Where a plaintiff doctor was awarded nearly $2 million in a retaliation suit, the defendant employer’s 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

“In 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. …

“The defendants first argue that their renewed motion for JMOL should have been granted with respect to Serrano’s 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’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. …

“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 [administrator Iván] 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’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. … 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 [executive director Miguel] 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 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’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. … 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.

“The 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, [Ángel] Cocero [Sanchez], agreed with Serrano’s 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. … Moreover, it became apparent at trial that some of the statistics introduced by the defendants to justify the board’s 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.

“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.’ 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. 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.”

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)

The post Employment Retaliation (1st U.S. Circuit Court of Appeals) appeared first on Daily Journal of Commerce.

Effective Date

Fowlkes v. Thomas

10-5192

Judges Sack, Katzmann and Parker

Background: The plaintiff appealed from a judgment that denied his post-judgment motion for an order directing the Social Security Administration to re-tender a check for retroactive supplemental Social Security benefits that he is owed. The plaintiff was incarcerated when he commenced an action alleging his supplemental Social Security benefits had been improperly suspended.

Ruling: The Second Circuit affirmed. The court held that the Social Security Administration was barred by the No Social Security Benefits for Prisoners Act from tendering payment to the plaintiff while he remained incarcerated, even though the underlying obligation to pay arose before the act’s enactment.

Felipe Oteze Fowlkes, pro se; Kristan Cohn, United States attorney, for the defendants-appellants

The post No Social Security Benefits for Prisoners Act (U.S. Court of Appeals for the 2nd Circuit) appeared first on Daily Journal of Commerce.

(Editor’s note: This piece originally ran in the June 2, 2011, issue of the Briefly Legal PDX e-newsletter)

In March 2011, the 91��Ƶ held its first Leadership in Law awards as a way to recognize local attorneys with more than 10 years of experience. And while the profiles we wrote at the time for each of them were interesting, we felt they left us wanting to know a little more about what really makes these legal leaders tick.This week, we talk to Ed Harnden, a managing partner at Barran Liebman in Portland.

Briefly Legal: What is one of the most amusing or unusual memories you have from law school?

Ed Harnden: While in my first year of law school in New York City, I was tutoring several youngsters in a Harlem housing project as a part of a legal aid clinic assignment. The discussion turned to the “legal” way to make another kid return property that he had taken. My advice was to first ask for its return, and then to go to the principal if that didn’t work.  This was met with great laughter and derision. I was told by one of fifth-grade kids in the group that the answer was much more direct: You just point a gun directly at the person’s more sensitive region and you would get results. He then quickly retrieved a gun from under his sweatshirt to show me (respectfully, he said, since I grew up on a farm) how to do it. They all then decided they had better walk me back to the subway for my ride back to campus because I obviously did not know how to protect either myself or my possessions. Tutors and teachers are very underpaid.

BL: If you could choose a fantasy career that is totally different from practicing law, what would it be?

Harnden: Even with my experiences as a tutor in college and law school, teaching would be at the top of my list. However, my daughter (who is a fantastic fifth-grade teacher) suggests that I think it would be great because I have in mind a class of 10 students (rather than the 35 she has), all of whom would hang on every brilliant word that I impart (she maintains that she is still waiting for one of them) about history and literature. So I guess it is back to fantasizing about being six feet tall and 21 years old again.

BL: In your opinion, what is the best legal movie or novel ever?

Harnden: “To Kill a Mockingbird” because of the force of a lawyer rising above the naked racism of the time to defend what was then an “undesirable” (at least in the minds of the “majority”). I suppose I also always wanted to play the role of Atticus Finch in real life, or at least be able to try a case as well as Gregory Peck.

That is followed closely by “12 Angry Men.” What lawyer among us doesn’t hope that there is a lone juror that we have convinced of our cause through our oratorical brilliance, who then stands up to the rest of the unknowing. Unfortunately, it is usually that there is such a juror who we have left to figure it out for himself/herself due to our not having figured it out, and then to carry the day for us. In addition, I look exactly like Henry Fonda.

The post 3 Questions: Ed Harnden channels Atticus Finch appeared first on Daily Journal of Commerce.

(Editor’s note: This piece originally ran in the May 26, 2011, issue of the Briefly Legal PDX e-newsletter)

In March of 2011, the 91��Ƶ held its first Leadership in Law awards as a way to recognize local attorneys with more than 10 years of experience. And while the profiles we wrote at the time for each of them were interesting, we felt they left us wanting to know a little more about what really makes these legal leaders tick.This week, we talk to David Markowitz, a shareholder at Markowitz, Herbold, Glade & Mehlhaf in Portland.

Briefly Legal: What is one of the most amusing or unusual memories you have from law school?

David Markowitz: I was fortunate as a third-year law school student, to be hired as a staff attorney to the Nevada Supreme Court in Carson City. I would commute to Carson City from Sacramento four days per week. I would spend four days a week clerking for the Nevada Supreme Court and four nights a week gambling at Cactus Jack’s Casino, perfecting my hold ‘em poker skills and fleecing tourists. It was a great year.

BL: If you could choose a fantasy career that is totally different from practicing law, what would it be?

Markowitz: In the movie “10,” Brian Dennehy plays a bartender working in a hut at an idyllic beach resort in Acapulco, where he serves up advice and cocktails for the guests. I want that job.

BL: In your opinion, what is the best legal movie or novel ever?

Markowitz: The movie “12 Angry Men.” It’s a wonderful movie.

The post 3 Questions: David Markowitz knows when to hold ’em appeared first on Daily Journal of Commerce.

(Editor’s note: This piece originally ran in the May 12, 2011 issue of the Briefly Legal PDX e-newsletter)

(From left) Ava Ciccarello, 10, of Portland, and Abby Fellows, 10, of Happy Valley, receive tips from Multnomah County Circuit Court Judge Julie Frantz before taking the bench for a mock trial in Frantz’ courtroom on April 28. The girls were part of a group of 200 elementary students from throughout the Portland metro area that participated in Take Your Child to Work Day at the Multnomah County Courthouse. The courthouse event was organized by Oregon Women Lawyers and the Multnomah County bench. (Photo by Sam Tenney)

Edwin A Harnden might need to make some room on a bookshelf or wall in his office. The managing partner at Barran Liebman, who earlier this year was named the Daily Journal of Commerce‘s Leader in the Law, is the 2011 recipient of the Henry H. Hewitt Access to Justice Award. Given to an given to an individual who has made a substantial contribution to legal aid for low-income Oregonians, the award in part recognizes Harnden’s more than 10-year commitment to the Lawyer’s Campaign for Equal Justice.

The Commercial Association of Realtors knows a nice guy when it sees one. The group has named attorney Michael R. Silvey the recipient of its 2011 Humanitarian Award. Silvey, a shareholder at Lane Powell, was selected for the honor based on his involvement with the Clackamas Community Land Trust, the Multnomah Circuit Court mediation program and the YMCA of Columbia-Willamette.

Two- and-a-half decades and counting — that’s the tally for the Portland law firm of Stahancyk, Kent & Hook, which recently celebrated its 25th year in business. From its first days in 1986 as a single-room operation, the firm has grown to 60 employees working in five offices in two states. During that time, the firm and its senior shareholder Jody Stahancyk have collected a long list of awards. Ask Stahancyk to list her favorite and there’s good chance she’ll point you to some of the more unusual honors she’s received, including a nod in 1997 from Willamette Week for being Portland’s “Scariest Divorce Lawyer.” To-ma-to, to-mah-to. Stahancyk’s clients would more likely refer to her as a fierce advocate willing to take their calls, no matter what time of the day or night they dial.

The Oregon New Lawyers Division has created a new program called “Practical Skills Through Public Service” to provide new attorneys with a structured means of gaining experience and practical skills. Portland attorney Collin McKean, co-chair of ONLD’s Pro Bono Subcommittee, says the program guides new attorneys to pro bono organizations that are certified by the Oregon State Bar. The participating organizations provide opportunities in municipal law, domestic relations law, juvenile rights law, elder law, bankruptcy, criminal law, immigration law and tax law, among other practice areas. New attorneys are encouraged to apply to participate in the program by May 19. Applications are available on the Oregon State Bar’s.

The post This and That … and all the local legal buzz in between appeared first on Daily Journal of Commerce.

(Editor’s note: This piece originally ran in the May 12, 2011, issue of the Briefly Legal e-newsletter)

As  law schools in Oregon prepare to release a new stream of graduates into the legal community, members of the Oregon New Lawyers Division offer some sage advice for the legal newcomers.

“This is a tough time to enter the attorney job market, but my advice is (Winston) Churchill‘s advice: ‘Never never never never give up.’ Find your spot as an attorney – no matter what it takes. You will love your career. You will never be bored. You will be proud of your legal profession your entire life. Your mom is proud of you now and your kids will be in the future. And consider a career in the public sector.”  – Patti Powell, assistant legal counsel for the Oregon Judicial Department’s Legal Counsel Division in Salem

“I would advise new graduates not to forget why they went to law school in the first place and never lose sight of their goals … Also, keep your head up when looking for work and get creative. There are jobs for new attorneys that are not right in front of your face or accessible through traditional means.” – Jason Hirshon, Slinde Nelson in Portland

“It is a very tough job market out there. Your key for now, and for your future, is networking and being involved. Not only will it help you find a job, it will help you build a book of business, which becomes very important around years five and six.” – Marc Johnston, Johnston Law Firm in Portland

“Because the legal profession is dynamic and will continue to redefine itself, it’s most important to keep an open mind about what you want to do and what you are willing to do with your law degree. Though you may have had one idea or path in mind when you started law school, don’t let that distract you from other opportunities … Keep your options open and don’t hesitate to explore new opportunities.” – Karen Clevering, Portland attorney

“Find mentors to advise you on the law and guide you through an oftentimes byzantine system, but don’t expect them to provide you with a job or even advice that will lead you to one. You have the qualifications to be a lawyer, but now you have to make yourself into one.” – Raife Neuman, Portland attorney

“… Unsettling as it may seem, new graduates would be well served to recognize and embrace the fact that the legal profession paradigm has changed from what we all understood it to be when we decided to attend law school. Grades and on-campus interviews no longer define graduates’ opportunities … Those who more readily adapt to the new legal landscape will more readily find the opportunities that are out there.” – Joey Mohr, Mohr Intellectual Property Law Solutions in Portland

The post Words from Winston — and other advice for future lawyers appeared first on Daily Journal of Commerce.

In his time on the bench, Washington County Circuit Court Judge Andrew R. Erwin has heard it all. This week, he shares with Briefly Legal one of the most memorable testimonies he’s encountered.

“Recently, an attorney (to remain nameless) stood up in response to a hearsay objection and announced, ‘Your honor, in family law we don’t follow the rules of evidence, the court just receives all the documents we want considered!’

Imagine her surprise to learn that at least one family law court does follow those pesky rules …”

The post Oh, those pesky rules … appeared first on Daily Journal of Commerce.

Business attorneys Todd Mitchell and John Ramig are the newest names on the roster at Ater Wynne’s Portland office.

Mitchell is a partner in Ater Wynne’s business, intellectual property, global trade and corporate finance groups, while Ramig is a partner in the firm’s global trade, business, emerging business and family-owned business groups. Both attorneys have extensive experience in entity formation, corporate finance and international transactions.

The post Mitchell, Ramig join Ater Wynne appeared first on Daily Journal of Commerce.

In March 2011, the 91��Ƶ held its first Leadership in Law awards as a way to recognize local attorneys with more than 10 years of experience. And while the profiles we wrote at the time for each of them were interesting, we felt they left us wanting to know a little more about what really makes these legal leaders tick.This week, we talk to Clatsop County District Attorney Josh Marquis.

Briefly Legal: What is one of the most amusing or unusual memories you have from law school?

Josh Marquis: I worked full time in the DA’s office during my third year of law school and I was perceived as something of an outsider. I was given the “Mr. Justice Rehnquist Award,” which was not meant in the most positive fashion.

BL: If you could choose a fantasy career that is totally different from practicing law, what would it be?

Marquis: Probably being a documentary filmmaker.

BL: In your opinion, what is the best legal movie or novel ever?

Marquis: For the movie, it’s a tie between “The Verdict” and “Anatomy of a Murder.” The best novel is probably Presumed Innocent.

The post Josh Marquis on documenting life and law appeared first on Daily Journal of Commerce.