José Alfonso Serrano MUÑOZ, Plaintiff, Appellee, v. SOCIEDAD ESPAÑOLA DE AUXILIO MUTUO Y BENEFICIENCIA DE PUERTO RICO; Hospital Español De Auxilio Mutuo De Puerto Rico, Inc.; Ángel Cocero-Sanchéz; Urbano Rico-Molinero; Ramón Delgado-Ruibal; Moisés Suárez; Valentín Valderrábano; Miguel Echenique; Alfredo Heres; Emilio Torres Antuñano, Defendants, Appellants, Iván Colón; Enrique Fierres; José Isado, Defendants.
No. 08-1887
United States Court of Appeals, First Circuit
January 26, 2012
667 F.3d 49
Heard Nov. 5, 2009.
Enrique J. Mendoza Méndez, with whom Cesar T. Andreu Megwinoff and Alvaro R. Calderon, Jr. were on brief, for appellees.
Before LIPEZ, BALDOCK * and HOWARD, Circuit Judges.
HOWARD, Circuit Judge.
This is a retaliation case under the Age Discrimination in Employment Act of 1967 (ADEA),
I. BACKGROUND1
The hospital is a leading medical facility in San Juan, Puerto Rico. It is owned and operated by defendants Sociedad Española de Auxilio Mutuo y Beneficiencia de Puerto Rico, Inc. (SEAM) and Hospital Español de Auxilio Mutuo de Puerto Rico, Inc. (HEAM).2 In 1978, the hospital hired Serrano as a cardiologist. He rose to become director of the hospital‘s Noninvasive Cardiovascular Laboratory (NICL) and its Invasive Cardiovascular Laboratory (ICL), both of which he had helped establish. Beginning in 1979, Serrano also engaged in private practice in leased office space on the hospital‘s grounds.
In 1997, the hospital relieved Serrano of his directorship of ICL, although his position in NICL remained intact. According to the hospital, it was expanding and modernizing and wanted Serrano to focus on his responsibilities as director of NICL. Serrano concluded that this decision was the result of age discrimination. In 1998, he sued the hospital in local court, but he continued to serve as director of NICL and maintain his private practice.
Previously, Serrano had requested permission from the hospital to acquire an electrocardiography machine for use in his private practice. Miguel Echenique, SEAM‘s executive director, sent Serrano a letter denying that request. According to the letter, the hospital‘s policy, set forth in its lease contracts with doctors, was not to allow individual doctors to keep “expensive equipment which [the hospital] already had and where services were being rendered.” The letter added, however, that the hospital would allow “doctors to have their own equipment for the practice of each speciality in the medical office building which is currently under construction.” In 2001, Serrano moved his practice to the new medical office building, known as Torre Médica. In August 2003, he acquired an electrocardiography machine for use at Torre Médica and began conducting a majority of echocardiograms there rather than referring patients to NICL. By performing the tests at his office, Serrano could bill patients’ insurance companies for test production fees that the hospital otherwise would have collected.
Soon after Serrano acquired the machine, the hospital noticed a decline in the number of outpatient diagnostic tests conducted by NICL. An annual productivity report using statistics prepared by hospital staff revealed that the lab conducted five percent fewer such tests from October 2002 to September 2003 than it had from October 2001 to September 2002, and that, during the 2002-2003 fiscal year, it conducted progressively lower numbers of echocardiograms. HEAM‘s administrator, Iván Colón, ordered a breakdown of the number of echocardiograms performed by each of the hospital‘s cardiologists. Colón concluded that Serrano‘s hospital lab numbers had dropped by the largest percentage, and that the decline correlated with Serrano‘s purchase of the electrocardiography machine for his private practice.
On January 19, 2004, still unaware of the board‘s decision to terminate him, Serrano gave a deposition in connection with the 1998 lawsuit. Among other things, he detailed the hospital‘s alleged acts underlying his discrimination claim. According to Serrano, the deposition was far from cordial and ended in a “heated fashion” over scheduling. The next day Serrano received a terse letter from Colón notifying him that his employment was terminated immediately; the letter did not offer any reason for his termination. At trial Colón explained that he waited to inform Serrano of the board‘s decision because of his own prescheduled vacation soon after the December 29 board meeting. Colón returned in mid January and, unaware of Serrano‘s deposition, chose January 20 to deliver the news based on Serrano‘s light schedule that day.
In 2005, Serrano brought the present action against SEAM, HEAM, and the individual members of HEAM‘s board. During trial the defendants moved orally for JMOL, without success. See
II. DISCUSSION
We begin with the ADEA claim, turn next to Article 1802, and conclude by briefly addressing a few remaining issues.
A. Retaliation under the ADEA
The defendants first argue that their renewed motion for JMOL should have been granted with respect to Serrano‘s retaliation claim under the ADEA. They say that Serrano failed to establish even a prima facie case of retaliation, because there was no evidence of any causal connection between his conduct and his termination. In particular, they observe that the board‘s decision to terminate Serrano predated his 2004 deposition, and contend that the filing of the 1998 lawsuit itself was far too temporally remote. According to the defendants, that conduct could not have contributed to the board‘s decision as a matter of law.
We begin with the basics. In addition to prohibiting age discrimination, the ADEA protects individuals who invoke the statute‘s protections. See
Although the defendants cast their argument in terms of Serrano‘s failure to make out a prima facie case, that is not the correct focus at this juncture. The McDonnell Douglas framework is not a religious rite; it is “merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of [retaliation].” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Once that question “has been submitted to a jury, the burden-shifting framework has fulfilled its function, and backtracking serves no useful purpose.” Sanchez, 37 F.3d at 720; see also U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (“Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.“). Cf. Cumpiano v. Banco Santander P.R., 902 F.2d 148, 155 (1st Cir.1990) (noting the “essential pointlessness” of such backtracking in comparable circumstances). The focus then becomes whether a jury reasonably could have inferred, by a preponderance of the evidence, that Serrano was terminated because of his protected conduct. See
Here, the board decided to terminate Serrano about three weeks before his deposition. The board was unaware of that deposition when it decided to terminate him, and so was Colón when he eventually delivered the news to Serrano. All this was uncontroverted at trial and Serrano does not claim otherwise on appeal. To be sure, Colón‘s dispatch the day after a heated deposition in a lawsuit about the hospital‘s alleged discrimination turned out to be incredibly poor timing. But it is not evidence of retaliation.
Removing that piece of evidence makes this case a much closer call. The defendants say that filing a complaint more than five years before an adverse employment decision, as Serrano did here, is too remote to establish causality. That is true as far as it goes, and if that were the only remaining evidence of retaliation Serrano would have a problem. See id. at 273 (recognizing that temporal proximity, standing alone, must be “very close“); Rodríguez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 84 (1st Cir.2005) (two-month gap too remote); Mesnick, 950 F.2d at 828 (nine-month gap too remote); Oliver v. Digital Equip. Corp., 846 F.2d 103, 110-11 (1st Cir.1988) (thirty-four-month gap too remote). Yet the 1998 filing itself was but one of several pieces of evidence that Serrano presented at trial. When all of these pieces are viewed together and in Serrano‘s favor, they form a mosaic that is enough to support the jury‘s finding of retaliation.
For example, consider Echenique‘s letter concerning the use of specialized equipment. Although it denied Serrano‘s request to have his own electrocardiography machine on hospital grounds, the letter did state in general terms that doctors would be allowed to have their own equipment at Torre Médica. Serrano testified that he later purchased the machine based on his understanding that the letter authorized him to do so once he moved his practice, and the jury was free to interpret the letter in the same way. Yet Echenique himself voted with the rest of the board in favor of Serrano‘s termination, purportedly on the basis that Serrano was competing with the hospital. The jury conceivably could have rejected that non-discriminatory explanation and inferred retaliatory motive. See Reeves, 530 U.S. at 147-49. And that inference appears reasonable in light of other evidence that at least four doctors associated with the hospital had similar equipment in their offices. Although these doctors may not have been situated exactly as Serrano, the fact that he alone was disciplined for common conduct could have suggested to the jury that Serrano was singled out.
Other circumstantial evidence points in a similar direction. Serrano testified at trial that, before he filed the 1998 lawsuit, Echenique told him that if he were to sue the hospital he “would no longer be allowed to work either in that hospital or in any other hospital in Puerto Rico.”5 Although this was an isolated remark made more than five years before Serrano‘s termination, Echenique was part of the collective that ultimately carried out the threat. See Mesnick, 950 F.2d at 828 (circumstantial evidence includes “comments by the employer which intimate a retaliatory mindset“). Serrano further testified that, after he filed the 1998 lawsuit, there was “a record of hostility” and “every month the relations [between the hospital and him] would get colder and colder.” This testimony was vague and Serrano offered little by way of example (one such example was a suggestion that he received an onslaught of “letters” from the hospital administration that interfered with his practice). Still, the jury was free to consider that testimony, for what it was worth, as part of the total package.
All told, the evidence presented at trial was enough to support the jury‘s finding of retaliation. Although that finding was not inevitable on this record, we are not permitted to second-guess the jury‘s assessment.
B. Fault/Negligence under Article 1802
The appellants next contend that the district court should have granted their post-trial motion for JMOL as to Serrano‘s Article 1802 cause of action. See
Whether Serrano‘s Article 1802 claim was time barred need not detain us. Although the appellants did raise this issue at the close of evidence, they failed to assert it in their renewed post-verdict motion. Thus, the argument is unequivocally waived. See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002) (“A party who identifies an issue, and then explicitly withdraws it, has waived the issue.“).
2. Exclusive Remedy Bar
In inverse sequence, the appellants failed to raise the exclusivity argument at the close of evidence, instead reserving its initial articulation for their post-verdict motion.6 We have held in no uncertain terms that such failure to raise an issue prior to a Rule 50(b) motion for judgment as a matter of law, without more, results in a waiver of that issue on appeal. See, e.g., Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir.2006) (adopting plaintiffs’ contention that defendants “ha[d] waived their [argument] by not raising it until their post-trial motion for judgment as a matter of law“); Larch v. Mansfield Mun. Elec. Dep‘t, 272 F.3d 63, 71-72 (1st Cir.2001) (same); see also James W. Moore, 5A Moore‘s Federal Practice 50.08 (2d ed. 1994) (“[A]ny argument omitted from the [Rule 50(a)] motion made at the close of evidence is waived as a ground for judgment under Rule 50(b).“). Moreover, finding a waiver is particularly appropriate under the present circumstances, where the appellants not only failed to timely raise the argument, but also expressly stipulated in a joint proposed pretrial order that Article 1802 negligence was a contested issue of law to be addressed at trial, and filed proposed jury instructions on the Article 1802 claim.
Even were we to deem the appellants’ belated argument forfeited rather than waived, however, we would find no plain error here. See generally United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir.2006) (holding that forfeiture of an argument compels plain error review). We explain briefly.
The crux of the appellants’ exclusivity claim is that, pursuant to Puerto Rico case law, Article 1802—the Commonwealth‘s broad general tort statute—may not be invoked concurrently with special labor laws, which they describe the ADEA and Act 115 as, unless the tortious or negligent conduct alleged under Article 1802 is sufficiently distinct from that covered by the paired employment statute. In support of this argument, the appellants rely principally upon a single unreported district court order, issued after the conclusion of the trial in this case and mere weeks prior to the district court‘s denial of their Rule 50(b) motion. See Rosario v. Valdes, 2008 WL 509204 (D.P.R. Feb. 21, 2008) (unpublished order).
We have held, on rare occasions, that a court‘s failure to recognize and apply, sua sponte, well-established case law can be so “clear or obvious” as to constitute plain error. See, e.g., Chestnut v. City of Lowell, 305 F.3d 18 (1st Cir.2002) (en banc) (per curiam) (holding that a court‘s failure to recognize existing Supreme Court precedent and preclude, sua sponte, the availability of punitive damages for a
While the contested punitive damages issue in Chestnut was known to the court, having been affirmatively raised by the court in the parties’ presence but subsequently ignored, there is no suggestion that the trial court in this case should have known about the preemption argument proposed here. Further, in Chestnut, the issue had been decisively dispatched in a decades-old Supreme Court case; by contrast, the present topic of bar by exclusive remedy had been discussed only in an unpublished district court order issued after the trial had already concluded. Thus, although the District of Puerto Rico has since held that a single tort claim cannot serve as the basis for simultaneous damages under Act 115 and Article 1802, see, e.g., Nieves Perez v. Doctors’ Center Bayamon, No. 09-2212, 2011 WL 1843057, at *7 (D.P.R. May 16, 2011), that case is not an appellate decision, and the issue was far from clear at the time of Serrano‘s trial, see, e.g., Pagan-Alejandro v. PR ACDelco Serv. Ctr., Inc., 468 F.Supp.2d 316 (D.P.R. 2006) (considering an Article 1802 claim concurrently with claims, based on the same conduct, under specific Puerto Rico employment statutes).8
The requirements for plain error are extremely demanding, and “in this circuit, it is rare indeed ... to find plain error in a civil [matter].” Chestnut, 305 F.3d at 20.
3. “Gross Negligence” Standard
We turn next to the appellants’ contention that the jury, pursuant to the court‘s purportedly erroneous instructions, applied a standard of general negligence, rather than the required gross negligence standard, in imposing liability on HEAM‘s board members in their individual capacity. Our cases hold that because this claim was not raised in either of the appellants’ motions for JMOL, it has been effectively waived. See Rodríguez-Garca v. Miranda-Marín, 610 F.3d 756, 766 n. 10 (1st Cir.2010), cert. denied, U.S., 131 S.Ct. 1016, 178 L.Ed.2d 829 (2011); Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir.2008).
Even assuming, arguendo, that this claim was merely forfeited, it is still subject to the plain error test, which in this case is but an alternative path to the same result. To meet the requirements of plain error, the appellants must show (1) an error that was (2) clear or obvious and not only (3) affected the appellants’ substantial rights but also (4) seriously impaired the fairness, integrity, or public reputation of the proceedings—something akin to a miscarriage of justice. United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir.2011). Given the facts underpinning this argument, the appellants cannot hope to meet this stringent standard.
At the close of trial, the appellants requested, in pertinent part, the following jury instructions to be issued on the applicable negligence standard:
Defendants’ Proposed Jury Instruction No. 36 Civil Code of Puerto Rico, Article 1802
The standard of liability for this cause of action is a negligence standard. [...] Negligence under the law of Puerto Rico means failure to use reasonable care which essentially translated into not anticipating and not foreseeing the rational consequences of an act or of a failure to act which a prudent and reasonable person could have foreseen under the same circumstances.
Defendants’ Proposed Jury Instruction No. 37 Fault for Negligence—Defined
Another cause of action filed against the individual defendants ... is a negligence claim. [...] The standard of liability for this cause of action is a negligence standard. [...] Negligence under the law of Puerto Rico means failure to use reasonable care which essentially translates into not anticipating and not foreseeing the rational consequences of an act or of a failure to act which a prudent and reasonable person could have foreseen under the same circumstances.
Thus, refined to its essence, the appellants invite us to find that the court‘s substantial incorporation of their own proposed instructions, rather than issuing, sua sponte, completely divergent gross negligence instructions, constituted at the very least a miscarriage of justice. We decline the invitation. “Where a defendant does not offer a particular instruction, and does not rely on the theory of defense embodied in that instruction at trial, the district court‘s failure to offer an instruction on that theory sua sponte is not plain error.” United States v. Alberico, 559 F.3d 24, 27 (1st Cir.2009). It necessarily follows that where, as here, a defendant not only fails to offer a particular instruction, but proposes an alternative instruction which the court substantially adopts—and the embodiment of which the defendant espoused throughout the trial proceedings—no plain error has occurred.
Article 1802 provides that “[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.”
As with Serrano‘s retaliation claim, a reasonable jury could have found fault or negligence on the part of the board. The board based its decision to terminate Serrano in part on his testimony in a deposition concerning an unrelated property dispute with the hospital; but none of the board members bothered to read the deposition transcript, instead relying on characterizations of Serrano‘s testimony from the hospital‘s lawyer who was present at the deposition (and adverse to Serrano). Moreover, the board never gave Serrano an opportunity to defend himself, despite his twenty-plus years of service and impeccable reputation. Instead, the board had its fiat delivered in a terse and impersonal letter more than three weeks after the fact. Finally, Serrano testified that, as a result of his termination, he experienced anxiety, bouts of depression, and trouble sleeping, all of which was corroborated at trial by Serrano‘s wife. This comprised a sufficient basis for the jury‘s Article 1802 finding.
5. Erroneous Jury Instructions
The appellants’ request for a new trial fares no better. The first proposed ground for a new trial is that all instructions concerning Article 1802 were wrong. That ground, however, is premised entirely on their waived argument that Article 1802 has no place in this case, and in any event it lacks adequate independent development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“). The second ground, somewhat more specific than the first, is that the court improperly instructed the jury on the proximate cause element of Article 1802. We see no material difference, however, between the proximate-cause instruction proposed by the defendants and the one that the court ultimately delivered, and we are satisfied that the court‘s choice of language adequately explained the concept. Accordingly, there was no abuse of discretion. See McDonough v. City of Quincy, 452 F.3d 8, 21 (1st Cir.2006).
C. Remaining Claims
We briefly address the remaining arguments, which pertain mostly to damages.
First, the appellants argue that the jury‘s $1 million compensatory damages award warrants remittitur or, in the alternative, a new trial on damages. “We will not disturb an award of damages because it is extremely generous or because we think the damages are considerably less.” Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir.1999). Rather, “[w]e will only reverse an award if it is so grossly disproportionate to any injury established by the evidence as to be unconscionable as a matter of law.” Id. Here, the award may well have overcompensated Serrano, but in these circumstances we cannot say that it was unconscionable or that the court abused its wide discretion in refusing to disturb the jury‘s calculus. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (abuse of discretion standard).
Third, the appellants challenge the jury‘s finding that the retaliation was willful, resulting in an additional award of $267,400. See
Last, the appellants contest attorneys’ fees, not because $140,000 is unreasonable but rather on the ground any fee award was improper. They recognize that the ADEA authorizes an award of attorneys’ fees to prevailing parties, McKennon v. Nashville Banner Publ‘g Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995); see
For the aforementioned reasons, the judgment is affirmed.