
USCA1 Opinion

	




          December 10, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1260                                  CYNTHA J. RESARE,                                Plaintiff, Appellant,                                          v.                               RAYTHEON COMPANY, ETC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert  B. Mann,  with whom  Mann &  Mitchell, were  on  brief for            _______________              ________________        appellant.            Michael  P. DeFanti,  with whom  Douglas  A. Giron  and  Hinckley,            ___________________              _________________       _________        Allen, Snyder & Comen, were on brief for appellee.        _____________________                                 ____________________                                 ____________________        _____________________        *Of the Fifth Circuit, sitting by designation.                      STAHL,  Circuit Judge.   After  a two-day  trial on                              _____________            plaintiff  Cyntha  J.  Resare's  sex  and age  discrimination            claims,  the   district  court  granted   defendant  Raytheon            Company's  motion  for  judgment  as  a  matter  of  law   on            plaintiff's sex  discrimination claims  under both the  Rhode            Island Fair Employment Practices Act ("FEPA"), R.I. Gen. Laws                28-5-1 et seq. (Supp.  1991), and the  Rhode Island Civil                       __ ____            Rights Act  of  1990 ("RICRA"),  R.I.  Gen. Laws     42-112-1            (Supp.  1991).1   During the  trial, the district  court also            ruled   that   evidence  of   compensatory   damages,  absent            corroborating medical testimony,  was not allowed  under R.I.            Gen. Laws   28-5-24(2) (Supp. 1991).  Subsequently, the Rhode            Island legislature amended FEPA in several relevant respects.            Relying upon  these amendments,  plaintiff now  contends that            the  district court's rulings cannot stand.   For the reasons            outlined below, we affirm in part and reverse in part.                                          I.                                          I.                                          __                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      In reviewing a district court's decision to grant a            defendant's  motion for judgment as a matter of law, see Rule                                                                 ___                                            ____________________            1.  The district court denied defendant's motion for judgment            as a matter of  law on plaintiff's age  discrimination claim,            and the jury returned a verdict in favor of the  defendant on            that   claim.     Plaintiff   does   not   contest  the   age            discrimination verdict in this appeal.                                         -2-                                          2            50,  Fed. R. Civ. P.,2 "we  examine the evidence and all fair            inferences  in the  light most  favorable to  the plaintiff."            Richmond Steel  Inc. v. Puerto  Rican American Ins.  Co., 954            ____________________    ________________________________            F.2d 19, 22 (1st Cir. 1992).  To affirm the withdrawal of any            claim from the jury, we  must find that, as a matter  of law,            the record would  permit only one conclusion.   Id.  "We  may                                                            ___            not consider the credibility  of witnesses, resolve conflicts            in testimony, or evaluate  the weight of the evidence."   Id.                                                                      ___            To  warrant submission of an issue to the jury, the plaintiff            must present "more than a mere scintilla" of evidence and may            not  rely on conjecture or  speculation.  Id.   Instead, "the                                                      ___            evidence offered must make  the `existence of the fact  to be            inferred more probable than its nonexistence.'"  Id. (quoting                                                             ___            Carlson v.  American Safety Equip.  Corp., 528 F.2d  384, 386            _______     _____________________________            (1st Cir. 1976)).                                            ____________________            2.  Fed. R. Civ. P. 50(a)(1) provides:                      If  during a  trial by  jury a  party has                      been fully heard with respect to an issue                      and  there  is   no  legally   sufficient                      evidentiary basis for  a reasonable  jury                      to have found for that party with respect                      to  that  issue, the  court  may  grant a                      motion for  judgment as  a matter of  law                      against  that party  on any  claim .  . .                      that cannot under  the controlling law be                      maintained without a favorable finding on                      that issue.                                         -3-                                          3                                         II.                                         II.                                         ___                                      BACKGROUND                                      BACKGROUND                                      __________                      On March  23, 1987,  after having spent  almost ten            years as a United  States government attorney specializing in            the  procurement, termination, and  interpretation of defense            contracts,  plaintiff Cyntha  Resare was  hired by  defendant            Raytheon  Company  ("defendant"  or "company")  to  join  its            Portsmouth,   Rhode   Island,   Submarine  Signal   Division.            Defendant's primary business is the design and manufacture of            sonar devices  and submarine  missile firing controls.   Like            many defense contractors,  defendant experienced a  growth in            business  and in  number  of employees  throughout the  early            1980's.   At  the  time  it  hired plaintiff,  defendant  had            approximately 3,300 employees.                      At  all  relevant times,  plaintiff  worked  in the            Materials  Management  department   of  the  company,   which            contained six  separate subdivisions.3   Plaintiff worked  in            the   Policy  and   Planning  subdivision.     Her  immediate            supervisor  was  Richard  A.  Elliott, the  manager  of  that            subdivision.4  Elliott's immediate  supervisor was Charles F.            O'Donnell,   the   manager   of  the   Materials   Management                                            ____________________            3.  Only  two of  the six subdivisions  are relevant  to this            lawsuit: (1) Subcontracts;  and (2)  Procurement, Policy  and            Planning ("Policy and Planning").            4.  Prior  to serving as the manager  of Policy and Planning,            Elliott  served   for  fifteen   years  as  the   manager  of            Subcontracts.                                         -4-                                          4            department.   O'Donnell  reported  to Barry  R. Steiner,  the            company's manufacturing manager.                      Plaintiff was  hired as a  "Subcontract Specialist"            to assist Elliott.  On the personnel grading scale, plaintiff            was classified as a "salary grade  level 9."  The Policy  and            Planning subdivision  consisted of Elliott, plaintiff,  and a            clerical assistant.  Although  plaintiff worked in Policy and            Planning, her job included overseeing,  working closely with,            and training  employees in several of  the other subdivisions            in the Materials Management  department.  The record reflects            that  plaintiff worked particularly closely with employees in            Subcontracts.5  In addition  to training and overseeing other            employees,   plaintiff   reviewed   numerous  contracts   and            subcontracts  for  compliance  with  government  regulations,            helped  to re-establish  the company's  "certified purchasing            system"  after  it failed  a  government  audit, and  advised            company employees  on  contract negotiation  and  procurement            issues.                      No  one disputes  that plaintiff  was  an excellent            employee.   At her  one-year review, in  March 1988,  Elliott            listed  her strengths:    "(1) exceptional  oral and  written                                            ____________________            5.  In  the Subcontracts subdivision, there were three levels            of  employees: (1)  "Subcontract  Specialists" (salary  grade            level 9);  (2)  "Senior Subcontract  Administrators"  (salary            grade level 8); and (3) "Subcontract  Administrators" (salary            grade  level  7).    According to  defendant,  it  "borrowed"            plaintiff's "Subcontracts Specialist" job  classification and            grade level from the Subcontracts subdivision.                                         -5-                                          5            communications  [skills;]  (2)   effective  human   relations            skills[;] (3)  solid  negotiation skills[;]  (4)  significant            knowledge  and  experience  in  contracting[;  and]  (5) well            developed  teaching  skills[.]"     Following  this   review,            defendant  gave plaintiff  a  raise.   Dissatisfied with  the            amount  of  her  raise, plaintiff  complained  to  O'Donnell,            Elliott's  immediate supervisor.    According  to  plaintiff,            O'Donnell   recommended  speaking  with   Elliott  about  the            possibility  of  receiving  a  promotion  and further  salary            increase through reclassification of her job title.                        Plaintiff  also  testified  that,  during  the same            discussion,  she   informed  O'Donnell  of  her  interest  in            applying for the position of manager of Subcontracts as  soon            as  the  position  became   available.    Evidence  at  trial            revealed,  however,  that  when  that   position  did  become            available,  the company did not  advertise it, no  one in the            company ever approached plaintiff  about applying for it, and            ultimately, the position  was filled  by a man  named Don  M.            Lynch.    Elliott  testified  that  as a  former  manager  of            Subcontracts  and   as  someone   who  worked   closely  with            plaintiff, he considered her qualified for the position.                        At trial, O'Donnell flatly  denied that he had ever            discussed with plaintiff either her dissatisfaction  with her            raise or her interest in the managerial position.  When asked                                         -6-                                          6            whether  he  had  considered  plaintiff   for  the  position,            O'Donnell responded:                      A: No, I did not.                      Q: Why is that?                      A: Because the problem  that I was  faced                      with  was  a  management  problem.    Ms.                      Resare and her  background, in her resume                      and  all my knowledge  of her experience,                      never held the  position of  [s]upervisor                      or  [m]anager.   I  was trying  to fix  a                      management  problem,  and  I   needed  an                      experienced   [m]anager   to  solve   the                      problem.                      Q: Did you consider the fact that she had                      supervised attorneys before?                      A: No, I didn't.                      Q: Did you in  fact before you filled the                      position look at her resume?                      A:  No, as  I mentioned,  I never  really                      gave  her  consideration  because of  her                      lack  of  experience  as a  [m]anager  in                      industry.                      The  following  year,   in  March  1989,  plaintiff            received another positive review.  After this review, her job            classification   was   upgraded  to   "Procurement  Contracts            Advisor,"  which entitled  her to  a "grade  level 10"  and a            substantial  raise.    Despite  the  new  job classification,            plaintiff continued to  do the same type of work she had done            as a Subcontract Specialist.                        Meanwhile, business at  the company was  declining.            In late  fall of  1989, O'Donnell received  instructions from            Steiner, his immediate  supervisor, to  reduce the  Materials                                         -7-                                          7            Management  department  budget  by  "four   or  five  hundred            thousand dollar[s]."  During this first round of budget cuts,            defendant did not consider discharging plaintiff.                       In early January 1990, the company did not "win"  a            contract for which it had  competed, and Steiner decided that            further layoffs  in the Materials Management  department were            necessary.   According to O'Donnell,  in "the first or second            week  of  January[,]"   Steiner  instructed  him  to   reduce            "overhead expense[s]"6 by  approximately $470,000.  O'Donnell            testified that he placed plaintiff's name  on the layoff list            during this second round of budget cuts.7                                              ____________________            6.  The company referred to its expenses as either "overhead"            or  "direct  charge."     This  distinction  operated  as  an            accounting device by which  the company billed the government            for  its  work.   According to  O'Donnell,  an employee  on a            "direct  charge" assignment  was  able to  bill her/his  time            directly to a specific government contract.  In  contrast, an            employee on  an "overhead" assignment could  not bill her/his            time  to  a  specific  contract  but  simply  billed  to  the            "overhead"   budget.     O'Donnell  further   explained  that            employees  were   not  labeled  by  the   company  as  either            "overhead"  or  "direct charge"  employees.     Instead,  the            company had  the discretion, under each  government contract,            to  determine who  did  "direct charge"  billing.   O'Donnell            admitted  that  there was  nothing which  precluded plaintiff            from working on "direct charge" assignments.            7.  In contrast, Steiner testified  that he added plaintiff's                                                     __            name to a layoff list O'Donnell proposed in this second round            of  layoffs.  According  to Steiner, he  decided that Elliott            could  work alone in Policy and Planning, as Elliott had done            prior  to plaintiff's  arrival.   Steiner testified:  "I told            Chuck O'Donnell  that, unfortunately,  even though Cynth  was            doing  an excellent job, we  couldn't afford to  keep her any            longer."   Steiner then  described O'Donnell as  objecting to            Steiner's suggestion  to add  plaintiff's name to  the layoff            _________            list.                                         -8-                                          8                                            ____________________                 When asked a series  of questions at trial about  how he            reached  the  decision that  plaintiff  should  be laid  off,            Steiner  revealed that  he knew  very little  about plaintiff            before allegedly suggesting her name to O'Donnell:                 Q: [O'Donnell]  was the  only person from  whom you                 received input on the question of whether or not to                 keep [plaintiff] on the job, right?                 A: He's a direct report to me, so, yes, sir.                 Q: Before  the decision was made  to terminate her,                 you did not look at her resume at all, did you?                 A: No.                 Q: Did you look at  her job evaluations or anything                 else before the decision was made to terminate her?                 A: No, sir.                 Q:  Did you  ask [O'Donnell]  whether or  not there                 were other people in the Materials Department whose                 termination would save an equal amount of money and                 still allow the same amount of work to be done?                 A: No, I didn't.                 Q:   Did  you  look  at  the  resumes  or  any  job                 performance   papers   or   any   other   documents                 concerning the  work  of either  Mr. Pagliaro,  Mr.                 Roncka,  or   Mr.   Hitchcock  in   the   Materials                 Department?                 A: No, I didn't.                 Q:  Did  you ask  [O'Donnell]  whether  or not  Ms.                 Resare   could  do  the   work  of   a  subcontract                 specialist  as  well  as,  did  you  ask  him  that                 question?                 A: No, sir.                 Q: Did you know whether she  could do the work of a                 subcontract specialist?                 A: I don't believe I did.                                         -9-                                          9                      O'Donnell  testified  that at  some point  after he                                                                 _____            placed plaintiff's  name  on the  list  of layoffs  which  he            presented to Steiner, he sent  a memorandum to Steiner asking            that  his  budget  be  enlarged  so  that  he  could   retain            plaintiff.8   In  this  memorandum, which  was entitled  "The            Senseless  Loss of  a  Unique  Division Resource,"  O'Donnell            detailed  plaintiff's  "outstanding" employment  history with            the company and included the following entreaty to Steiner:                      Having said all of the above, why then is                      Cyntha  Resare  going  to  be  laid  off?                      Because  of  load-to-no-load   accounting                      legerdemain, is there  a reduction in the                      need  for  the   valuable  services   she                      provides?    Is  buyer  training  in  FAR                      regulations,  contract   law  negotiating                      tactics,  ethics,  dispute avoidance  and                      resolution    no    longer     necessary?                      Obviously, the answer to  these questions                      is no.  The plain  truth as to why Cyntha                      Resare is being laid off is that she must                                            ____________________                 Q:  Did you speak with Mr. Elliott about whether or                 not he would be  able to do  all the work that  was                 now being done by Ms. Resare with her separation?                 A: No, I didn't ask him. . . .                 Q:  Did Mr.  O'Donnell  ever discuss  with you  the                 option   of  terminating  someone  instead  of  Ms.                 Resare?                 A: No, I don't recall that he ever did that.                         8.  Steiner testified  that O'Donnell returned to  him "a day            or two after" their meeting with a memorandum requesting that            plaintiff be retained.  When  asked how he would characterize            the degree of support O'Donnell voiced for plaintiff, Steiner            testified: "The degree of support was over and above anything            I have seen from him before.  It was extraordinary because of            the memo he wrote."                                         -10-                                          10                      be included in the body count in order to                      make "the number."  Part of an additional                      $600K  of reduced expenses  on top of the                      $500K  that has already been reduced from                      1989 actuals of controllable costs.                      What  is senseless  about all of  this is                      that you and I both know that despite all                      of the reduced costs, there  is virtually                      no chance that 12.6 percent can be met at                      year end  as more contracts later  in the                      year slip to  the right or are lost.   So                      what have we accomplished?                      We   can  say  truthfully   that  we  followed                      directions   and   took   immediate   massive,                      additional  cost  reductions  (Beyond what  we                      think is reasonable), but AT WHAT PRICE?                      Despite   this   grandiloquent    plea   to    keep            plaintiff,9  plaintiff was laid off  on March 27, 1990, along            with  four  other  employees  in  the   Materials  Management            department.   On February 25, 1991, plaintiff brought suit in            state  court alleging,  inter alia, sex  discrimination under                                    _____ ____            two state  law  causes of  action.   Asserting  diversity  of            citizenship,  defendant removed  the case  to federal  court.            The case was then tried before a jury.                      At trial, plaintiff proffered evidence from which a            jury could  have  concluded that  O'Donnell  harbored  sexist            attitudes.  For example, Elliott testified that O'Donnell was                                            ____________________            9.  O'Donnell did not deny  at trial that, when  asked during            his   deposition  to  detail  the  steps   he  took  to  keep            plaintiff's job, he  failed to mention the January  31, 1990,            memorandum.                                         -11-                                          11            a "sexist."10   When asked  how he  came to  know this  about            O'Donnell,  Elliott stated:  "Well, there was a great deal of            loose talk, much of which described the female anatomy and it            was  detrimental to  women.    So  it  was  my  opinion  that            [O'Donnell's] attitude was highly sexist."   When asked if he            could remember specific examples of O'Donnell's "loose talk,"            Elliott stated:                      A: Well, when referring to a woman by the                      name of  Pat Pelletier,  he, at a  going-                      away function,  he indicated to  her that                      the thing  he would  miss most  about her                      was the  fact that  she had legs  all the                      way to her ass. . . .                      Q:  Do  you remember  any  other specific                      comments   Mr.   O'Donnell   made   about                      specific  women in terms  of, you said he                      made  lots  of   comments,  but  do   you                      remember any other  specific ones he made                      about specific women?                      A:  The only  ones that  I can  recall at                      this point in time  is that he  indicated                      that  a lot of men  wanted to sit next to                      and be next  to Heather MacDonald because                      she had large breasts.                      Pat Pelletier, a  former employee of  the Materials            Management department, testified that after nine and one-half            years of service to the company, she was  honored at a going-            away party with  a speech  by her immediate  supervisor.   In            that  speech, her supervisor thanked her for the work she had            done  and said  that  she would  be  missed by  the  company.                                            ____________________            10.  At  the  time of  trial,  Elliott  reported directly  to            O'Donnell  and had  worked at  the company  for approximately            twenty-three years.                                         -12-                                          12            Following  this speech,  O'Donnell then  made a  few remarks.            When asked what O'Donnell had said, Pelletier testified:                      A:    I    don't   remember    everything                      [O'Donnell]  said.   I just  remember the                      last thing he said.                      Q: What was that?                      A: He said that the thing that they would                      miss most  about Pat were  her legs, they                      were so long they went, nobody knew where                      they ended,  they went  up,  and I  don't                      know what he said after that.                      Q:  And  how  did  you  feel about  those                      comments?                      A:  At   that  particular  time,   I  was                      embarrassed.                      Carol Stewart, a three  year former employee of the            company, also witnessed  and corroborated O'Donnell's  speech            about Pelletier:                      Q: Do you remember what [O'Donnell] said?                      A: Yes, I do.                      Q: What did he say?                      A:  The comment  that  stopped the  party                      cold was that Pat Pelletier  had legs all                      the way from her ass to the ground.                      Plaintiff  corroborated  Elliott's testimony  about            O'Donnell's remarks concerning Heather MacDonald's breasts:                      Q: Who is Heather MacDonald?                      A:  Heather  MacDonald  was  a  buyer  in                      Purchasing  which  is  in  the  Materials                      Department.                      Q:  Did you  ever hear Mr.  O'Donnell say                      anything about Heather MacDonald?                                         -13-                                          13                      A: Yes, sir.                      Q: What did you hear him say?                      A:  I heard  Mr.  O'Donnell make  remarks                      about Heather  to the effect that  he and                      everybody  else liked  to  get  close  to                      Heather  because  Heather had  very large                      breasts.   That's not  the terminology he                      used, but.                      Q: What was the terminology he used?                      A: Boobs.                      Q: How often did you hear him say this?                      A:  I personally  heard him  say that  at                      least twice in public, not in his office,                      just talking to people.                      Heather MacDonald, a former employee who had worked            at the company for  approximately eight years, testified that            she  remembered  O'Donnell  approaching  her  at  a   company            softball game and asking:  "Gee, when are  they going to have            the wet t-shirt contest?"                      O'Donnell denied  that he ever made  comments about            Heather MacDonald's  breasts, and  testified that he  did not            recall making  a speech at Pat  Pelletier's going-away party.            He then  admitted, however, that  he made  the "wet  t-shirt"            comment to Heather MacDonald at a company softball game.                      Plaintiff also testified that she and several other            women  in   the  Materials  Management  department  once  had            requested  that O'Donnell  give them  permission to  attend a            seminar  in  Providence dealing  with  the  general topic  of            professional  women  in business.    According  to plaintiff,                                         -14-                                          14            O'Donnell asked all of the women who had made  the request to            come to  his office.  He  then denied their  request and said            that he wanted to know if "this was a woman's libber movement            or  something" and that he "thought since he had promoted Pat            Pelletier,  that he  showed that  he took  care of  woman all            right . .  . ."   O'Donnell denied  having made the  "woman's            libber"  statement and  testified that  he simply  refused to            allow the women to go to the meeting on company time.                      In addition  to  the evidence  that O'Donnell  made            disparaging and sexist remarks about female employees  within            his department,  there was  also evidence that,  at the  time            plaintiff was  laid off, three  men in Subcontracts  who were            hired after  plaintiff and who had salary  grade levels lower            than  plaintiff's (Mr.  Hitchcock, hired  10/87; Mr.  Roncka,            hired 7/88;  Mr. Pagliaro, hired  11/88) were retained.   The            evidence  showed that plaintiff was  qualified to do the work            of all three of these men and,  in fact, had been supervising            them  prior  to  her layoff.    At  the  time of  plaintiff's            discharge, the monthly salaries of the four employees were as            follows:  (1) plaintiff  $4,860;  (2)  Hitchcock $4,460;  (3)            Roncka $4,475; (4) Pagliaro $4,885.                      Defendant's  explanation  at trial  for plaintiff's            layoff was threefold:  (1) the loss of the  large contract in            early 1990;  (2) the resulting  need to  trim the  "overhead"            budget which,  according to  defendant,  was accomplished  by                                         -15-                                          15            eliminating plaintiff's job but  could not be accomplished by            laying  off  any  one   of  the  three  junior  men   in  the            Subcontracts subdivision; and (3) the company's inability  to            discharge one of the  three men in Subcontracts because  of a            long-standing "no-bumping" policy.11                      After two days of trial, the district court granted            defendant's motion for judgment as a matter of law on both of            plaintiff's sex  discrimination claims.   In so  holding, the            court  ruled  that  plaintiff  failed  to produce  sufficient            evidence of  sex discrimination  under either FEPA  or RICRA.            During  the  trial,  the   district  court  also  ruled  that            plaintiff needed medical evidence of physical injury to prove            her compensatory damages under  FEPA.  This appeal challenges            those rulings.  We address each in turn.                                         III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Motion for Judgment as a Matter of Law on Plaintiff's Sex            A.  Motion for Judgment as a Matter of Law on Plaintiff's Sex            _____________________________________________________________            Discrimination claim under FEPA            Discrimination claim under FEPA            _______________________________                      At  the  outset,  we   note  that  --  despite  the            confusion  in the record over this question -- it is apparent            that plaintiff  brought her FEPA claim  of sex discrimination            under two separate  sections of the statute.  See FEPA    28-                                                          ___                                            ____________________            11.  According   to   defendant,   the  "no-bumping"   policy            prohibits the company from laying off a less  senior employee            with  a specific job classification to make room for a higher            seniority employee with a different job classification.                                         -16-                                          16            5-7(1)(A)-(B);  28-5-7.3.12   As  a  result,  we address  the            viability of plaintiff's FEPA claim under each section.                 1.  Plaintiff's "mixed-motive" claim under FEPA                 1.  Plaintiff's "mixed-motive" claim under FEPA                 _______________________________________________                      In his January 29, 1992, bench ruling, the district            judge withheld plaintiff's claim  of sex discrimination  from            the  jury because  he  found both  that    28-5-7.3  required            "direct evidence"  of sex  discrimination and  that plaintiff            had not presented any such evidence.  Relying upon a recently                                            ____________________            12.  FEPA   28-5-7(1)(A)-(B) provides in relevant part:                      It  shall  be   an  unlawful   employment                      practice  .  . . [f]or any employer . . .                      [t]o refuse  to  hire any  applicant  for                      employment because  of his  or her .  . .                      sex  . .  . or  . .  . [b]ecause  of such                      reason[], to  discharge an employee . . .                      .                 At the time of trial, FEPA   28-5-7.3 provided:                      An   unlawful   employment  practice   is                      established  in  an action  or proceeding                      under this chapter  when the  complainant                      demonstrates that . .  . sex . . .  was a                      motivating  factor   for  any  employment                      practice, even though  such practice  was                      also motivated by other factors.            Borrowing  from federal  law,  we will  refer to  plaintiff's            claim under   28-5-7.3 as her "mixed-motive" claim, and her              28-5-7(1)(A)-(B)  claim as  her "pretext"  claim.   See Price                                                                ___ _____            Waterhouse  v.  Hopkins,  490   U.S.  228,  247  n.12  (1989)            __________      _______            ("Nothing in this opinion  should be taken to suggest  that a            case  must be correctly labeled as either a "pretext" case or            a "mixed-motives"  case  from  the  beginning  in  [d]istrict            [c]ourt; indeed, we expect that plaintiffs often will allege,            in the alternative, that  their cases are both.").   See also                                                                 ___ ____            Newport  Shipyard  Inc.  v.  Rhode Island  Comm'n  for  Human            _______________________      ________________________________            Rights, 484 A.2d 893, 897-98 (R.I. 1984) (acknowledging   28-            ______            5-7(1)  as  the statutory  source  of  a  "pretext" claim  of            discrimination under FEPA).                                         -17-                                          17            enacted amendment to FEPA,  plaintiff argues that this ruling            was  erroneous  and should  be  reversed.13    We agree  with            plaintiff's contention.                      It  is well  settled under  both federal  and Rhode            Island  law   that  where   legislative  intent  as   to  the            retroactivity  of  a  statute  is manifest,  that  intent  is            controlling.   See, e.g.,  Kaiser Alum.  & Chemical Corp.  v.                           ___  ____   ______________________________            Bonjorno,  110  S.  Ct.   1570,  1577  (1990);  Richtmyer  v.            ________                                        _________            Richtmyer, 461 A.2d 409, 411 (R.I. 1983).  Where a statute is            _________            amended while a  case is  on direct review,  and the  statute            dictates that it  shall be applied to "pending"  actions, the            Rhode Island Supreme Court has applied the amended version of            the statute to the case.  See Spunt v. Oak Hill Nursing Home,                                      ___ _____    ______________________            Inc., 509 A.2d 463,  465 (R.I. 1986); Pezzulli v.  State, 494            ____                                  ________     _____                                            ____________________            13.  During  the pendency  of this  appeal, the  Rhode Island            legislature amended   28-5-7.3 in the following manner:                       An  unlawful  employment practice  may be                                                         may be                      established  in  an action  or proceeding                      under this chapter  when the  complainant                      demonstrates that . .  . sex . . .  was a                      motivating  factor   for  any  employment                      practice, even though  such practice  was                      also motivated by other factors.  Nothing                                                        Nothing                      contained  herein  shall be  construed as                      contained  herein  shall be  construed as                      requiring  direct  evidence  of  unlawful                      requiring  direct  evidence  of  unlawful                      intent  or  as  limiting the  methods  of                      intent  or  as  limiting the  methods  of                      proof  of  unlawful employment  practices                      proof  of  unlawful employment  practices                      under section 28-5-7.                         under section 28-5-7.            1992 R.I. Pub.  Laws, ch. 447,   1 (effective  July 14, 1992)            (also  referred  to   as  the  "`mixed-motive'   amendment").            Section 2  of the  "mixed-motive" amendment  further provides            that  it "shall take effect  upon passage and  shall apply to            all pending cases."                                         -18-                                          18            A.2d 540, 542-43  (R.I. 1985);  Richtmyer, 461  A.2d at  411.                                            _________            See also United  States v.  1002.35 Acres of  Land, 942  F.2d            ___ ____ ______________     ______________________            733,  736 (10th Cir. 1991)  ("Where . .  . Congress expressly            provides .  . . that a statute  `shall apply to cases pending            on  or  commenced on  or after  the  date of  the enactment,'            courts  have no choice but to follow its dictates.") ("A case            is a  `pending' one  . .  . if  an appeal  on the merits  was            pending when the [a]mendments were enacted.").                      In light  of these precepts, it is evident that the            amendment  applies  to plaintiff's  claim.    In its  "mixed-            motive" amendment, the Rhode Island legislature made manifest            its intention  that the statute  "shall apply to  all pending            cases."  See  1992 R.I.  Pub. Laws, ch.  447,    2.  As  this                     ___            direct appeal was  pending when the amendment  became law, we            must therefore  give the amendment retroactive  effect.  And,            as  the  amendment  makes  clear, "direct  evidence"  is  not            required in  a "mixed-motive"  sex discrimination case.   See                                                                      ___            1992 R.I. Pub.  Laws, ch. 447,   1.   As such, plaintiff does            not need "direct evidence" to get her claim before a jury.                       Defendant  argues,  however,  that  even  under the            "mixed-motive"  amendment,  plaintiff  did  not  make  out  a            sufficient case of sex discrimination.  We disagree.                        To  make  out a  claim  under  the new  statute,  a            plaintiff  must show  that it  is more  likely than  not that            her/his  sex was "a motivating  factor[,]" see 1992 R.I. Pub.                              _                        ___                                         -19-                                          19            Laws,  ch.  447,    1  (emphasis  supplied),  in the  adverse            employment  decision.    Further,  a  plaintiff  can  satisfy            her/his  initial burden  without  "direct evidence"  that sex                                     _______            animus  entered into the decisional calculus.  See id.  Thus,                                                           ___ ___            in  determining  whether  a "mixed-motive"  claim  survives a            motion  for judgment  as  a  matter  of  law,  a  court  must            determine  whether the  plaintiff  has  put forth  sufficient            evidence  for a jury to conclude that  it is more likely than            not that  the plaintiff's sex  was "a motivating  factor" for            the defendant's employment decision.14                      In  the  instant  case,  plaintiff   presented  the            following evidence in an effort to prove that her  sex was "a            motivating factor" in defendant's  decision to terminate her:                                            ____________________            14.  We note that, when compared  to federal law in existence            prior  to the enactment of the Civil  Rights Act of 1991, the            new Rhode Island statute places fewer obstacles in the way of            a   plaintiff  alleging   a   "mixed-motive"   case  of   sex            discrimination.   Compare 1992 R.I.  Pub. Laws, ch.  447,   1                              _______            with  Price Waterhouse,  490  U.S. at  237-58 (outlining  the            ____  ________________            burden-shifting framework for a  "mixed-motive" claim of  sex            discrimination under  federal  law) (requiring  plaintiff  to            prove that it is more likely than  not that sex animus played            a part  in employment  decision; if plaintiff  satisfies that            burden, the defendant must then prove that it would have made            the same decision absent the sex animus); Jackson v.  Harvard                                                      _______     _______            Univ.,  900  F.2d 464,  467  (1st  Cir.) (interpreting  Price            _____                                                   _____            Waterhouse  as requiring  plaintiff  to  prove  with  "direct            __________            evidence"  that  sex  animus  played  a  part  in  employment            decision), cert. denied, 111 S. Ct. 137 (1990).                         _____ ______                                         -20-                                          20                      (1)  testimony  tending   to  show   that                      O'Donnell  was  the  de  facto  decision-                                           __  _____                      maker;                       (2)  O'Donnell's  admission  that he  had                      "some  discretion"  over  exactly how  to                      reduce his budget;                      (3) O'Donnell's testimony  that he  chose                      to  lay off  plaintiff rather  than three                      less senior  male employees, one  of whom                      had a higher salary than plaintiff;                      (4)   O'Donnell's   testimony   that   he                      selected plaintiff for layoff because she                      was   part   of  his   "overhead"  budget                      (whereas  the  three  less   senior  male                      employees  were  part   of  the   "direct                      charge"  budget),  in  contrast   to  his                      admission, when pressed at trial, that he                      did not know how much of plaintiff's work                      could be categorized as "overhead" and/or                      "direct charge";15                       (5)   O'Donnell's   testimony  that   the                      company's  "no-bumping" policy  precluded                      him  from  laying  off one  of  the  less                      senior male employees in Subcontracts, in                      contrast to other testimony  which showed                      that  plaintiff  was qualified  to assume                      their  responsibilities  and  could  have                      received  the  type  of  "direct  charge"                      assignments  for  which  the   they  were                      responsible;                       (6)  the  testimony of  several witnesses                      that O'Donnell harbored  and was wont  to                      express    sexist   attitudes    in   the                      workplace.16                                            ____________________            15.  In  its brief,  defendant  asserts that  "[t]he  federal            government  would not  pay  for [plaintiff's  position] on  a            direct charge basis."  O'Donnell testified at trial, however,            that he was unaware of any such rule or agreement.            16.  The record also contains  a memorandum dated January 31,            1990, from  O'Donnell to Steiner, which  defendant introduced            at  trial  to  prove  O'Donnell's  commitment  to  plaintiff.            Plaintiff, however, introduced the following evidence to cast                                         -21-                                          21                      Viewing  the sum  total  of this  evidence and  its            reasonable inferences in a light most favorable to plaintiff,            we find  that a jury  could have  concluded that it  was more            likely than not that plaintiff's sex was a motivating  factor                                                     _            in  defendant's  decision to  terminate  her.   We  therefore            reject  defendant's argument  that,  even  under the  "mixed-            motive" amendment,  plaintiff failed to put  forth sufficient            evidence  to withstand its motion for judgment as a matter of            law.17                 2.  Plaintiff's "pretext" claim under FEPA                 2.  Plaintiff's "pretext" claim under FEPA                 __________________________________________                                            ____________________            doubt on the facially exculpatory nature of this memorandum:                       (a)   O'Donnell   allegedly   wrote   the                      memorandum shortly after he had suggested                                         _____                      to  Steiner  that  plaintiff's   name  be                      placed on the list of layoffs;                       (b)  O'Donnell's  hyperbolic  praise  for                      plaintiff   in    the   memorandum,   ("A                      Senseless  Loss  of  a   Unique  Division                      Resource"), stands alone in the record as                                         _____                      evidence that O'Donnell held plaintiff in                      such high esteem (and may be inconsistent                      with his  admitted failure at  an earlier                      time  to give her any consideration for a                      promotion   for   which   her   immediate                      supervisor considered her qualified); and                      (c)  O'Donnell  did not  deny  that, when                      asked  at his  deposition  what steps  he                      took  to retain  plaintiff, he  failed to                      mention the memorandum.             17.  Because we decide this  issue under the recently amended            version  of   28-5-7.3, we  need not address  the question of            whether  a motion  for  judgment  as  a  matter  of  law  was            warranted under the pre-amendment version of the statute.                                         -22-                                          22                      The district court  also ruled  that plaintiff  did            not put  forth sufficient  evidence to make  out a  "pretext"            claim  of   sex  discrimination   under  FEPA.18     For  the            following  reasons,  we disagree  with  the district  court's            decision.                      A   Rhode  Island   plaintiff  alleging   that  sex            discrimination infected an  employer's decision to  discharge            her/him can proceed  under either   28-5-7.3  ("mixed-motive"            theory)  or   28-5-7(1)(A)-(B)  ("pretext" theory).19   While            the  Rhode  Island  legislature  amended     28-5-7.3,   that            amendment does  not appear to alter  the analytical framework            of a  "pretext" claim  under    28-5-7(1)(A)-(B).20   Thus, a            plaintiff whose evidence is insufficient to show that her/his            sex  was  "a  motivating factor"  in  defendant's  employment            decision can attempt to prove her/his case under  a "pretext"            theory  of discrimination.   See generally  McDonnell Douglas                                         ___ _________  _________________            Corp. v. Green, 411 U.S.  792, 802-04 (1973) (explaining  the            _____    _____                                            ____________________            18.  The bench ruling below  does not make clear the  grounds            upon which  the court  relied in granting  defendant's motion            for judgment as matter of law on plaintiff's "pretext" claim.            19.  As we previously noted, oftentimes a  plaintiff alleging            sex discrimination will proceed under both of these statutes.            See supra note 12.            ___ _____            20.  Indeed,  the  amendment's language  highlights  the fact            that a "mixed-motive" theory  of discrimination is merely one            way in  which a plaintiff  can prove "an  unlawful employment            practice."   See  1992 R.I.  Pub.  Laws, ch.  447,    1  ("An                         ___            unlawful employment  practice may be  established . .  . when                                          ___ __            the  complainant demonstrates  that .  . .  sex .  . .  was a            motivating factor . . . .") (emphasis supplied).                                         -23-                                          23            "pretext" burden-shifting framework).  See  also Newport, 484                                                   ___  ____ _______            A.2d at  898-99 (applying  the McDonnell Douglas  to a  claim                                           _________________            under   28-5-7(1)(A)-(B)).                      Under the now familiar McDonnell Douglas tripartite                                             _________________            burden-shifting analysis,  a plaintiff must first  make out a            prima  facie case  of  sex discrimination.   Fields  v. Clark                                                         ______     _____            Univ.,  966 F.2d 49, 51  (1st Cir. 1992),  petition for cert.            _____                                      ________ ___ _____            filed,  61 U.S.L.W. 2047  (U.S. Nov.  9, 1992)  (No. 92-809);            _____            Cumpiano v.  Banco Santander Puerto  Rico, 902 F.2d  148, 153            ________     ____________________________            (1st  Cir. 1990).  The  burden placed on  a plaintiff at this            stage  "is not  onerous."   Fields, 966  F.2d at  51 (quoting                                        ______            Texas Dep't  of Community Affairs  v. Burdine, 450  U.S. 248,            _________________________________     _______            253 (1981)).  In a "reduction in force" case, a plaintiff can            make out a prima facie case by showing that:   (1) s/he is in            the  protected  class;   (2)  s/he   performed  her/his   job            adequately; (3) s/he was  nevertheless dismissed; and (4) the            employer  did not treat  sex neutrally  or that  opposite sex            employees  doing the same or similar work were retained.  Cf.                                                                      ___            Connell v. Bank of Boston, 924 F.2d 1169, 1173 n.5 (1st Cir.)            _______    ______________            (age discrimination),  cert. denied, 111 S.  Ct. 2828 (1991);                                   _____ ______            Schuler  v. Polaroid Corp., 848 F.2d 276, 278 (1st Cir. 1988)            _______     ______________            (same).21                                              ____________________            21.  In assessing  the sufficiency of plaintiff's evidence at            this stage, a court should keep its analytical eye focused on            the   central   inquiry   in  a   disparate   treatment   sex            discrimination  case:  whether  the  employer  treated "`some            people less favorably  than others because of their . . . sex                                         -24-                                          24                      Once  the  prima  facie  case  is  established,  an            inference of  discrimination arises.   Cumpiano, 902  F.2d at                                                   ________            153.  Next, the burden  of production, not persuasion, shifts            to the  defendant to articulate a  plausible, legitimate, and            nondiscriminatory  justification for the  discharge.  Fields,                                                                  ______            966 F.2d at 51;  Ramos v. Roche Products, Inc., 936  F.2d 43,                             _____    ____________________            47 (1st Cir.), cert. denied, 112 S. Ct. 379 (1991); Cumpiano,                           _____ ______                         ________            902  F.2d  at  153.    Once  the  employer  proffers  such  a            justification,  "`the inference  raised by  plaintiff's prima            facie case vanishes.'"   Cumpiano, 902  F.2d at 153  (quoting                                     ________            Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st            ____________    _________________________            Cir.  1990)).  The plaintiff  "must then carry  her burden of            proof by  demonstrating that `the legitimate  reasons offered            by  the defendant  were  not its  true  reasons, but  were  a            pretext for discrimination.'"  Id. (quoting Burdine, 450 U.S.                                           ___          _______            at 253).                           To satisfy  this third  prong, a plaintiff  must do            more   than   simply   cast   doubt   upon   the   employer's            justification.  Ramos, 936 F.2d at 48.  Rather, the plaintiff                            _____            must prove that the  employer's proffered justification was a            pretext  for  sex  discrimination.    Id.;  cf.  Lawrence  v.                                                  ___   ___  ________            Northrup  Corp., No. 92-1702, slip  op. at 6-8  n.1 (1st Cir.            _______________            Nov. 25, 1992) (age  discrimination) (explaining that, at the                                            ____________________            . .  . .'"   Thomas v. Digital  Equip. Corp., 880  F.2d 1486,                         ______    _____________________            1490 (1st Cir. 1989) (quoting Furnco Constr. Corp. v. Waters,                                          ____________________    ______            438 U.S. 567, 577 (1978)).                                         -25-                                          25            final  stage  of McDonnell  Douglas,  a  plaintiff must  come                             __________________            forward  with  "minimally  sufficient  evidence,   direct  or            indirect,   both   of   pretext   and   of   the   employer's                                              ___            discriminatory animus") (emphasis in original).                        To show  pretext, a plaintiff must present evidence            either that a discriminatory reason more likely motivated the            employer or that the employer's justification is questionable            or unworthy of belief.  See Fields, 966 F.2d at 52.  See also                                    ___ ______                   ___ ____            Ramos, 936 F.2d  at 48  ("Pretext can be  exposed in  several            _____            different  ways.  .   .  .     `The  more  idiosyncratic   or            questionable  the employer's reason, the easier it will be to            expose it as pretext,  if indeed it is one.'")  (quoting Loeb                                                                     ____            v. Textron, Inc., 600  F.2d 1003, 1012 n.6 (1st  Cir. 1979));               _____________            Brown v. Trustees  of Boston  Univ., 891 F.2d  337, 347  (1st            _____    __________________________            Cir. 1989) ("To prove  the proffered motive is not  worthy of            belief, evidence of  a comparative sort  is appropriate:   if            others  were hired or  promoted though by  the same reasoning            they  ought to  have  been excluded,  then  the motive  is  a            `pretext.'") (quoting Namenwirth v.  Bd. of Regents, 769 F.2d                                  __________     ______________            1235, 1240  (7th  Cir. 1985),  cert.  denied, 474  U.S.  1061                                           _____  ______            (1986)), cert. denied, 496 U.S. 937 (1990).                       _____ ______                      To  prove the  employer's discriminatory  animus, a            plaintiff is  not required to  come forward with  evidence of            the "smoking gun" variety.  Mesnick v. General Elec. Co., 950                                        _______    _________________            F.2d 816, 824 (1st Cir. 1991),  cert. denied, 112 S. Ct. 2965                                            _____ ______                                         -26-                                          26            (1992).   Rather,  "there  are many  veins of  circumstantial            evidence that may  be mined  by a plaintiff  to this  end[,]"            id.,  including comments  by decision-makers  which denigrate            ___            women.   Cf. id.  (holding that "comments  by decision-makers                     ___ ___            that  denigrate  those  over   forty"  would  be   sufficient            circumstantial evidence  of animus  in an  age discrimination            suit).                      In assessing this evidence, a court must be mindful            that its  role "is not to second-guess the business decisions            of an employer, imposing [its] subjective judgment[] of which            person would  best fulfill the responsibilities  of a certain            job."  Rossy v. Roche Products, Inc., 880 F.2d  621, 625 (1st                   _____    ____________________            Cir.  1989).   "While  an  employer's judgment  or  course of            action may seem poor or  erroneous to outsiders, the relevant            question is simply whether the given reason was a pretext for            illegal discrimination."  Id. (quoting Loeb, 600 F.2d at 1012                                      ___          ____            n.6).   Finally,  before  granting a  defendant's motion  for            judgment as a  matter of law on a  McDonnell Douglas claim, a                                               _________________            court must be satisfied  that no reasonable juror  could find            for plaintiff.  See Richmond Steel, 954 F.2d at 22.                              ___ ______________                      Here,  plaintiff satisfied  her  initial burden  of            making out a prima facie case  of sex discrimination.  She is            a member of  the protected class; the  evidence is undisputed            that plaintiff was performing her job adequately when she was                                         -27-                                          27            laid off in  March 1990;  and, there is  evidence that  males            doing the same or similar work were retained.22                        As  plaintiff  made out  a  prima  facie case,  the            burden of production then  shifted to defendant to articulate            a legitimate, nondiscriminatory justification for discharging            plaintiff.  By coming forward both with evidence of necessary            "overhead" budget  cuts and with evidence  that the company's            longstanding "no-bumping" policy precluded it from laying off            one of  the three less senior male employees in Subcontracts,            defendant more than adequately met that burden.                      The  proof pendulum  then swung back  to plaintiff.            She  was required  to come  forward with  enough evidence  to            expose defendant's articulated justification as a pretext, or            cover-up, for  sex discrimination.   To satisfy  this burden,            plaintiff proffered evidence of  both pretext and sex animus.                                            ____________________            22.  The record reveals that,  until March 1989,  plaintiff's            official  job title  was "Subcontract  Specialist."   At some            point during that month, plaintiff's job title was changed to            a   "Procurement  Contracts  Advisor."    However,  plaintiff            testified that, despite her new job title, her day-to-day job            description remained the same from  the day she started until            the  day  she  was  discharged.    Plaintiff  also  presented            evidence that three less senior male Subcontract Specialists,            whose  jobs she was  qualified to perform,  remained with the            company after  her discharge.  Finally,  evidence was adduced            at trial which suggested  that, although plaintiff was listed            as a  member  of Policy  and  Planning, her  work  frequently            spilled over into Subcontracts.                   We think that the  sum total of this evidence  raises at            least  a question  of fact  about whether  plaintiff and  the            three  less senior male  Subcontract Specialists  retained by            the company  were doing similar work.   In so holding, we are            mindful that the burden  on a plaintiff at this  stage is not            an onerous one.  See, e.g., Fields, 966 F.2d at 51.                                ___  ____  ______                                         -28-                                          28            First,  on the  question  of pretext,  the evidence  revealed            that,  when  making  the  selection  to discharge  plaintiff,            O'Donnell did not  know how much of her time  was spent doing            "overhead" work.   O'Donnell also admitted  at trial that  he            did not research the cost-saving potential of discharging one            of the three less senior and, allegedly less  qualified, male            employees  (including Mr.  Pagliaro, who  notwithstanding his            lower  salary  grade level,  received  a  higher salary  than            plaintiff).   Further,  evidence adduced  at trial  tended to            show  that  the  distinction  between  "overhead"  or "direct            charge"  work was  tied to  specific assignments  rather than            individual  employees, and  that  plaintiff was  at least  as            qualified to do "direct charge" work as the three less senior            male employees  in the  Subcontracts subdivision.   Moreover,            plaintiff's evidence raised at least a question of fact about            whether defendant could have discharged one of the three less            senior men in Subcontracts without violating its "no-bumping"            policy.23       Finally,  on  the  question  of  sex  animus,            plaintiff   proffered   evidence  that   the  decision-maker,                                            ____________________            23.  For  instance, it is  not clear from  the record whether            defendant could  have discharged  Mr.  Pagliaro and  assigned            plaintiff  "direct  charge" work  (that would  have otherwise            been  assigned  to  him) without  violating  its "no-bumping"            policy.   However,  O'Donnell testified  that, had  defendant            discharged Mr. Pagliaro and  retained plaintiff, more "direct            charge" work might have  been available for plaintiff without            a change in her job classification.                                         -29-                                          29            O'Donnell, frequently made  denigrating comments about  women            in the workplace.24                      Reviewing  all of  this  evidence in  a light  most            favorable to plaintiff, we find that a reasonable juror could            reach a verdict for  plaintiff on her "pretext" claim.25   As            a result, we reject defendant's argument that, under either a            "pretext"  or  "mixed-motive" theory  of  sex discrimination,            plaintiff  did not put  forth enough  evidence to  submit her            claim to a jury.              B.  Exclusion of Plaintiff's Evidence of Compensatory Damages            B.  Exclusion of Plaintiff's Evidence of Compensatory Damages            _____________________________________________________________            under FEPA            under FEPA            __________                      Plaintiff  next  challenges  the  district  court's            decision  to exclude her  nonphysical and nonmedical evidence                                            ____________________            24.  As for  the January 31, 1990,  memorandum from O'Donnell            to  Steiner, (which  defendant  offers as  direct proof  that            O'Donnell's  alleged  sexism  could  not  have  infected  his            attitude   toward  plaintiff),   we  have   previously  noted            plaintiff's  attempt to  discredit this  facially exculpatory            memorandum.  See supra note 16.                          ___ _____            25.  In so holding, we are aware that the record is devoid of            direct evidence that O'Donnell's sexism infected his decision            ______ ________            to  select plaintiff  for layoff.   Under  McDonnell Douglas,                                                       _________________            however, a plaintiff is not required to produce "smoking gun"            evidence of the illegal  discrimination.  See, e.g., Mesnick,                                                      ___  ____  _______            950 F.2d  at 824.  Rarely, if ever, in fact, will a plaintiff            employee  have  the  kind  of  direct  evidence  that  would,            unassisted   by   inferences,  raise   the  specter   of  sex            discrimination.   While we find the instant case a close one,            we are satisfied -- after reading the record  in a light most            favorable to  plaintiff --  that plaintiff came  forward with            enough  evidence   on  her  "pretext"   claim  to   withstand            defendant's motion for judgment as a matter of law.                                             -30-                                          30            of  compensatory  damages  under   R.I.  Gen.  Laws     28-5-            24(2).26   Plaintiff's  argument  again rests  upon a  recent            change in the law which, we find, supports her position.                      At the same time that it amended its "mixed-motive"            statute,     28-5-7.3,  the  Rhode  Island  legislature  also            amended   28-5-24(2).  See 1992  R.I. Pub. Laws, ch. 447,   1                                   ___            (effective July  14, 1992).   The  amendment to    28-5-24(2)            added the  following sentence: "The complainant  shall not be            required to prove that  he or she has suffered  physical harm            or physical manifestation  of injury in  order to be  awarded            compensatory damages."  See id.  Further, as with the "mixed-                                    ___ ___            motive" amendment,   28-5-24(2)'s  amendment applies "to  all            pending cases."  See 1992 R.I. Pub. Laws, ch. 447,   2.27                             ___                      Based  upon   the   amendment  to       28-5-24(2),            therefore,  plaintiff does not need evidence of physical harm            to  submit  her claim  for  compensatory damages  to  a jury.            Accordingly,  the district  court's  ruling to  the  contrary                                            ____________________            26.  At  the  time  of trial,  R.I.  Gen.  Laws    28-5-24(2)            provided:                      If   the   commission   finds  that   the                      respondent  has  engaged  in  intentional                      discrimination   in  violation   of  this                      chapter, the  commission . .  . may award                      compensatory  damages.   As used  in this                      section, the  term `compensatory damages'                      shall  not include  back pay  or interest                      thereon . . . .            27.  As  a  result, our  analysis  of  the retroactivity  and            applicability of the "mixed-motive" amendment applies equally            to   28-5-24(2)'s amendment.  See supra pp. 18-19.                                          ___ _____                                         -31-                                          31            cannot stand.28         C.   Motion for Judgment as a  Matter                                    C.   Motion for Judgment as a  Matter                                    _____________________________________            of Law on Plaintiff's Sex Discrimination Claim under RICRA            of Law on Plaintiff's Sex Discrimination Claim under RICRA            __________________________________________________________                      Plaintiff's  final  argument is  that  the district            court erred in granting defendant's motion for  judgment as a            matter of  law on her  sex discrimination claim  under RICRA,            R.I. Gen. Laws    42-112-1 (Supp.  1991) (effective July  10,            1990).29   Defendant responds that, because  the statute does            not apply retroactively to its alleged discriminatory conduct            (which occurred  prior to RICRA's effective  date), we should            affirm  the   district  court's   ruling.    We   agree  with            defendant's argument.30                                            ____________________            28.  Because we decide this issue under the recent amendment,            we  need not  address the  question of  whether the  district            court correctly  interpreted the  version of    28-5-24(2) in            effect at the time of trial.            29.  R.I. Gen.  Laws   42-112-1(a) provides  in relevant part            that:                      All persons within the  state, regardless                      of . .  . sex . . . shall have  . . . the                      same rights to make and enforce contracts                      . . . .              Subsection (b) further explains that:                       [T]he   right   to   "make  and   enforce                      contracts  .  .   ."  shall  include  the                      making,  performance,   modification  and                      termination of  such contracts . .  . and                      the enjoyment of  all benefits, terms and                      conditions of the aforesaid contractual .                      . . relationship[].            30.  In granting defendant's motion  for judgment as a matter            of  law  on  plaintiff's  RICRA  claim,  the  district  court            reasoned  that  plaintiff's  failure  to  come  forward  with            sufficient   evidence  of   sex  discrimination   under  FEPA            precluded  a finding  in her  favor on  her RICRA claim.   On                                         -32-                                          32                      Under Rhode Island  law, statutes  that create  new            substantive rights  "are  presumed to  operate  prospectively            unless it appears  by clear, strong language  or by necessary            implication that the Legislature intended to give the statute            retroactive effect."  VanMarter v. Royal Indem. Co., 556 A.2d                                  _________    ________________            41, 44  (R.I. 1989).   See also  Lawrence v.  Anheuser-Busch,                                   ___ ____  ________     _______________            Inc., 523 A.2d 864, 869 (R.I. 1987) (holding that substantive            ____            statutes "must be construed  to operate prospectively" in the            absence of strong language  to the contrary); Scuncio Motors,                                                          _______________            Inc. v.  Subaru of New  England, Inc., 715  F.2d 10, 12  (1st            ____     ____________________________            Cir.   1983)  ("The  Rhode  Island  cases  consistently  have            required  `clear, strong  language' expressing  an  intent to            give  a substantive  statute  retroactive  effect before  the            presumption of prospective effect may be overcome.") (quoting            State v. Healy, 410 A.2d 432, 434 (R.I. 1980)).            _____    _____                      Unlike the  language  in FEPA,  RICRA  contains  no            "clear,  strong language"  regarding  retroactivity.   In the            absence  of  such  language,  we  must  therefore  apply  the            presumption  of  prospectivity to  this  substantive statute.            See, e.g., VanMarter, 556 A.2d at 44; Lawrence, 523 A.2d 869.            ___  ____  _________                  ________                                            ____________________            appeal, "`[w]e  are . . .  free to affirm  a district court's            decision  on any ground supported  in the record  even if the            issue  was not pleaded, tried or otherwise referred to in the            proceedings  below.'"   Chamberlin v.  101 Realty,  Inc., 915                                    __________     _________________            F.2d  777,  783  n.8  (1st  Cir.  1990)  (quoting  Norris  v.                                                               ______            Lumbermen's Mut.  Casualty Co.,  881 F.2d 1144,  1151-52 (1st            ______________________________            Cir. 1989)).  See also Mesnick, 950 F.2d at 822 (similar).                          ___ ____ _______                                         -33-                                          33            As a result, plaintiff's  claim under RICRA must fail.31   We            therefore  affirm, albeit on  different grounds, the district            court's decision to grant  defendant's motion for judgment as            a matter of law on plaintiff's RICRA claim.                                            ____________________            31.  We note that the fact that plaintiff filed her complaint            after  the  effective  date  of  RICRA  does  not  alter  our            retroactivity analysis,  which hinges instead on  the date of            the actionable conduct.                                         -34-                                          34                                         IV.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  reasons   outlined  above,  the  district            court's decisions to grant defendant's motion for judgment as            a matter of law on plaintiff's sex discrimination claim under            FEPA and  to exclude nonmedical evidence  of her compensatory            damages  are  reversed,  and   its  ruling  with  respect  to                          ________            plaintiff's RICRA claim is affirmed.                                       _________                      This  case is  remanded to  the district  court for                      ___________________________________________________            proceedings consistent with this opinion.            _________________________________________                                         -35-                                          35
