that discrimination "because of sex" or "on the basis of sex" included discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." Pub.L. 95-555, Sec. 1, 92 Stat. 2076 (Oct. 31, 1978), codified at 42 U.S.C. Sec. 2000e(k) (1982). Invoking these amendments, plaintiff-appellee Wilma Cumpiano Sanchez (Cumpiano), who claimed to have been fired because of her pregnancy, sued her former employer, defendant-appellant Banco Santander Puerto Rico (the Bank), in federal district court. Following a bench trial, the district judge ruled in Cumpiano's favor. Cumpiano v. Banco Santander, No. 87-0873, slip op. (D.P.R. Oct. 31, 1989) (hereinafter "D. Ct. Op."). The Bank appeals.


We present the facts in the light most hospitable to the verdict-winner, consistent with record support. The Bank hired Cumpiano in 1978. In due time, she came in contact with, and worked under the supervision of, Humberto Rodriguez Calderon (Rodriguez), the Bank's assistant comptroller. In 1980, Cumpiano and Rodriguez became enmeshed in an amorous relationship. Although Rodriguez was married, the record reflects that the affair was conducted in a public and notorious fashion. In 1982, a child was born to the couple out of wedlock. The Bank clearly knew of the affair and of its consequences; indeed, Rodriguez presented a copy of the infant's birth certificate to appellant's human resources director, Arturo Thurin, and secured coverage for his offspring under an employer-paid health insurance policy. The lovers stayed on the payroll after the baby was born. Plaintiff was not reprimanded, admonished, or cautioned in any way. And the affair continued "openly." D.Ct.Op. at 2.

Although appellant denies that it was aware of the romance's prolongation, the evidence amply sustains the opposite inference. To cite one example, there was proof, credited by the court below, that at an office softball tournament in 1983, Rodriguez's adult son (who also worked for the Bank) argued publicly with his father about Cumpiano's presence. Several officials of the Bank, including its assistant personnel officer, witnessed this episode and overheard the discussion. Thurin was told about it shortly thereafter. So was the Bank's senior vice president.

Cumpiano had various assignments over the years. After 1982, she and Rodriguez worked in different departments. They still spent time together out of the office. Parturiency again resulted. In December 1986, following a brief vacation, Cumpiano returned to work dressed in maternity clothes and visibly pregnant. She was handed a letter promoting her, on an interim basis, to operations officer (a position in which she directly supervised 7 to 9 employees at the Bank's San Juan branch). Weeks later, the axe fell. Thurin fired both Rodriguez and Cumpiano on January 29, 1987. Cumpiano received no notice, but Thurin offered her $5,000 in exchange for a letter of resignation and a general release. When Cumpiano asked for an explanation of her dismissal, Thurin refused to give her any reason, saying only that he did not wish to discuss things she already knew.

At trial, appellant claimed that Cumpiano was dismissed because her conduct violated the Bank's internal regulations. Specifically, appellant protested that plaintiff's affair with a married man made her guilty of the crime of adultery under Puerto Rico law and was therefore violative of Norm 14

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of the Bank's Manual of General Norms of Work and Conduct (Manual). 1 Plaintiff asserted that the stated reason was pretextual. After evaluating the evidence the district court found in Cumpiano's favor, reinstating her and awarding backpay, compensatory damages, counsel fees, and costs.


While we review errors of law occurring in the course of a bench trial de novo, Reliance Steel Products Co. v. National Fire Ins. Co., 880 F.2d 575, 577 (1st Cir.1989), our review of factual determinations is much more circumscribed. The Civil Rules illumine the course we must steer:

In all actions tried upon the facts without a jury.... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

Fed.R.Civ.P. 52(a). The trial judge sees and hears the witnesses at first hand and comes to appreciate the nuances of the litigation in a way which appellate courts cannot hope to replicate. Recognizing the superiority of this bird's-eye view, Rule 52(a) commands, and our precedents ordain, that deference be paid to the trier's assessment of the evidence. See, e.g., Jackson v. Harvard Univ., 900 F.2d 464, 466 (1st Cir.1990); Reliance Steel, 880 F.2d at 576; Keyes v. Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988); Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 71 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984).

It follows inexorably that, in a jury-waived case, appellate courts cannot presume to decide factual issues anew. Reliance Steel, 880 F.2d at 576; Keyes, 853 F.2d at 1019. Rather:

If the district court's account of the evidence is plausible in light of the record reviewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); accord Jackson, 900 F.2d at 466, 467-68; Keyes, 853 F.2d at 1019-20. Thus, we ought not to upset findings of fact or conclusions drawn therefrom unless, on the whole of the record, we form a strong, unyielding belief that a mistake has been made. See Reliance Steel, 880 F.2d at 576; RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 203 (1st Cir.1987); see also United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Findings concerning an actor's intent fit neatly within the integument of the "clearly erroneous" rule. See Anderson, 470 U.S. at 566, 105 S.Ct. at 1508; United States v. National Assoc. of Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950); Keyes, 853 F.2d at 1019.


Title VII makes it unlawful for an employer, inter alia, "to discharge any individual

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... because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. Sec. 2000e-2(a)(1) (1982). The inquiry in a Title VII disparate treatment case is whether the defendant intentionally discriminated against the plaintiff on the basis of a protected attribute. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); Keyes, 853 F.2d at 1023; Oliver v. Digital Equipment Corp., 846 F.2d 103, 106 (1st Cir.1988). Since 1978, gravidity has been so "protected," that is, the ban on gender-based discrimination has applied explicitly to discrimination "on the basis of pregnancy." 42 U.S.C. Sec. 2000e(k) (1982).

Under Title VII, the plaintiff has the burden of proving that the defendant discriminated against her for a proscribed reason. In doing so, the plaintiff "does not have to present direct proof of discriminatory motive in order to prevail." Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir.1989). Absent direct evidence, a plaintiff will usually proceed in terms of the burden-shifting framework formulated by the Supreme Court. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 1094-96, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). As adapted to employment termination, we interpret the Burdine model to provide that a prima facie case may be established by showing that: (1) the plaintiff was within a protected class; (2) she was qualified for, and adequately performed, her job; (3) she was nevertheless dismissed; and (4) after her departure, the employer sought someone of roughly equivalent qualifications to perform substantially the same work. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 899 (1st Cir.1988); Blizard v. Fielding, 572 F.2d 13, 15 (1st Cir.1978); see also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir.1990) (ADEA).

Once established, the prima facie case serves only to shift the burden of production to the...

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