Juan C. PAGAN-COLON; Ada I. Renta-Bonilla; Conjugal Partnership Pagan-Renta, Plaintiffs, Appellees, Cross-Appellants, v. WALGREENS OF SAN PATRICIO, INC., Defendant, Appellant, Cross-Appellee.
Nos. 11-1089, 11-1091.
United States Court of Appeals, First Circuit.
Heard March 6, 2012. Decided Sept. 4, 2012.
Jorge Martinez-Luciano, with whom Alfredo Acevedo-Cruz was on brief, for appellees.
Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.
This case arises from the termination of the plaintiff-appellee, Juan Pagan-Colon, from his job as an assistant manager at a Walgreens store in Juana Diaz, Puerto Rico. Although the parties disagree as to the reason for Pagan‘s termination, there is no dispute that he was fired after a two-week absence from his job due to a medical condition that required one week of hospitalization and another week of recuperation. Following Pagan‘s termination, he and his wife, Ada Renta-Bonilla, brought claims in federal district court against Walgreens alleging that he was fired in retaliation for conduct protected by the Family Medical Leave Act (FMLA),
On appeal, Walgreens argues that it was entitled to judgment as a matter of law on the FMLA claim and that the district court erred in denying a
For the reasons described below, we affirm the judgment of the district court in all respects, save its rejection of Renta‘s Puerto Rico law claim. That claim presents an important and unresolved issue of Puerto Rico law that we decline to address in the first instance. Accordingly, we certify the question to the Supreme Court of Puerto Rico and reserve judgment on this particular issue pending its response. Additionally, as a matter of first impression, we conclude that a backpay award under the FMLA may include overtime compensation.
A. Factual Background
As we are called upon to review the denial of a motion for judgment as a matter of law, we review the evidence “in the light most favorable to the verdict” in favor of Pagan. Alvarado-Santos v. Dep‘t. of Health, 619 F.3d 126, 132 (1st Cir.2010).
1. Pagan‘s Hospitalization and Discharge
Pagan began working for Walgreens in September 2000. By the time of his discharge in 2008, he had been promoted to assistant manager of the Walgreens store in Juana Diaz. On May 10, 2008, Pagan reported for work at 4 a.m., but shortly thereafter he began to experience chest pains, heart palpitations, and sweating. His symptoms worsened that morning, and during his 9 a.m. break he went to the emergency room at a local hospital. Already suffering from type II diabetes, he was found to have high blood sugar and high blood pressure, and he asked hospital staff to contact his wife, Renta.
When Renta arrived, Pagan asked her to contact Edwin Figueroa, the manager of the store at which he worked, and tell Figueroa that he was in the hospital and unsure when he could return to work. She did so immediately after leaving the emergency room at approximately 10 a.m. She also called the store twice more that day to give updates on Pagan‘s condition and inform those at the store of his admission to the hospital. Pagan was hospitalized from May 10 to 17, and he underwent a cardiac catheterization surgical procedure on May 16. During his hospitalization, he was in contact with co-workers, including another assistant manager whom he told of his upcoming surgical procedure.
Pagan was discharged from the hospital on May 17. That day, he went to the Walgreens store at which he worked to pick up prescription medication and deliver a medical certificate explaining his absence. He met with assistant manager Mariel Colon, who was the most senior employee present at the time, and bookkeeper Wanda Santiago. During this meeting, he told Colon that his doctors had ordered him to rest at home for one week and he presented the medical certificate to Santiago, a fact verified by that day‘s surveillance video footage from the store and stipulated by the parties at trial. However, Figueroa, the store‘s manager, testified that news of Pagan‘s hospitalization, physician-ordered recuperative rest, and delivery of the medical certificate was not communicated to him.
2. Pagan‘s Termination
After consultation with the Walgreens district supervisor and corporate legal counsel, Figueroa sent a letter dated May 19 to Pagan, stating that he had not heard from Pagan and had no explanation for his extended absence. The letter asked that Pagan contact Walgreens management to determine his eligibility for disability leave, and stated that if he did not do so within 48 hours there might be “negative consequences for [his] job.” Pagan did not receive this letter until May 28,1 well after the expiration of the 48-hour deadline, and Figueroa never called Pagan or made any other attempt to get in touch with him. On May 23, having not heard from Pagan, Figueroa again consulted with the district supervisor and legal counsel, and the decision was made to terminate Pagan‘s em-
Unaware of this decision, Pagan went to the store that same day to let others know that he was available to return to work the following day and to determine what his work schedule would be. He spoke with assistant manager Ivelisse Lopez, who agreed to speak with other managers and let Pagan know when she learned of his schedule. After Figueroa became aware of Pagan‘s visit, he asked Lopez to contact Pagan with instructions to come into the store to meet with him at 8 a.m. the following day. When Pagan came to work on May 24, Figueroa told him that he was fired and asked him to return his keys to the store. Figueroa offered no explanation for the termination. When Pagan asked for one, Figueroa simply told him to contact Walgreens’ corporate offices. After trying unsuccessfully for several days to contact someone at Walgreens’ corporate offices by phone, Pagan went to the office in person and was able to meet with Miriam Diaz of Walgreens’ Human Resources Department. Diaz was also unable to explain his termination, but she said that she would look into the matter and give Pagan an answer.
Upon realizing that Pagan had documentation of his hospitalization and doctor-ordered rest, Figueroa, in consultation with the Walgreens district manager and Walgreens legal counsel, decided to reconsider his termination. On June 3, Figueroa called Pagan to ask him to come to the store to be interviewed. The next day, Pagan met with Figueroa and another Walgreens employee and described to them the circumstances of his hospitalization and attempts to notify Walgreens of his absence. After this meeting, Figueroa attempted to verify Pagan‘s account by talking with the Walgreens employees that Pagan claimed that he or his wife had contacted. According to Figueroa, at least one individual that Pagan claimed his wife had contacted had no recollection of the call, and neither of the individuals that Pagan met with on May 17 recalled receiving a medical certificate from him. Accordingly, Figueroa concluded that Pagan had lied to him during the investigation and, again in consultation with the district manager and legal counsel, Figueroa decided to terminate Pagan for his dishonesty—a decision that Walgreens insists was entirely independent of Pagan‘s hospitalization and related absence. Accordingly, on June 6, Pagan was notified that his termination was confirmed, but the basis was changed from his two-week absence to his alleged dishonesty during the investigation.
B. Procedural History
Shortly after his discharge, Pagan and his wife filed a complaint against Walgreens in the United States District Court for the District of Puerto Rico. They raised several claims, including: 1) retaliation under the FMLA, 2) wrongful termination in violation of Puerto Rico Law 80,
At the close of evidence, Walgreens moved for judgment as a matter of law pursuant to
On appeal, Walgreens challenges the district court‘s denial of its Rule 50 and 59(e) motions. With regard to the former, it argues that Pagan presented insufficient evidence at trial to establish its liability under the FMLA. On the latter, it argues that it is entitled to an amended judgment because back pay for overtime is not available under the FMLA and, even if it is, the court‘s award in this case is excessive. In turn, Pagan and his wife have cross-appealed, arguing that the district court erred in denying their request for liquidated damages and in granting Walgreens summary judgment on their Article 1802 and 1803 claims.
II.
A. Rule 50 Motion for Judgment as a Matter of Law
1. Legal Framework
We review the denial of a Rule 50 motion for judgment as a matter of law de novo. Alvarado-Santos, 619 F.3d at 132. In doing so, we view the evidence “in the light most favorable to the verdict and may reverse only if no reasonable person could have reached the conclusion arrived at by the jury.” Id. Thus, “our review is weighted toward preservation of the jury verdict because a verdict should be set aside only if the jury failed to reach the only result permitted by the evidence.” Analysis Group, Inc. v. Central Fla. Invest., Inc., 629 F.3d 18, 22 (1st Cir.2010) (quoting Quiles-Quiles v. Henderson, 439 F.3d 1, 4 (1st Cir.2006)) (internal quotation marks omitted).
Here, the jury had to determine whether Walgreens had retaliated against Pagan for conduct protected by the FMLA. We have previously explained that, among other things, the FMLA prohibits retaliation against employees who take FMLA leave. See Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir.2005). In particular, interpretive regulations provide that
[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example, ... employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.
Thus, to make out a prima facie case of retaliation, a plaintiff must show that: 1) he availed himself of a protected right under the FMLA, 2) he was adversely affected by an employment decision, and 3) there was a causal connection between the protected conduct and the adverse employment action. See Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 113-14 (1st Cir.2006); Colburn, 429 F.3d at 335. Where the plaintiff provides no direct evidence of retaliation, we have relied on the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As we have explained,
[u]nder that framework, a plaintiff employee must carry the initial burden of coming forward with sufficient evidence to establish a prima facie case of ... retaliation. If he does so, then the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee‘s [termination]” .... If the employer‘s evidence creates a genuine issue of fact, the presumption of discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer‘s stated reason for terminating him was in fact a pretext for retaliating against him for having taken protected FMLA leave.
Hodgens, 144 F.3d at 160-61 (quoting McDonnell Douglas, 411 U.S. at 802).
2. Denial of Walgreens’ Rule 50 Motion
Walgreens argues that it provided a valid non-discriminatory reason for Pagan‘s termination and thus, under the McDonnell Douglas framework, it was Pagan‘s burden to show that this stated reason was in fact pretextual. According to Walgreens, Pagan failed to introduce sufficient evidence at trial to permit the jury to find that its stated reason for the termination was false and the real reason was retaliation. This argument is unpersuasive.
Walgreens offered two rationales for Pagan‘s termination. Initially, it determined that Pagan had abandoned his job. After reconsidering its decision, it determined that Pagan should be terminated because of his dishonesty during its investigation. Even if we accept that each of these explanations was, on its face, a valid non-discriminatory reason for Pagan‘s termination, there was sufficient evidence to permit the jury to reject both rationales as pretext.
With regard to Pagan‘s supposed abandonment of his job, Figueroa testified that after learning that Pagan left work to go to the hospital on May 10, he heard nothing about Pagan‘s hospitalization, surgery, or physician-ordered recuperative rest until May 23. However, there was extensive evidence that Pagan put his employer on notice of his condition, including evidence that he: 1) made repeated efforts to contact his employer on the day that he entered the hospital, 2) was in contact with co-workers throughout his hospitalization, 3) went to the store at which he was employed on the day of his discharge and told the most senior manager there that he would be out for another week, 4) provided a certificate from his physician explaining his hospitalization and the need for recuperative rest, and 5) made an effort to determine his work schedule on the day before his week of physician-ordered rest ended.
Furthermore, the fact that Figueroa‘s May 19 letter to Pagan provided
Walgreens’ second explanation—that Pagan was dishonest during its investigation—is similarly susceptible to attack. Although Walgreens points to inconsistencies in Pagan‘s statements and one alleged attempt to persuade a co-worker to cover for him by giving the company a false statement,3 this evidence did not compel a jury to find that dishonesty was the basis for his termination. Importantly, Walgreens presented evidence that the decision to terminate Pagan for dishonesty was based, in large part, on Pagan‘s statement to Figueroa that he gave a co-worker a medical certificate explaining his absence when he visited the store on May 17, and Figueroa‘s inability to find evidence of this hand-off on the security camera footage from that day. However, at trial, Walgreens stipulated that the security camera footage does, in fact, show Pagan giving a document to a co-worker, and no explanation is given for this discrepancy.
Furthermore, Walgreens argued that Pagan initially said he handed the certificate to Colon, the assistant manager he met with that day, when he actually gave it to Santiago, the other employee present at the meeting. Walgreens sees in this inconsistency proof of Pagan‘s dishonesty. But it was reasonable for the jury to conclude that this inconsistency was not proof of dishonesty. More importantly, on this evidence, a reasonable jury could conclude that Walgreens’ explanation that Pagan was dishonest was pretextual.
Finally, Walgreens’ shifting explanations also support the jury‘s verdict. We have noted that “[o]ne way [to establish pretext] is for the plaintiff to show that the employer gave different and arguably inconsistent explanations for taking the adverse employment action.” McDonough v. City of Quincy, 452 F.3d 8, 18 (1st Cir.2006) (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir.2000)) (internal quotation marks omitted). This case is an archetypal example of this phenomenon. Here, Pagan was initially given no explanation for his termination, despite repeated inquiries. By his own persistence, he eventually obtained an explanation that he was terminated because his supervisors had determined that he abandoned his job. Subsequently, after it became clear that Pagan could show that no such abandonment occurred, Walgreens changed the basis for his termination to his supposed dishonesty during its investigation of his two-week absence. The jury could reasonably have deemed these shifting explanations to be a red flag suggesting that Walgreens’ decision to dismiss Pagan was motivated by retaliatory animus.
B. Rule 59(e) Motion to Amend the Judgment
In ordering remittitur, the court determined the amount of Pagan‘s lost wages, including $20,637 in overtime pay. The court calculated the amount of overtime pay that Pagan was due by estimating that he would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment. It obtained the 6.5 hours per week figure by looking to the year-to-date average of Pagan‘s weekly hours during the months prior to his termination (i.e., the period from January 1, 2008, until Pagan‘s termination in May 2008), which was 46.5 hours. However, the parties stipulated that during the 12-month period prior to Pagan‘s termination he had worked an average of 43.5 hours per week. Thus, the court implicitly assumed that the year-to-date average was more reliable than the 12-month average for determining how much overtime Pagan would have worked going forward if he had not been terminated. Walgreens argues that the computation of lost compensation under the FMLA should not include overtime pay, and that, even if it does, the district court should have used the lower estimate of overtime hours based on the 12-month average rather than the year-to-date average.
A district court‘s resolution of a motion to amend the judgment is ordinarily reviewed for abuse of discretion. Negron-Almeda v. Santiago, 528 F.3d 15, 25 (1st Cir.2008). However, abstract questions of law presented by such a motion are reviewed de novo. Id. We have previously held that “[r]eview of the legal principles used by the district court in determining the availability of back pay is de novo.” Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 381 (1st Cir.2004).
1. Availability of Overtime Backpay Under the FMLA
Although we have not previously addressed the issue, we see no reason why overtime pay should not be included in an award of backpay under the FMLA. The FMLA provides that an employee may recover “any wages, salary, employment benefits, or other compensation denied or lost ... by reason of the violation.”
Walgreens offers no authority for the proposition that backpay for overtime is categorically unavailable to a successful FMLA plaintiff. Contrary to its suggestion, the Eighth Circuit did not find in Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir.2000), that overtime backpay was categorically unavailable. Instead, based on the facts of that case, it found that it was too speculative to award. Id. at 384. Accordingly, we decline to read such a limitation into the FMLA where, first, the plain language of the statute suggests that backpay for overtime is available, and, second, such a limitation would be inconsistent with our treatment of violations of other employment laws.
2. The Court‘s Estimate of Pagan‘s Overtime
Whether overtime backpay is categorically available under the FMLA is a question of pure law; in contrast, our review of the amount of the district court‘s award presents a factual question. Accordingly, we review the court‘s decision to calculate Pagan‘s backpay award using the estimate of 6.5 overtime hours per week for clear error. See Hernandez-Miranda v. Empresas Diaz Masso, Inc., 651 F.3d 167, 170 (1st Cir.2011).
As noted, the 6.5 overtime hours per week estimate was based on the year-to-date average of the number of overtime hours per week that Pagan worked in 2008 before his termination. In its written decision denying Walgreens’ Rule 59(e) motion, the court explained that this figure was based on pay stubs admitted into evidence and Pagan‘s trial testimony. It also noted that Walgreens had presented no evidence contrary to its finding that Pagan had worked an average of 46.5 hours per week in 2008 prior to his termination. This year-to-date average included five months of data—a reasonably large sample size—and it was not clear error for the court to assume that this was a more accurate indicator of the number of overtime hours that Pagan would have worked going forward than the 12-month average suggested by Walgreens. Accordingly, we will not disturb the court‘s calculation of the amount of backpay due Pagan.
III.
A. FMLA Liquidated Damages
After the jury rendered a verdict in favor of Pagan, the court denied his request for liquidated damages. The FMLA provides that in addition to lost wages, an employee “shall” recover
an additional amount as liquidated damages equal to [lost wages and interest], except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, [decline to award liquidated damages].
Considering Pagan‘s request for liquidated damages, the court found that, notwithstanding the jury‘s verdict, Walgreens acted in good faith and had reasonable grounds for its termination of Pagan. In reaching this conclusion, the court explained that “for purposes of the case, there‘s two fact finders; there‘s the jury for the liability ... [a]nd then there‘s the judge as a fact finder for purposes of the liquidated damages.” It reasoned that Pagan‘s termination was a “rookie mistake” by Figueroa, who had been a manager for only one month at the time. Furthermore, the court looked to the letter sent to Pagan, Figueroa‘s consultation with legal counsel, the company‘s reconsideration of Pagan‘s termination, and the fact that Pagan received pay for the two weeks he was out as evidence of Walgreens’ good faith.
On appeal, Pagan argues that the court did not have the discretion to deny liquidated damages given the jury‘s verdict. He asserts that the jury necessarily found that Walgreens did not act in good faith in terminating him and that the court was bound by this finding.5 Alternatively, Pagan argues that the court improperly determined that Walgreens acted in good faith and, furthermore, erroneously focused only on good faith, ignoring the second part of the analysis—whether Walgreens had reasonable grounds for believing Pagan‘s termination did not violate the FMLA.
We will not entertain Pagan‘s argument that the district court lacked discretion in this case to deny him liquidated damages because the jury necessarily found that Walgreens did not make its termination decision in good faith. Pagan did not make this argument to the district court. In fact, he acknowledged to the court that he believed that it did have the discretion to make an independent determination of good faith, the jury‘s verdict notwithstanding. At a post-verdict hearing addressing the issue of liquidated damages, the court repeatedly emphasized that it understood there to be “two fact finders” and that it “[could] make a finding of reasonable grounds to terminate, and it would not set aside the jury verdict but it would be for purposes of the liquidated damages provision that I make this finding.” Pagan did not object to this description of the court‘s discretion. In fact, he stated that “it has been our position that this ruling, whether or not you will accept defendant‘s defense against liquidated damages, is something that is left to the sound discretion of the court.” Furthermore, in a post-verdict motion, Pagan explained his decision not to raise the liquidated damages issue by noting that “the [court‘s] decision on the employer‘s affirmative defense to liquidated damages is discretionary in nature.” The motion goes on to repeatedly emphasize that the district court has discretion to deny liquidated damages and never raises the concern that the fact-finding necessary to deny liquidated damages is inconsistent with the jury‘s verdict.6
Accordingly, we turn to Pagan‘s second argument—that, in denying liquidated damages, the district court improperly found that Walgreens acted in good faith and erred by failing to consider whether Walgreens had reasonable grounds for believing Pagan‘s termination to be lawful. We review the district court‘s decision to deny liquidated damages for abuse of discretion. See Chao v. Hotel Oasis, Inc., 493 F.3d 26, 35 (1st Cir.2007) (reviewing decision to award liquidated damages under the
“To establish good faith under the FMLA, a defendant must show that ‘it honestly intended to ascertain the dictates of the FMLA and to act in conformance with it.‘” Thom, 666 F.3d at 977 (quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th Cir.2006)); see also Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 150 (2d Cir.2008) (noting that good faith requires “active steps to ascertain the dictates of the
Here, the transcript of the hearing on liquidated damages belies Pagan‘s assertion that the court did not consider whether Walgreens had reasonable grounds for believing its actions to be lawful. In stating its decision, the court explained: “for purposes of this motion at this time, ... I understand Walgreens acted with reasonable grounds.” Furthermore, although the evidence was mixed, the court‘s finding of good faith and reasonable grounds was not so divorced from the evidence as to constitute clear error.
Figueroa consulted with a Walgreens attorney several times to understand the company‘s legal obligations and obtain guidance in how to proceed. Additionally, Figueroa‘s initial letter to Pagan invited him to apply for disability leave. The company reconsidered its termination decision after Pagan raised the issue with a human resources supervisor. Perhaps most significantly, there was ample evidence of communications breakdowns at the Juana Diaz store that prevented Figueroa and the other managers who made the decision to terminate Pagan from learning of the facts of his hospitalization and absence in a timely manner. For whatever reason, the medical certificate that Pagan provided on May 17 was not passed along to Figueroa, nor was Pagan‘s notice that he would be absent for another week on doctor-ordered recuperative rest. Although it is undisputed that Figueroa was aware of Pagan‘s initial visit to the emergency room, the court could rely on this evidence to conclude that he did not know of the full extent of Pagan‘s illness and was genuinely confused by Pagan‘s two-week absence.
In short, given the high hurdle posed by the clear error standard, Pagan‘s challenge to the court‘s findings is unavailing. See United States v. Matos, 328 F.3d 34, 40 (1st Cir.2003) (noting that, although another fact-finder may have differed, where a finding is plausible there is no clear error).
B. Renta-Bonilla‘s Article 1802 Claim
As noted, Pagan‘s wife, Ada Renta-Bonilla, brought a claim in the same action under Puerto Rico‘s Article 1802,
The district court granted summary judgment for Walgreens on Renta‘s Article 1802 claim. It explained that both of Pagan‘s claims, brought under Puerto Rico Law 80 and the FMLA, entitled a successful plaintiff to recover only monetary losses and not compensation for emotional distress. Therefore, it reasoned, “[b]ecause the statutes which Pagan proceeds under do not provide for an award of general damages, his wife is unable to derive a claim for damages which he him-
self could not receive.” The court noted that another federal district court had previously reached the same conclusion, but provided no other authority or explanation for its decision. On appeal, Renta argues that this conclusion was contrary to our decision in Gonzalez Figueroa and that she was entitled to recover for her emotional distress.
As an initial matter, we note that the court was correct that a plaintiff may not recover damages for emotional distress under the FMLA.10 See Nv. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 739-40 (2003) (“[T]he cause of action under the FMLA is a restricted one: The damages recoverable are strictly defined and measured by actual monetary losses.“). Thus, the question posed is whether the relative of an aggrieved employee may recover damages for emotional distress through a derivative Article 1802 claim where the federal statute under which the aggrieved employee brings his claim does not permit recovery for emotional distress.
Contrary to Renta‘s assertion, this question was not answered by our decision in Gonzalez Figueroa. That case presented similar facts—the family members of an alleged victim of workplace discrimination brought claims under Article 1802 seeking compensation for emotional distress and consequential damages. However, our analysis was limited to whether these claims were time-barred. At the outset,
Unfortunately, neither has the Supreme Court of Puerto Rico decided the issue in any translated case identified by the parties. In Santini Rivera, the court found that family members could bring an Article 1802 claim in circumstances similar to those here and identified the elements of such a claim: “(1) the relatives have allegedly suffered a compensable moral (emotional) harm; (2) the harm was caused by the employer‘s discriminatory treatment of his employee ... in such a way that the impact of the discriminatory treatment received by [the employee] affects [the relatives] and causes them harm; and (3) the employer committed a tortious act.” 137 P.R. Dec. at 11. The court emphasized that the provision was based on general principles of tort liability, explaining that “the sec. 1802 concept of fault is infinitely embracing, as ample and embracing as human conduct is,” id. at 8, and that it permitted recovery for “moral (emotional) harm experienced by the persons related by blood ties or by affection and love to the victim or aggrieved party,” id. at 10.
While Santini Rivera‘s reading of Article 1802 is broad, it is important to note that the principal claim from which the relatives’ claims derived was based on Puerto Rico‘s general employment discrimination statute,
Despite the broad reading of Article 1802 provided by Santini Rivera, subsequent decisions of the United States District Court for the District of Puerto Rico have not permitted family members to recover emotional distress damages through a derivative Article 1802 claim when the statute under which the individual directly harmed brings his claim does not permit such damages. In Barreto v. ITT World Directories, Inc., 62 F.Supp.2d 387 (D.P.R. 1999), the court considered an Article 1802 claim brought by the wife of an individual who alleged dismissal from his employ-
However, these decisions by federal courts are not authoritative statements of Puerto Rico law, and, as far as we can tell, this question remains unresolved by the Supreme Court of Puerto Rico. In light of this uncertainty, we will not encroach on the prerogative of that court by resolving the question ourselves. See VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st Cir.1993) (“Absent controlling state court precedent, a federal court sitting in diversity may certify a state law issue to the state‘s highest court.“).12 Of course, “even in the absence of controlling precedent, certification would be inappropriate where state law is sufficiently clear to allow us to predict its course.” Ropes & Gray LLP v. Jalbert (In Re Engage, Inc.), 544 F.3d 50, 53 (1st Cir.2008). However, if “the existing case law does not provide sufficient guidance to allow us reasonably to predict” how the state‘s courts would resolve the question, the prudent course is to certify the question to that court better suited to address the issue. Id. at 57.
We faced a similar issue concerning the scope of Article 1802 in Muñiz-Olivari v. Stiefel Laboratories, Inc., 496 F.3d 29 (1st Cir.2007). In that case, a former employee and his wife filed a breach of contract suit against the former employer, and both the former employee and his wife sought damages for pain and suffering related to the breach of contract under Article 1802. The appeal required resolution of two unresolved issues of Puerto Rico law: 1) whether a plaintiff could recover damages for pain and suffering in a civil action for breach of contract that involved no claim of violation of anti-discrimination or civil rights laws, and 2) whether such a plaintiff‘s family member, who is not a party to the contract, could recover pain and suffering damages. Id. at 39-40. We decided that the best course was to certify the questions to the Puerto Rico Supreme Court. That is true here as well.13
IV.
For the reasons described, we affirm the judgment of the district court in all respects, save its decision to reject Renta‘s Article 1802 claim. We certify to the Supreme Court of Puerto Rico the questions posed by that claim: 1) When an employee‘s Article 1802 claim is barred because there is a specific federal statutory employment claim, here the FMLA, does the spouse of the employee nevertheless have a cause of action for emotional distress damages under Article 1802 when such relief is not available to the employee under federal law? 2) Does the answer to this question vary depending upon the nature of the underlying federal employment claim? If so, what are the factors to be considered?
The clerk of this court is directed to forward to the Supreme Court of Puerto Rico, under the official seal of this court, a copy of the certified questions and this opinion, along with a copy of the briefs and appendices filed by the parties. We retain jurisdiction pending that court‘s determination.
So ordered.
UNITED STATES of America, Appellee, v. Robert S. CIRESI, Defendant, Appellant.
No. 11-1914.
United States Court of Appeals, First Circuit.
Heard Feb. 8, 2012. Decided Oct. 5, 2012.