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Where a plaintiff doctor was awarded nearly $2 million in a retaliation suit, the defendant employer鈥檚 appeal must fail, as the evidence was sufficient to convince a reasonable jury that the termination of the plaintiff was in retaliation for protected conduct.

Affirmed.

Evidence of causality

鈥淚n 1998, Dr. Jose Alfonso Serrano Munoz 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. 鈥�

鈥淭he defendants first argue that their renewed motion for JMOL should have been granted with respect to Serrano鈥檚 retaliation claim under the [Age Discrimination in Employment Act]. 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鈥檚 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鈥檚 decision as a matter of law. 鈥�

鈥淗ere, 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 [administrator Iv谩n] Colon 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, Colon鈥檚 dispatch the day after a heated deposition in a lawsuit about the hospital鈥檚 alleged discrimination turned out to be incredibly poor timing. But it is not evidence of retaliation.

鈥淩emoving 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. 鈥� 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鈥檚 favor, they form a mosaic that is enough to support the jury鈥檚 finding of retaliation.

鈥淔or example, consider [executive director Miguel] Echenique鈥檚 letter concerning the use of specialized equipment. Although it denied Serrano鈥檚 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 Medica. 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鈥檚 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. … 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.

鈥淭he evidence also showed that Serrano had an impeccable reputation earned over more than two decades at the hospital. Serrano said so at trial, and the chairman and sole member of the board to testify, [脕ngel] Cocero [Sanchez], agreed with Serrano鈥檚 characterization. Despite that reputation, however, the board terminated Serrano without giving him an opportunity to defend himself. Serrano suggested that this was a departure from the usual practice, although he made little effort to substantiate that assertion. In all events, the jury was not required to believe that doctors like Serrano were usually terminated so abruptly, and it could have viewed the lapse as further evidence of retaliation. 鈥� Moreover, it became apparent at trial that some of the statistics introduced by the defendants to justify the board鈥檚 decision were created within a few months after that decision had been made. The defendants responded that those statistics were based on figures originally presented to the board, but they did not provide an indisputably convincing explanation for the timing. Although one could search for legitimate reasons, the irregular timing could have suggested to the jury that a cover-up was afoot.

鈥淥ther 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 鈥榳ould no longer be allowed to work either in that hospital or in any other hospital in Puerto Rico.鈥� Although this was an isolated remark made more than five years before Serrano鈥檚 termination, Echenique was part of the collective that ultimately carried out the threat. Serrano further testified that, after he filed the 1998 lawsuit, there was 鈥榓 record of hostility鈥� and 鈥榚very month the relations [between the hospital and him] would get colder and colder.鈥� This testimony was vague and Serrano offered little by way of example (one such example was a suggestion that he received an onslaught of 鈥榣etters鈥� 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.

鈥淎ll told, the evidence presented at trial was enough to support the jury鈥檚 finding of retaliation. Although that finding was not inevitable on this record, we are not permitted to second-guess the jury鈥檚 assessment.鈥�

Serrano Munoz v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, et al. (Lawyers Weekly No. 01-028-12) (26 pages) (Howard, J.) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 08-1887)