Muñoz v. Sociedad Española De Auxilio Mutuo Y Beneficiencia De Puerto Rico

• Citation: 114 Fair Empl.Prac.Cas. (BNA) 412,671 F.3d 49
• Decision Date: 26 January 2012
• Docket Number: No. 08–1887.,08–1887.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

114 Fair Empl.Prac.Cas. (BNA) 412

671 F.3d 49

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.

Heard Nov. 5, 2009.Decided Jan. 26, 2012.

Gregory T. Usera, with whom Pedro E. Giner–Dapena and Usera Morell Bauzá Dapena & Cartagena were on brief, for appellants.

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), 29 U.S.C. § 623(d) (2006), and Puerto Rico's general tort statute known as Article 1802, P.R. Laws Ann. tit. 31, § 5141 (2008). In 1998, Dr. José Alfonso Serrano Muñoz sued his employer Auxilio Mutuo Hospital in a Puerto Rico court, alleging that the hospital had discriminated against him because of his age. In 2004, one day after Serrano was deposed in connection with that lawsuit, the hospital terminated his employment. Serrano then brought the present action in federal court, alleging that he was terminated in retaliation for his pending lawsuit and related 2004 deposition testimony. A jury agreed with Serrano and he was awarded nearly $2 million. On appeal, the defendants challenge the denial of their renewed motion for judgment as a matter of law (JMOL) and several other rulings. Although our reasoning differs in certain respects from that of the court below, we affirm.

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 December 29, 2003, Colón presented his findings at HEAM's monthly board meeting. According to the minutes, board members expressed their dissatisfaction that Serrano was competing directly with the hospital by producing his own echocardiograms. The board was further dissatisfied that Serrano had indicated—during a previous deposition in yet another litigation pertaining to an unrelated property dispute with the hospital—that he was not concerned about whether he was diverting production fees from the hospital. During the meeting, Ángel Cocero Sanchéz, the chairman of HEAM's board of directors, added that “Dr. Serrano show[ed] a constant dissatisfaction with the services rendered by the Hospital, and is opposed and openly criticizes—verbally and in writing—all the Hospital's initiatives.” The board then voted unanimously to terminate Serrano's employment “in order not to continue and [sic] putting the Hospital at risk and damaging its best interests.” It designated Colón to deliver the news to Serrano “at the moment he consider[ed] to be best.”

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 Fed.R.Civ.P. 50(a). The jury returned a verdict in favor of Serrano on both his ADEA and Article 1802 claims. It awarded Serrano $1,000,000 in compensatory damages, $267,400 in back pay, and $267,400 in liquidated damages. The defendants then renewed their motion for JMOL and, in the alternative, moved for a new trial. See Fed.R.Civ.P. 50(b), 59(a). The court denied those motions as well. Later the court awarded Serrano $250,979.41 in front pay and $139,906.25 in attorney's fees, bringing his total award to nearly $2 million. This appeal followed.

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 review de novo a district court's denial of a motion for JMOL. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 37–38 (1st Cir.2003). Such review encompasses all of the evidence in the record, but not “evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). That is, we must disregard evidence supporting the moving party unless it is both uncontradicted and unimpeached. Id.; see generally 9B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2529 (3d ed. 2008) (collecting cases and discussing Reeves ). In performing this examination, we draw all reasonable inferences in favor of the nonmoving party and “resist the temptation to weigh the evidence or make our own credibility determinations.” Zachar v. Lee, 363 F.3d 70, 73 (1st Cir.2004). We may reverse the denial of such a motion “only if reasonable persons could not have reached the conclusion that the jury embraced.” Sanchez v. P.R. Oil Co., 37 F.3d 712, 716 (1st Cir.1994).

We begin with the basics. In addition to prohibiting age discrimination, the ADEA protects individuals who invoke the statute's protections. See 29 U.S.C. § 623(d). Where there is no direct evidence of retaliation, we, as do other courts, often follow the familiar McDonnell Douglas framework.³ Under that framework, the plaintiff must first make “a prima facie showing that (i) he engaged in ADEA-protected conduct, (ii) he was thereafter subjected to an adverse employment action, and (iii) a causal connection existed between the protected conduct and the adverse action.” ⁴ Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir.1991). If ...