Marcano-Rivera v. Pueblo Int'l, MARCANO-RIVERA

• Decision Date: 07 June 2000
• Docket Number: MARCANO-RIVERA,Nos. 99-1702,99-1703,s. 99-1702
• Parties: (1st Cir. 2000) MARIE; OSVALDO ROMAN, Plaintiffs, Appellees/Cross-Appellants, v. PUEBLO INTERNATIONAL, INC., Defendant, Appellant/Cross-Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 245

232 F.3d 245 (1st Cir. 2000)

MARIE MARCANO-RIVERA; OSVALDO ROMAN, Plaintiffs, Appellees/Cross-Appellants, v. PUEBLO INTERNATIONAL, INC., Defendant, Appellant/Cross-Appellee.

Nos. 99-1702, 99-1703.

United States Court of Appeals, First Circuit.

Heard June 7, 2000.

Decided October 25, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Raymond L. Acosta, Senior U.S. District Judge. [Copyrighted Material Omitted] Etienne Totti-del Valle, with whom Jos R. Gonzlez-Nogueras, Manuel A. Quilichini-Garca, Jorge C. Pizarro-Garca and Totti & Rodrguez Daz were on brief, for appellants.

Luis R. Mellado-Gonzlez, with whom Law Offices Luis R. Mellado-Gonzlez was on brief, for appellee.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and Schwarzer, ^* Senior District Judge.

TORRUELLA, Chief Judge.

Marie Marcano-Rivera and her husband, Osvaldo Romn-Snchez, filed this suit against Marcano's former employer, Pueblo International, Inc., on September 2, 1997. The complaint alleges that Pueblo discriminated against Marcano because of her physical disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., as well as its Puerto Rico counterpart, Law 44 of July 2, 1995, as amended, 1 L.P.R.A. 501 et seq. The complaint also contains a claim for damages pursuant to Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141, which provides a cause of action to relatives of a tort victim. The case went to trial, where a jury determined that Pueblo had violated both the ADA and Law 44 by discriminating against Marcano in her employment. As a result of this finding, the jury awarded plaintiffs $275,000 in compensatory damages. The district court subsequently doubled the damages awarded to Marcano pursuant to the remedies provision of Law 44, see 29 L.P.R.A. 146 (a)(1), and entered judgment accordingly. Both parties filed timely appeals.

For the reasons stated below, we affirm in part and vacate in part the judgment of the district court.

BACKGROUND

Plaintiff Marie Marcano-Rivera was born on June 2, 1965 with a congenital bone defect in her legs. As a result of this condition, both of her legs were amputated early in her life. Since then, she has used a wheelchair. Marcano is married to co-plaintiff Osvaldo Romn-Snchez, and both plaintiffs reside together in San Juan, Puerto Rico. Defendant, Pueblo International, Inc., is a Delaware corporation that is in the business of owning and operating retail supermarkets.

In April of 1989, Marcano began working for Pueblo as a part-time cashier. Initially, she worked at the Altamira Supermarket, which is located in San Juan, Puerto Rico. Marcano remained a part-time employee until February, 1992, at which time her status changed to full-time cashier.

In July of 1993, Marcano requested and received a transfer to X-TRA Las Amricas Supermarket, which is also located in San Juan. There, Marcano continued to work as a cashier until November 3, 1993, when she was moved to the produce department to work as a weight station clerk. As a weight station clerk, Marcano weighed fruits and vegetables. She continued, however, to work as a cashier during periods of intense business activity, such as public holidays. In October of 1996, the position of weight station clerk was eliminated because the job of weighing produce was relocated to the cash register. At that time, all employees classified as weight station clerks were automatically reclassified as produce clerks regardless of their personal circumstances. Marcano was then moved to the floral department where she remained until January 24, 1997, when she was dismissed as part of a reduction in work force that resulted in the dismissal of 197 management employees and 294 regular employees.

On February 4, 1997, Marcano filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the Anti-Discrimination Unit of the Puerto Rico Department of Labor and Human Resources. She received a right-to-sue letter from the EEOC on June 3, 1997, and thereafter filed this action in the United States District Court for the District of Puerto Rico on September 2, 1997.

On the eve of trial, Pueblo filed several motions in limine. Relevant to this appeal is Motion In Limine No. 3. In that motion, Pueblo argued that the court should exclude all evidence of alleged failures to accommodate that occurred prior to July 26, 1992. Pueblo reasoned that prior to that date neither the ADA nor Law 44 provided a private cause of action for failure to accommodate. Prior to opening statements on February 23, 1999, the district court denied the motion. As a result of that ruling, Marcano was allowed to testify regarding events that allegedly occurred prior to July 26, 1992. These included: (1) Marcano's inability to properly access the women's restroom with her wheelchair; (2) Pueblo's failure to modify the cashier station so that Marcano could comfortably work there; (3) Pueblo's failure to make Marcano a full-time employee despite the fact that she worked over forty hours a week for over two and a half years; and (4) Pueblo's failure to consider Marcano for an office position at the Altamira store, allegedly because her wheelchair would not fit well into the office space.

Marcano's testimony also included several events that occurred after July 26, 1992, that she believed were indicative of Pueblo's alleged failure to accommodate her disability. First, Marcano stated that at one point in time she was informed by Pueblo that she could no longer use the handicapped parking space that was reserved for customers. This lasted approximately one month, after which Marcano once again began parking in the handicapped parking space. Second, she testified that while assigned to the position of assistant florist she was not able to use her wheelchair because the area where the florists worked was not handicap accessible. As a result, Marcano was forced to access the florists' area by walking on her amputated limbs, which she indicated led to the development of cellulitis. Third, Marcano testified that immediately prior to her termination her manager, Ceferino Torres, told her, "Mara, from the bottom of my heart, I don't know what they're going to do with you because Mr. Pedro Daz doesn't know where to place you because of your physical disability." Finally, Marcano stated that it was not until she was terminated that she learned that the company had classified her as a produce clerk; until that time, she believed that she was, and always had been, a cashier.

At the end of the first day of trial, and following the direct examination of Marcano, the district court reexamined its ruling regarding the applicability of Law 44 to events that occurred before July 26, 1992. The court stated:

Now, in going further into the matter after it was brought up today, because the Court was not given an opportunity to look into that because you haven't brought it up, finds that the initial Law 44 did apply to discrimination in public agencies or private agencies receiving public funding and that obviously did not create a private cause of action up until July of 1992, when it was amended and then did create a private cause of action along with the Federal ADA.

So I'm going to amend my ruling and state for the record that what I'm going to do is to give the jury a limiting or cautionary instruction at the time that I give the instructions stating in effect that the testimony that had been given from the time she started with Pueblo and is being allowed and was allowed to establish an animus pattern, attitude motive of the defendant as evidence of a pretext, but that any acts post July 1992, may be considered by the jury as violations of the ADA and Law 44; that is, failure to accommodate for purposes of any damages.

Now, that is the limiting instruction that I'm going to give to the jury.

Pueblo then argued that a curative instruction would not be sufficient unless it clearly stated that "Pueblo had no legal obligations to accommodate prior to 1992." The court indicated that it would consider broadening its instruction accordingly.

After the presentation of plaintiffs' evidence, Pueblo moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. The district court instructed counsel not to continue with his arguments regarding reasonable accommodation because those issues would be sent to the jury. Pueblo was, however, allowed to proceed with its motion with regard to the alleged discriminatory termination. Nevertheless, the district court denied the motion.

At the close of evidence, Pueblo renewed its motion for judgment as a matter of law. This time, the district court granted the motion in part, dismissing plaintiffs' claim for discriminatory discharge on the ground that there was no evidence to support this allegation. However, the court ruled that it would allow the remaining claims to go to the jury.

The case was submitted to the jury on February 26, 1999. As part of its lengthy instructions to the jury, the court gave the following limiting instruction regarding the applicability of the ADA and Law 44 to events which occurred prior to July 26, 1992:

Now, the purpose of the Americans with Disabilities Act and Law 44, is to eliminate employment discrimination against individuals with disabilities. These statutes make it unlawful for an employer to intentionally discriminate against an employee because of that person's disability. These statutes went into effect on July 26, 1992. Accordingly, the defendant may only be liable under these provisions if you find them so liable for conduct incurred after July 26, 1992.

Therefore, I hereby instruct you that you should not consider in your deliberations in this case any discriminatory events prior to July 26, 1992, the date when the Americans with Disabilities Act and Law 44 went into effect. Nor should you consider...