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TORRUELLA, Chief Judge. At issue in this appeal is the scope of an exception to Puerto Rico Law 80, 29 L.P.R.A. � 185a, which provides the exclusiveremedy under Puerto Rico law for an employee who is discharged without just cause. In Arroyo v. Rattan Specialties, Inc., 117 P.R. Offic. Trans. 49; 117 D.P.R.35 (P.R. 1986), the Supreme Court of Puerto Rico recognized an exception to Law 80 that applies when an employer’s decision to terminate an employee wasmade in violation of a public policy of constitutional magnitude. The appellee [FOOTNOTE 1] in this case relied on the Arroyo exception to bring a wrongful discharge action. After an adverse jury verdict, the appellant brought this appealarguing that, among other deficiencies in the trial, the district court erred in permitting the appellee’s claim to go forward because her discharge did not implicateher right to privacy as guaranteed by the Constitution of the Commonwealth of Puerto Rico and, thus, her claim should have been barred by Law 80. Because wedisagree with the appellant’s contention that the Arroyo exception should be read narrowly to preclude the appellee’s cause of action, and for the additionalreasons discussed more fully below, we affirm the judgment of the district court. BACKGROUND Viewed in a light most favorable to appellee Migdalia Negr�n, a reasonable jury could have found the following facts. See Consolo v. George, 58 F.3d 791, 792(1st Cir. 1995); Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 759-60 (1st Cir. 1994). Negr�n is a chemist licensed by the College of Chemists as required under the laws of Puerto Rico, and as such, she is bound by a Code of Professional Ethics.See 20 L.P.R.A. �� 492(i), 493. A breach of her duties under the Code could result in revocation of her license. See id. � 492(f). The appellant, Caleb Brett U.S.A., Inc., a Louisiana corporation with its principal place of business in Texas, hired Negr�n in 1990 as the laboratory manager of itsoffice in Bayam�n, Puerto Rico. Caleb Brett provides inspection and laboratory services to clients engaged in commodity transfers. Clients retain Caleb Brett toindependently verify compliance with specifications set forth in the contracts governing the sale of their products. In accordance with Puerto Rico law, see 20L.P.R.A. � 471q, Negr�n would sign and affix her seal to quality certificates to indicate that a product is within the contractual specifications. A sealed certificatewould release a bank to pay the seller’s contract in accordance with the purchaser’s letter of credit. If a product was not within the required specifications — “outof specification” — the buyer and the seller could either reject the product or renegotiate the price. Luis Fortu�o became Negr�n’s direct supervisor in 1993, during a period of dramatic increase in the volume of lab work. In addition to the increased workload, theappellee was often under pressure to rerun lab results that were out of specification. The company received complaints from clients when lab results did not meettheir expectations. In response, management personnel met with Negr�n, but she refused to change or review results that were properly obtained. During 1993-1994, Miriam Estrada, Fortu�o’s secretary, altered approximately 500-600 final certificates that had been signed and sealed by Negr�n. After thealterations, the certificates were either returned to Fortu�o or delivered to clients. On December 7, 1994, Negr�n had a conflict with Norberto Sep�lveda, the Planning and Economics Manager of CAPECO, one of Caleb Brett’s largest clients.Negr�n refused to change a lab result from 10.53, reported in accordance with the American Society of Testing and Materials method, to 10.5 to conform with therequirements of CAPECO’s contract with Vitol. She required that Sep�lveda initial any alteration that he made to the certificate. On December 15, 1994, Negr�n’s employment was terminated. Her personnel file does not include any disciplinary actions and shows that she received salaryincreases each year. She brought this action against the appellant on November 30, 1995 in the United States District Court for the District of Puerto Rico alleging claims under federaland state law. The district court dismissed the federal claim, but the state law claims went to trial under the district court’s diversity jurisdiction. See 28 U.S.C. �1332. During the trial, Caleb Brett moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The district court granted the motion in part, but theremaining claims were submitted to the jury. The jury returned a verdict in favor of Negr�n. Caleb Brett appeals the district court’s denial of its motion forjudgment as a matter of law and challenges the validity of the verdict based on the weight of the evidence, the jury instructions, and alleged evidentiary errorsmade during the course of the trial. DISCUSSION I. JUDGMENT AS A MATTER OF LAW The appellant argues that the district court erred in denying its Rule 50 motion for judgment as a matter of law for two reasons: (1) the court misconstrued theArroyo exception to Law 80; and (2) the evidence was insufficient to support Negr�n’s claim that her dismissal violated her constitutional rights. We reviewquestions of law de novo, but review the sufficiency of the evidence drawing all reasonable inferences in favor of the prevailing party. See Coastal Fuels of PuertoRico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 188 (1st Cir. 1996). On review, we will only set aside a jury verdict if the evidence points “so strongly andoverwhelmingly” in favor of Caleb Brett that a reasonable jury could reach only one conclusion, namely, that Caleb Bret was entitled to judgment. Id. (citingSullivan v. National Football League, 34 F.3d 1091, 1096 (1st Cir. 1994); Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124-25 (1st Cir. 1992)). A. The Scope of the Arroyo Exception The first question before us is whether the district court was correct in its determination that Negr�n’s cause of action for wrongful discharge was not barred byLaw 80. The legislature of Puerto Rico enacted Law 80 to alter the employment-at-will doctrine by providing a statutory remedy for employees terminated withoutjust cause. Although Law 80 is recognized as the exclusive remedy for a wrongful discharge, it is subject to limited exceptions, only one of which is at issue today,the Arroyo exception. See generally Arroyo, 117 P.R. Offic. Trans. 49. In Arroyo, the Supreme Court of Puerto Rico held that Law 80 “cannot operate to deprive the worker of the adequate remedies for effectively vindicating hisconstitutional rights.” Id. at 76. Accordingly, the court concluded that dismissal of an employee who refused to submit to a polygraph test “subverts aconstitutional-ranking public policy.” Id. In reaching this determination, the court explicitly relied on section 1 of the Puerto Rico Bill of Rights, which provides,”[t]he dignity of the human being is inviolable . . . ,” and section 8, which provides, “[e]very person has the right to the protection of law against abusive attacks onhis honor, reputation and private or family life.” See id. at 69 (also discussing sections 7 and 16). Only a few courts have had an opportunity to explore the constitutional policy exception articulated in Arroyo, see, e.g., In re El San Juan Hotel Corp., 149 B.R.263, 273-74 (D.P.R. 1992), aff’d sub nom. Kagan v. El San Juan Hotel & Casino, 7 F.3d 218 (1st Cir. 1993) (unpublished opinion), and the Supreme Court ofPuerto Rico did not directly address the scope of the exception again until 1998 in Segarra Hern�ndez v. Royal Bank of Puerto Rico, No. CE-94-499, slip op.offic. trans., 98 J.T.S. 37 (P.R. April 1, 1998). See also Santiago v. Western Digital Caribe, Inc., No. RE-91-129, slip. op. offic. trans. at 2, 98 J.T.S. 42, at 2 (P.R.Mar. 21, 1996) (referring to Arroyo exception “when the dismissal has the purpose or effect of thwarting or defeating a clear public policy”); Rodr�guez v. PuebloInt’l, Inc., No. RE-93-125, slip. op. offic. trans. at 9 n.11, 135 D.P.R. 500 (P.R. Mar. 18, 1994) (referring to Arroyo exception “when discharge frustrates orsubverts clear public policy, as, for example, those which allow the workers to vindicate their constitutional rights”). In Segarra, the constitutional claim amountedto a charge of harassment based on a series of internal transfers and memoranda that the employee deemed offensive. After reviewing the evidence, the courtheld that her treatment did not rise to the level of a constitutional violation because it did not “involve[] the indiscriminate dissemination of private or personalinformation,” “unreasonably impinge[] on her personal or family tranquility,” “disseminate false or slanderous information,” or “limit Segarra Hern�ndez’s faculty tomake decisions about her private or family life.” Segarra, slip op. offic. trans. at 12. Here, the district court relied on both Arroyo and Segarra in determining that Negr�n could maintain her cause of action under Puerto Rico law because herdischarge implicated a “constitutional ranking public policy.” Negr�n v. Caleb Brett U.S.A. Inc., No. 95-2478, slip op. at 3-4 (D.P.R. May 19, 1999) [hereinafterOpinion] (citing Arroyo, 117 D.P.R. 35, 65-66; Segarra, 98 J.T.S. 37). The court reasoned that Negr�n “was exposed by her employer to a catch 22 situation, thatis, either breach her duty under the code of ethics of her profession and run the risk of losing her license . . . or fight for her principles and still loose [sic] her job.”Id. at 9. The court then concluded that placing an employee in such a precarious position is “against the constitutional right [as guaranteed by the Constitution ofPuerto Rico] of every worker to the protection against risks to their personal integrity in the workplace.” Id. at 10. The appellant contends that the district court improperly construed the constitutional exception, because despite the broad language of Arroyo, subsequent cases,particularly Segarra, have narrowly confined the exception to the core concerns of privacy. However, we find nothing in Segarra that limits the constitutionalpolicy exception in the manner suggested by the appellant. Quite to the contrary, the Supreme Court discusses the exception in the same broad terms as it did inArroyo, referring to the “right of privacy” and “personal dignity,” and “the right to be protected against attacks on the honor and personal reputation.” Segarra, slipop. offic. trans. at 5-7 (discussing sections 1 and 8 of the Puerto Rico Bill of Rights). To support its position, the appellant makes much of Segarra’s discussion of a”zone of individual autonomy” in matters related to personal and family life — for instance use of birth control, obtaining a divorce, protection from defamatorystatements. Id. at 11-12. Indeed, the court used those examples, but solely to illustrate the weakness of Segarra’s claim; by no means did the court confine theArroyo exception to those examples. In fact, the court went on to suggest that under different circumstances a pattern of transfers and internal communicationscould create a climate of harassment that would violate a worker’s constitutional rights, with the caveat that the employee must show “that the employer’s actionsare not related to the normal workplace performance and that they constitute harmful attacks on the plaintiff’s dignity and personal or family integrity.” Id. at 15. Applying the reasoning of Segarra to the case at hand, we conclude, consistent with the appellant’s concession at oral argument, that a chemist’s constitutionalrights to privacy and dignity could be implicated if she were pressured to make illegal alterations to lab reports that would jeopardize her license or subject her tocivil and criminal liability. Such a scenario would distinguish the appellant from an ordinary whistleblower who is terminated in retaliation for reporting illegalactivities of others and has no constitutional protection. See In re San Juan Hotel Corp., 149 B.R. at 273-74 (declining to read Arroyo exception as a general publicpolicy exception to protect whistleblowers). [FOOTNOTE 2] Forcing an employee to choose between her employment and her profession, its code of ethics, and the law, iscertainly a matter of personal integrity, and thus, the district court did not err in its legal determination that Negr�n’s claim is within the constitutional policyexception to Law 80 created by Arroyo. Whether Negr�n’s evidence supports such a claim or shows only that she suffered “[a] mere feeling of uneasiness in theworkplace due to some labor-management situation,” as the appellant contends, is an entirely different question, to which we will now turn. Segarra, slip op. offic.trans. at 14. B. The Sufficiency of the Evidence as a Matter of Law The appellant claims that the evidence is insufficient as a matter of law to establish that the requested alterations were improper or illegal as is required toimplicate Negr�n’s constitutional rights. The appellant hangs its hat on Negr�n’s testimony, which related primarily to the CAPECO/Vitol report. There, Negr�nhad refused to adjust a figure to one decimal point to comply with the contract between the buyer and the seller. The appellant acknowledges that the alterationmay violate the American Standards Manual but argues that it does not rise to the level of a violation of Negr�n’s constitutional right to privacy and integrity. We disagree. Viewing the record in its entirety, we observe ample evidence from which a reasonable jury could infer that Negr�n was frequently pressured toalter test results and certificates and that her repeated refusals ultimately resulted in her termination. Negr�n herself testified that beginning in 1993, Fortu�o askedher to alter results to conform to specifications mandated in customer’s contracts. She explained that an out-of-specification product would have a financial impacton Caleb Brett’s customers. Although Fortu�o testified that he never instructed Negr�n to make alterations, his testimony was refuted by his secretary’s admissionthat she altered 500-600 certificates from 1993-1994 and the testimony of Negr�n’s secretary that she witnessed heated discussions between Fortu�o and Negr�nregarding customers’ preferences. Furthermore, Negr�n’s husband confirmed that Negr�n was distraught about Fortu�o’s requests, and the former president of theCollege of Chemists, Dr. Rodulfo Gauthier, testified that Negr�n consulted him regarding her ethical dilemma. Gautier testified that a chemist is under a duty toreport lab results accurately and he advised Negr�n to consult the Board of Ethics, indicating that her license could be affected. Moreover, a reasonable jury couldhave found that the appellant’s proffered reason for terminating Negr�n — that she had performance problems and was difficult to work with — was pretextual inlight of the absence of disciplinary measures in her personnel file, her consistent salary increases, her positive performance evaluations, and testimony from herco-workers. A jury is entitled to weigh the credibility of the witnesses and could infer that Negr�n had been asked to do something improper or illegal. See Newellv. Rubbermaid, Inc., 20 F.3d 15, 23 (1st Cir. 1994) (citing United States v. Garc�a, 995 F.2d 556, 561 (5th Cir. 1993); Lessee of Ewing v. Burnet, 36 U.S. 41(1837)). Because a reasonable jury could find for Negr�n on this evidence, we conclude that the district court properly denied the appellant’s motion for judgment as amatter of law. See Coastal Fuels, 79 F.3d at 188. II. JURY INSTRUCTIONS The appellant argues that the jury instructions constituted reversible error because they “required the jury to find that any alteration of laboratory results or reportswould have subjected the Plaintiff Negr�n to sanction, however legitimate or appropriate those alterations might have been.” Appellant’s Brief at 42. The targetedportion of the jury charge provided: “if you find that Ms. Negr�n established by a preponderance of the evidence that her dismissal was in violation of public policybecause it was in retaliation for refusing to alter laboratory results, you must find in her favor.” The appellant also takes issue with the special verdict form thatasked only the following question with respect to liability: “1. Was Migdalia Negr�n’s discharge in retaliation for refusing to alter laboratory results and reports?” However, the appellant failed to timely object to the jury charge and the special verdict form. Although it contends otherwise in its brief, the appellant’s pre-chargeobjection, articulated for the record subsequent to an in-chambers conference, is inadequate to preserve the issue for appeal for two reasons. First, it is wellestablished that counsel must object immediately after the jury charge and before the jury retires in order to preserve an objection for appeal. See Faigin v. Kelly,184 F.3d 67, 87 (1st Cir. 1999); Moore v. Murphy, 47 F.3d 8, 11 (1st Cir. 1995); United States v. Nason, 9 F.3d 155, 160 (1st Cir. 1993). In this circuit, we havespecifically held that an objection before delivery of the jury charge does not preserve for review issues relating to the charge. See Nason, 9 F.3d at 160-61. Second, the objection itself was insufficiently specific to satisfy the requirement of Fed. R. Civ. P. 51 that objections must “stat[e] distinctly the matter objected toand the grounds of the objection.” The record reflects that the primary objection articulated by the appellant related to an instruction on discovery rights. After thecourt denied the appellant’s request, the following colloquy took place: Mr. Ramos: . . . we want to make very clear that the charge as will be submitted to the jury has been the subject of discussion and agreement between counsel. Iwould like to clarify, however, we insist in our position that no such cause of action exists in Puerto Rico. The Court: That is a question of law. Mr. Ramos: Yes, but I don’t want this to be construed as any waiver on our part that we have recognized in some phase the existence of some cause of action. Nothing in counsel’s statement articulates the issue now being raised. The appellant did not explain that the proposed jury charge was objectionable because itwould permit a jury to find for the plaintiff even if the requested alterations to lab results were legal and proper, a circumstance that would not affect herprofessional status as a licensed chemist and, thus, would not implicate her constitutional rights. This procedural bar to the appellant’s argument was not cured by the appellant’s contemporaneous objection to the jury charge. After the court finished chargingthe jury, the appellant renewed its request for an instruction on discovery rights, and then added, “[l]astly, we are not waiving any rights to contest the fact that weunderstand there is no cause of action as the jury has been instructed.” Again, the appellant failed to identify the issue that it raises on appeal, namely, that theinstructions and special verdict form are incorrect because they do not distinguish between proper and improper alterations. It is well established that an objectionon one ground does not preserve appellate review of a different ground. See Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 766 (1st Cir. 1996). As CalebBrett fell far short of “stat[ing] distinctly” before the district court the argument it is raising on appeal, it is not preserved. Id. at 767 (quoting Fed. R. Civ. P. 51). As a result, we can quickly dispose of the appellant’s challenge to the jury charge. See Moore, 47 F.3d at 11. Because the appellant failed properly to preserve itsobjections to both the jury instruction and the special verdict form, we review for plain error only. See Cambridge Plating, 85 F.3d at 767; Nason, 9 F.3d at 160-61;see also Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 53 (1st Cir. 1998) (applying same standard to review of special verdict form) (citing CambridgePlating, 85 F.3d at 767); Moore, 47 F.3d at 11 (noting that Rule 51 imposes the same duties of diligence with respect to special verdict forms). Plain error “‘appliesonly where the error results in a clear miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.’” CambridgePlating, 85 F.3d at 767 (quoting Clausen v. Sea-3, Inc., 21 F.3d 1181, 1196 (1st Cir. 1994)). In addition, it is reserved for “the most egregious circumstances.”Moore, 47 F.3d at 11 (citing Poulin v. Greer, 18 F.3d 979, 982 (1st Cir. 1994)); see also Nason, 9 F.3d at 160. In this case, the appellant cannot clear such a highhurdle because, as we discussed more thoroughly above, there was convincing evidence adduced at trial from which a reasonable jury could conclude that Negr�nwas dismissed because she refused to make illegal or improper alterations that would jeopardize her chemist’s license. Thus, Caleb Brett cannot show that amiscarriage of justice resulted from judgment in Negr�n’s favor. [FOOTNOTE 3] See Cambridge Plating, 85 F.3d at 767-68. Nothing before us suggests that the alleged error”seriously affected the fairness or integrity of the trial” bringing it close to an “exceptional case” which might require reversal. Moore, 47 F.3d at 11. III. NEW TRIAL Moving on, we turn to the appellant’s final claim that a new trial is warranted because the verdict was against the weight of the evidence and because a litany ofevidentiary errors were made during the course of the trial. We have given due consideration to the appellant’s claims and find them to be unpersuasive. We givethem cursory treatment as “our time is best reserved for colorable claims.” United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996); accord McIntosh v. Antonino,71 F.3d 29, 37 (1st Cir. 1995). The appellant’s challenge to the weight of the evidence is little more than a reconfiguration of its sufficiency of the evidence argument and meets with the samefate. As discussed more thoroughly above, there was ample evidence to support the jury’s verdict in favor of Negr�n. Especially damaging was the testimony ofEstrada that directly contradicted Fortu�o’s denial that he would ever request alterations of certificates. Likewise, Negr�n’s positive employment historyundermined the appellant’s proffered reason for her dismissal, which in turn suggests a pretextual cover for something illegal or improper. For similar reasons, the evidentiary errors alleged by the appellant, if errors at all, were harmless. The appellee’s use of the existing nondisclosure agreement toexplain the lack of documentary evidence to support Estrada’s testimony may have been confusing, but we find no error in the district court’s refusal to instruct thejury on the duty of the plaintiff to discover evidence, as we are aware of no rule of law that requires the plaintiff to prove her case by documentary rather thantestimonial evidence. Furthermore, any error on the part of the district court in this vein was not prejudicial. “[T]he usual assumption that a party would producedocuments to substantiate its claim wherever possible,” Appellant’s Brief at 49, cuts both ways. With or without the instruction, a reasonable jury could easily inferfrom the defendant’s failure to introduce the certificates to impeach Estrada’s testimony that the certificates were in fact altered. As for the appellant’s argumentrelating to the improper admission of hearsay evidence, the Carnival Exhibit, and the “testimony” of Negr�n’s trial counsel, we are not convinced that any of thealleged errors identified by the appellant affected its substantial rights. See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997). CONCLUSION For the foregoing reasons, judgment in favor of Negr�n is affirmed. :::FOOTNOTES::: FN1 There are actually two appellees in this case, Migdalia Negr�n and her husband; however, her husband’s claim is purely derivative, and thus, we will refer toMigdalia Negr�n as if she were the sole plaintiff and appellee. FN2 Although the appellant emphasizes that this Court affirmed the district court’s judgment, we must clarify that our opinion was unpublished and therefore lacksany precedential value, see 1st Cir. R. 36, and more important, we affirmed on other grounds. Consequently, we take no view as to the validity of El San JuanHotel’s treatment of the Arroyo exception. FN3 While the quoted section of the jury instruction arguably blurs the significance of the distinction between proper and improper alterations, the precedingparagraphs were adequate to convey to the jury that the alterations must be against constitutional policy to impose liability outside of Law 80. The charge read asfollows: Ms. Negr�n asserts that her dismissal was in contravention to public policy because it had the effect of frustrating and violating her constitutional rights. The Bill of Rights of the Constitution of the Commonwealth of Puerto Rico provides that every person has a right of privacy. This right affords every person theprotection to the inviolability of the their dignity and protects them against risks to their personal integrity in the workplace. These are high ranking, fundamental,constitutional rights enforceable against private individuals. Accordingly, every human being has a right to be compensated for damages proximately caused by anemployer who violates them. Any deficiency in clarity is below the level required to constitute plain error.
Negron v. Caleb Brett U.S.A., Inc. United States Court of Appeals For the First Circuit No. 99-1797 MIGDALIA NEGRON, IN HER OWN BEHALF AND AS REPRESENTATIVE OF THE LEGAL PARTNERSHIP;ALFONSO RUIZ, IN HIS OWN BEHALF AND AS REPRESENTATIVE OF THE LEGAL PARTNERSHIP; Plaintiffs, Appellees, v. CALEB BRETT U.S.A., INC., d/b/a INCHCAPE TESTING SERVICES, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gilberto Gierbolini, Senior U.S. District Judge] Before Torruella, Chief Judge, Selya and Lipez, Circuit Judges. John C. Bartenstein, with whom Crystal D. Talley, Ropes & Gray, Guillermo J. Ramos-Lui�a and Rivera, Tulla & Ferrer were on brief, for appellant. Godwin Aldarondo-Girald, with whom Angel X. Viera-Vargas was on brief, for appellees. May 24, 2000
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