United States Court of Appeals
                     For the First Circuit

No. 10-1639

                   EDNA M. HERNÁNDEZ-MIRANDA,

                      Plaintiff, Appellant,

                               v.

                   EMPRESAS DÍAZ MASSÓ, INC.,

                      Defendant, Appellee.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Siler,* Circuit Judges.


     Francisco M. López-Romo for appellant.
     Anne Noel Occhialino, Attorney, with whom P. David Lopez,
General Counsel, Carolyn L. Wheeler, Acting Associate General
Counsel, and Lorraine C. Davis, Assistant General Counsel, were on
brief, for the Equal Employment Opportunity Commission, amicus
curiae.
     Miguel Simonet Sierra for appellee.



                          June 29, 2011




     *
          Of the Sixth Circuit, sitting by designation.
          LYNCH, Chief Judge.      This appeal raises questions of

first impression for this circuit as to the proper interpretation

of the caps on compensatory and punitive damages under 42 U.S.C.

§ 1981a(b)(3) in a Title VII employment discrimination action.

          The Civil Rights Act of 1991, Pub. L. No. 102-166,

authorized the recovery of previously unavailable types of damages

in Title VII actions involving intentional discrimination. Pub. L.

No. 102-166, § 102; 42 U.S.C. § 1981a(a)(1), (b). These additional

types of damages, which can be awarded by verdict once a violation

of Title VII has been established, were made available subject to

the proviso that they be capped.       The caps range from $50,000 to

$300,000, and turn on how many employees a defendant "has . . . in

each of 20 or more calendar weeks in the current or preceding

calendar year."   42 U.S.C. § 1981a(b)(3).      The question presented

on appeal is whether the "current" calendar year refers to the

calendar year(s) in which the discrimination occurred or the

calendar year in which the damage award is made.

          A jury awarded the plaintiff, Edna Hernández-Miranda,

$300,000 in damages in this Title VII suit alleging intentional

discrimination by her former employer, Empresas Díaz Massó (DM).

Hernández-Miranda   testified   that   during   her   employment   as   a

construction worker, she was forced to perform oral sex on a

supervisor multiple times and was subjected to extreme, continuing

sexual abuse by coworkers and supervisors.      She testified that her


                                 -2-
job with DM was her sole means to support herself and her children,

and that as a result of the mistreatment she sought psychiatric

help.    Hernández-Miranda testified as well that DM ignored her

repeated complaints of sexual harassment.

             The district court reduced the jury award to $50,000

under § 1981a(b)(3)(A), using the year of the award to measure the

number of DM's employees and thereby determine the size of the

applicable statutory cap.        Miranda v. Empresas Díaz Massó, Inc.,

, 438 (D.P.R. 2010).        Hernández-Miranda appeals

this reduction with amicus support from the Equal Employment

Opportunity Commission (EEOC), and we reverse.            We interpret the

statutory phrase "current" calendar year in § 1981a(b)(3) to refer

to the time period of the discrimination.          Because DM has not shown

that    it   had   less   than   200   employees    during   the   years   of

discrimination, we hold that the statutory cap in § 1981a(b)(3)(C)

applies.     We remand with instructions to vacate the judgment of

$50,000 and to enter a compensatory damages award of $200,000.

                                       I.

             Based on more than adequate evidence, the ugly details of

which we do not describe further, the jury issued its award of

$300,000 on August 18, 2008, "to compensate for past, present and

future emotional pain and mental anguish caused by [DM's] conduct,

actions, or omissions."      Hernández-Miranda worked for DM, first as

a laborer and then as a Safety Officer at labor sites, from August


                                       -3-
2003 until her termination in March 2005.             The evidence at trial

established    that    the    clearest        incidents      of   harassment,

discrimination, and abuse occurred in 2004.

          DM   filed   several    motions     after   the    jury's    verdict,

including an August 26, 2008 motion under Rule 59(e) to reduce the

verdict based on § 1981a(b)(3).           This motion asserted that the

current calendar year, for purposes of the damage cap provision, is

the calendar year of judgment.       DM accompanied the motion with an

affidavit signed by its vice-president, which stated that in 2007

DM employed 98 employees and in 2008, the year of the award, DM

employed only 25 employees.       The affidavit made clear that DM's

workforce had shrunk since the period of discrimination, from 241

employees in 2003 and 247 employees in 2004.

          Hernández-Miranda      filed    a   garbled     opposition    to   the

motion to reduce the award.      She argued that DM had failed to offer

evidence at trial concerning how many employees it had, and that

the court had prevented her from doing so.                  Hernández-Miranda

further asserted that DM had recently merged with another company

and that the resulting company had 1,300 employees. She also noted

that there had been testimony at trial that DM at one time had 250

to 300 employers. Hernández-Miranda did not address which of these

numbers should guide the damage cap analysis.1


     1
          Hernández-Miranda does raise this issue of statutory
interpretation on appeal, and we exercise our discretion to excuse
any waiver. See Powell v. Alexander, 

, 21 n.24 (1st Cir.

                                    -4-
              Without     discussion,       the   district      court       assumed    the

relevant time period for determining the damage cap was the time of

the   entry    of   the    verdict    and    reduced   the      award       to    $50,000.

.

                                         II.

              We review a district court's ruling on a motion to alter

or amend the judgment for abuse of discretion, Negrón-Almeda v.

Santiago, 

, 25 (1st Cir. 2008), reviewing questions of

law de novo and questions of fact for clear error, Ungar v.

Palestine     Liberation      Org.,   

,   83    (1st       Cir.    2010).

Questions of statutory interpretation are questions of law and are

reviewed de novo.         United States v. Troy, 

, 35 (1st Cir.

2010).

              Before the Civil Rights Act of 1991, successful Title VII

litigants could receive damages for back pay, limited to the pay

for   the     two   years     prior     to     the   filing      of     a    charge     of

discrimination.         42 U.S.C. § 2000e-5(g)(1).              The 1991 Act newly

made punitive damages available under the statute, as well as

additional forms of compensatory damages: non-pecuniary damages and

future pecuniary damages.             

& (b).                   These new

remedies were made available to Title VII litigants who proved

intentional discrimination, but not Title VII litigants who proved



2004). We do so "in the interests of justice."                   Thomas v. Arn, 

, 155 & n.15 (1985).

                                         -5-
that an employment practice was unlawful only because of its

disparate impact.   

.      The remedies were made

available subject to statutory damage caps.2

          Neither the Supreme Court nor this court has addressed

the meaning of "current" calendar year under § 1981a(b)(3). We are

only aware of three circuits that have done so.      The Fourth and

Fifth Circuits, and, by implication, the Seventh Circuit have

concluded that the "current" calendar year under § 1981a(b)(3) is

the year of discrimination.    Depaoli v. Vacation Sales Assocs.,

LLC, 

, 622 (4th Cir. 2007); Vance v. Union Planters

Corp., 

, 446 (5th Cir. 2000); Hennessey v. Penril

Datacomm Networks, Inc., 

, 1354-55 (7th Cir. 1995).

          In so holding, the Fourth and Fifth Circuits relied in

part on language in 42 U.S.C. § 2000e(b).      That provision limits

the definition of "employer" under Title VII to a person with

fifteen or more employees "in each of twenty or more calendar weeks

in the current or preceding calendar year."    42 U.S.C. § 2000e(b).

The two courts held that the current year under § 2000e(b) is the

year of the discrimination, and that consistent usage dictates that

the current year under § 1981a(b)(3) also be the year of the




     2
          To be clear, the caps do not apply to         the damages
previously available under Title VII. See 42 U.S.C. §   1981a(b)(2).
Nor do they apply to awards pursuant to state           law claims.
Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 

, 65
(1st Cir. 2005).

                               -6-
discrimination.      See 

; 

.

            The    Supreme    Court   has    implicitly   reached   the   same

conclusion about the meaning of "current" calendar year under

§ 2000e(b).       In Walters v. Metropolitan Educational Enterprises,

Inc., 

(1997), the Court applied that provision such

that the "current" calendar year is the year of the discrimination.

& n.*.        This court interpreted § 2000e(b)

in this fashion in Vera-Lozano v. International Broadcasting, 

(1st Cir. 1995).        There, we held that "the 'current year'

. . . as defined by the statute" under § 2000e(b) was the year of

the discrimination.          

(citing Dumas v. Town of Mount

Vernon, Ala., 

, 979 n.4 (5th Cir. 1980)).

                                      III.

            Under settled principles of statutory construction, we

first look to whether the statutory text is plain and unambiguous.

Carcieri v. Salazar, 

, 1063 (2009).            If it is, "we

must apply the statute according to its terms."             

In conducting this analysis, we begin with the ordinary meaning of

the terms as of the time when the statutory provision was enacted.

See 

      To determine ordinary meaning, we may consult

dictionary definitions, interpretations given to the same terms by

judicial construction, and the statutory context in which the words

are used.    See 

language of § 1981a(b)(3) provides:

          The sum of the amount of compensatory damages
          awarded under this section . . . and the
          amount of punitive damages awarded under this
          section,   shall    not  exceed,   for   each
          complaining party--

          (A) in the case of a respondent who has more
          than 14 and fewer than 101 employees in each
          of 20 or more calendar weeks in the current or
          preceding calendar year, $50,000;

          (B) in the case of a respondent who has more
          than 100 and fewer than 201 employees in each
          of 20 or more calendar weeks in the current or
          preceding calendar year, $100,000; and

          (C) in the case of a respondent who has more
          than 200 and fewer than 501 employees in each
          of 20 or more calendar weeks in the current or
          preceding calendar year, $200,000; and

          (D) in the case of a respondent who has more
          than 500 employees in each of 20 or more
          calendar weeks in the current or preceding
          calendar year, $300,000.

42 U.S.C. § 1981a(b)(3).

          The sparse legislative history of the 1991 amendments

reflect that this provision arose from a political compromise

between those who wanted to broaden the availability of damages

under Title VII3 and the Americans with Disabilities Act and those

concerned that an expansion of remedies under these statutes might


     3
          The expansion of Title VII remedies also equalized the
remedies available to Title VII gender discrimination plaintiffs
with those that had previously been available under § 1981 to
racial discrimination plaintiffs. Compare 42 U.S.C. § 2000e-5(g)
with 42 U.S.C. § 1981; see also Bryan Hart, Comment, Burden of
Proof for Employee Numerosity under § 1981a Statutory Damage Caps,
75 U. Chi. L. Rev. 1657, 1661 (2008).

                               -8-
result in frivolous litigation and awards that posed economic

perils to businesses.          This compromise is made clear by the two

primary interpretive memoranda discussing the Act.                  See 137 Cong.

Rec. S15,472-78 (daily ed. Oct. 30, 1991) (statement of Sen. Robert

Dole); 

(statement of Sen. John Danforth).                     The

legislative history does not speak directly to how the phrase

"current   or    preceding     calendar      year"   should    be    interpreted,

however.

           DM argues that the text is plain and that the term

"current" means "presently elapsing" or "occurring in or existing

in the present time."      Merriam-Webster's Collegiate Dictionary 306

(11th   ed.     2003);   see    also   Carcieri,      129     S.    Ct.   at   1064

(interpreting the term "now" in the Indian Reorganization Act). DM

argues that since the caps cannot be applied until there has been

a verdict award, the "current" calendar year must mean the year of

the award.      It also argues that this reading gives effect to a

congressional intent to spare small employers from large awards, as

employers that shrunk in size would be protected from awards capped

on the basis of their size at an earlier date.

           Though DM's plain meaning argument is far from frivolous,

we reject it for several reasons.             In our view, these dictionary

definitions cannot resolve the issue on appeal. The issue turns on

from what point in time one should read the term "current," not on

the abstract meaning of that term.             On its face, the damage caps


                                       -9-
provision does not resolve this question; in our view, it can be

reasonably    construed   in   different     ways.     To   best   effectuate

congressional intent, we look both to the context of the larger

statutory scheme and to how the phrase "current or preceding

calendar year" had been defined elsewhere in the statutory scheme

at the time Congress enacted the 1991 amendments to Title VII.

A.           The Statutory Scheme

             The damages cap applies to the sum of punitive damages

and compensatory damages made available by the 1991 Act. See Hogan

v. Bangor & Aroostook R.R. Co., 

, 1037 (1st Cir. 1995).

The   caps    apply   individually    to    each   party,   see    42   U.S.C.

§ 1981a(b)(3), and are for the court, not the jury, to apply, see

     The statute forbids the court from informing

the jury of the limitations on recovery.           

    From

the legislative history, it is clear that juries are not advised of

the cap to ensure that "no pressure, upward or downward, will be

exerted on the amount of jury awards by the existence of the

statutory limitations." 137 Cong. Rec. S15,484 (daily ed. Oct. 30,

1991) (statement of Sen. John Danforth).             Of necessity, the caps

come into play only after there has been a verdict award.4




      4
          Nonetheless, it is not uncommon for evidence as to the
employer's size to be introduced at trial, as was true in part
here. See, e.g., Hennessy v. Penril Datacomm Networks, Inc., 

, 1354 (7th Cir. 1995).

                                     -10-
           It   is   clear    that     Congress   did    intend   to   protect

employers,   especially      smaller    employers,   from    ruinously   large

awards, and that the size of the employer was used as a rough

measure for the degree of protection needed.                Congress designed

remedies under Title VII to be somewhat proportionate to ability to

pay.   The number of employees a company has serves as a proxy for

this ability.    Smaller employers face smaller penalties; larger

employers face larger penalties.         This general principle, however,

does not dispose of the issue in this case.             Congress, we believe,

intended such protection for those who were small employers at the

time of the discrimination, and not those who by happenstance or

design became smaller employers between the time of discrimination

and the time of the verdict.

           This construction best serves Title VII's purpose of

encouraging resolution of disputes before litigation commences.

This purpose is one reason for the requirement of an EEOC filing

prior to the filing of a lawsuit, see Local No. 93, Int'l Assoc. of

Firefighters, AFL-CIO C.L.C., v. City of Cleveland, 

,

517-18 (1986), and is best advanced by providing clarity and

certainty as to the size of potential damage awards from the outset

of a dispute.   The new types of damages made available in the 1991

Act are inherently more difficult to value precisely than the back

pay damages traditionally available under Title VII, rendering this




                                       -11-
type of clarity and certainty all the more important in allowing

litigants to make informed decisions about settlement.

             Clarity and certainty of potential liability also allows

for both sides to set realistic litigation budgets and evaluate

whether cases are worth bringing and defending.             Such clarity and

certainty allows businesses to set adequate reserves, disclose

those reserves in annual reports as necessary, and make assessments

about    whether    and   how   much   to     insure   against   the   risk   of

litigation.5    It also provides appropriate incentives to employers

to take measures for affirmative defenses under Faragher v. City of

Boca Raton, 

(1998), and Burlington Industries, Inc. v.

Ellerth, 

(1998), should a dispute arise.

             We stress clarity and certainty because only one of the

offered interpretations provides them.            There is no early clarity

or certainty under DM's reading.              When cases get scheduled for

trial is up to the court system, and delay will vary with case

load.      Interpreting the "current" calendar year as the years of

discrimination, by contrast, provides clarity and certainty even

before the lawsuit is filed, and serves the purpose of the 1991 Act

of providing compensatory, but not excessive, awards. In addition,

as   the    Vance   court   sagely      recognized,     using    the   year   of

discrimination prevents employers from "engag[ing] in gamesmanship



     5
          Or at least to insure against the risk of compensatory
damages, as most insurers will not indemnify punitive damages.

                                       -12-
by structuring companies, or timing the progress of lawsuits, to

maximize gain or to minimize loss."             

.

B.          Preexisting Judicial Constructions

            This construction of the statute is supported by pre-1991

judicial constructions of § 2000e(b), the Title VII provision that

also employs the phrase "current or preceding calendar year." Like

the Fourth and Fifth Circuits, we think the meaning of "current"

calendar year under § 2000e(b) is relevant to the meaning of

"current" calendar year under § 1981(a)(b)(3).                See 

; 

.             This parallel provision of

Title    VII,   which   preexisted   the     1991   amendments,     limits     the

definition of "employer" under Title VII to persons with fifteen or

more    employees   during   a   period    of    weeks   in   the   "current    or

preceding calendar year."        42 U.S.C. § 2000e(b).

            DM argues that the identical language in § 2000e(b) and

§ 1981a(b)(3) need not be construed identically because the two

sections operate at different stages of a Title VII case and serve

different purposes.      The § 2000e(b) question comes up at the start

of a case and determines whether a plaintiff has satisfied an

element of stating a claim under Title VII.              See Arbaugh v. Y & H

Corp., 

, 516 (2006).            By contrast, the § 1981a(b)(3)

question comes up at the end of a case and has nothing to do with

whether the plaintiff stated a claim under the Act.             DM argues that

the purpose of § 1981a(b)(3) is to avoid jury verdicts that would


                                     -13-
drive employers into bankruptcy, and argues that this purpose is

best served by its interpretation of that provision.6

            Contrary to DM's assertions, § 2000e(b) and § 1981a(b)(3)

have in common a purpose to prevent ruinous verdicts against small

employers.     In Clackamas Gastroenterology Associates, P.C. v.

Wells, 

(2003), the Supreme Court noted that Congress's

decision to limit the definition of an "employer" in Title VII and

other anti-discrimination statutes to a person with fifteen or more

employees reflected its intent to limit both liability and the

costs of compliance and litigation for very small firms.             

& n.3, 446-47.       It is true that § 1981a(b)(3) provides

protections even for larger employers, but at the very least it

shares a common purpose with § 2000e(b) with respect to small

employers. In addressing larger employers, moreover, § 1981a(b)(3)

effectuates a notion that employers should not be liable for

ruinous   awards   consistent   with   the   narrower   limitation    in   §

2000e(b).

            When Congress passed the Civil Rights Act of 1991, the

phrase "current or preceding calendar year" had been construed in


     6
          DM quotes from comments of Senator Dale Bumpers during
the Senate floor debate prior to passage.      See 137 Cong. Rec.
S15,479 (daily ed. Oct. 30, 1991).      These comments evidence a
concern about protecting small employers, but they do not convey
information about the separate issue of when to measure the size of
an employer. Further, the views of individual members of Congress
are not dispositive on issues of statutory interpretation. See
Posters 'N' Things, Ltd. v. United States, 

, 522 n.12
(1994).

                                  -14-
the Title VII context.           Although there was no Supreme Court

decision on point at the time, there was ample case law construing

"current" calendar year under § 2000e(b) as the year of the

discrimination.     See, e.g., Davis v. W. Cmty. Hosp., 

,

681 (5th Cir. 1986); McGraw v. Warren Cnty. Oil Co., 

,

991 (8th Cir. 1983); 

n.4, overruled on other

grounds by Larkin v. Pullman-Standard Div., Pullman, Inc., 

, 1569 (11th Cir. 1988); Slack v. Havens, 

, 1093

(9th Cir. 1975); see also Komorowski v. Townline Mini-Mart & Rest.,

,   965   (7th   Cir.   1998)   (noting   that   "[c]ourts

consistently have held that the phrase 'current calendar year'

refers to the year in which the alleged discrimination occurred,"

and citing cases, including cases prior to the 1991 Act).

             The understanding of a term employed by Congress is

ordinarily determined as of the time of enactment.         See 

.        Terms "that have acquired a specialized

meaning in the legal context must be accorded their legal meaning."

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human

Res., 

, 615 (2001) (Scalia, J., concurring).          Congress

is presumed to know judicial interpretations of statutory terms as

of the time it amends statutes.      See 

Cannon v. Univ.

of Chicago, 

, 696-98 (1979). In addition, under normal

rules of statutory construction, "identical words used in different

parts of the same act are intended to have the same meaning."


                                    -15-
Dep't of Revenue of Ore. v. ACF Indus., 

, 342 (1994)

(quoting Sorenson v. Sec'y of Treasury, 

, 860 (1986))

(internal quotation marks omitted).

              The fact that Congress used the same terminology in the

1991 amendments as in § 2000e(b) makes it quite likely, under

normal canons of statutory interpretation, that it intended to

adopt   the    year   of   discrimination    as    the    "current"    year   in

§ 1981a(b)(3). As the Fourth Circuit has noted, the two provisions

are   interdependent.       See   

  ("Reading

§§ 1981a(b)(3) and 2000e(b) together, it becomes apparent that the

reason § 1981(b)(3) provides no damage cap for employers with less

than 15 employees is that such employers are presumed to be exempt

from Title VII's requirements by virtue of § 2000e(b).").               Indeed,

if the "current" calendar year under § 2000e(b) referred to the

year of the discrimination and the "current" calendar year under

§ 1981a(b)(3) referred to the year of judgment, employers with more

that fifteen employees at the start of the litigation but less than

fifteen employees at the time of judgment could be liable for

uncapped damages.       See 

     This could not be Congress's

intent given its stated interest in protecting small employers from

ruinous awards.       See 

n.3, 446-47.




                                    -16-
                                      IV.

            Having concluded that the "current" year for purposes of

§ 1981a(b)(3) refers to the year of the discrimination, we may

quickly dispose of two subsidiary issues.

            First, DM makes a mild protest that even under this

construction of § 1981a(b)(3), the damage reduction should be

upheld because there is no definitive evidence of record as to the

number of employees it had at the time of discrimination.               Under

the logic of Concrete Pipe & Products of Cal., Inc. v. Construction

Laborers Pension Trust for S. Cal., 

(1993), however,

it is DM who bears the burden of establishing the prerequisites for

capping the award. Neither the text nor the legislative history of

§ 1981a(b)(3) speaks to who bears the burden of showing the

relevant number of employees, but due process concerns and the

traditional burden of proof dictate that the defendant employer

bear the burdens of production and persuasion on the caps.          See 

            The applicability of the caps is not an element of the

Title    VII    claim.      Instead,     the   defendant     employer   must

affirmatively move to impose the cap and to present relevant

evidence.      Cf. Schaffer ex rel. Schaffer v. Weast, 

, 57

(2005)   (burden    of   persuasion    may   appropriately   be   placed   on

defendant to prove affirmative defenses or exemptions); see also

Mashpee Tribe v. New Seabury Corp., 

, 589 (1st Cir.


                                      -17-
1979)       ("[N]ormally   the   party    asserting   the   affirmative   of    a

proposition should bear the burden of proving that proposition.").

Moreover, the "ordinary rule, based on considerations of fairness,

does not place the burden upon a litigant of establishing facts

peculiarly within the knowledge of his adversary."              

(quoting United States v. N.Y., N.H. & H.R. Co., 

, 256 n.5 (1957)) (internal quotation marks omitted).                  It

is clear that employers are in the best position to establish how

many employees they have at a given time.7

               Second, Hernández-Miranda asks that the case be remanded

to allow reinstatement of the full $300,000 award on the theory

that it can be applied to a pendent claim of discrimination under

Puerto Rican law.          The district court held that this state law

claim had been abandoned pretrial and we agree.

               The judgment is vacated and the case is remanded for

further proceedings consistent with this opinion; to wit, reduction

of the jury award to $200,000.            Costs are awarded to plaintiff.

               So ordered.




        7
          As DM has not introduced any evidence concerning how many
employees it had in 2002, we look only to the evidence it
introduced with respect to 2003 and 2004.

                                         -18-