United States Court of Appeals

For the First Circuit

No. 08-1887

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

 Lipez, Baldock and Howard, *

Circuit Judges.

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.

January 26, 2012

Of the Tenth Circuit, sitting by designation. *
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.

We state the facts in the light most favorable to the jury 1

verdict. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 3 (1st Cir.

2005). 

-2-
(HEAM). In 1978, the hospital hired Serrano as a cardiologist. 2

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

SEAM both owned and operated the hospital until 1992, when 2

HEAM took over hospital operations, including human resources. 

SEAM, however, continued to retain title to the hospital's real

estate. The two entities are run independently by separate boards. 

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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.

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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

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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.

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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 (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

-7-
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. Under that 3

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." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 4

(1st Cir. 1991). If the plaintiff makes out a prima facie case of

retaliation, "the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for its employment decision." 

Id. If the defendant presents such a reason, then "the ultimate

burden falls on the plaintiff to show that the employer's proffered

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); 3

see also Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 &

n.2 (1st Cir. 2009) (discussing the application of the McDonnell

Douglas framework in ADEA cases). 

The defendants conceded at trial that the first two elements 4

were met.

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reason is a pretext masking retaliation for the employee's

opposition to a practice cast into doubt by the ADEA." Id.

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 (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 (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 29 U.S.C. § 623(d); Reeves, 530 U.S.

at 149-51.

The defendants are right that Serrano's 2004 deposition

cannot support an inference of causality. Absent special

-9-
circumstances not present here, an adverse employment decision that

predates a protected activity cannot be caused by that activity. 

E.g., Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 5 (1st Cir.

2008) (no causality when adverse employment decision was made two

months before the plaintiff filed a complaint). This is also true

-- again, there are exceptions -- when the adverse employment

decision was contemplated but "not yet definitively determined"

before the protected activity took place. See Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 272 (2001) ("Employers need not

suspend previously planned transfers upon discovering that a Title

VII suit has been filed, and their proceeding along lines

previously contemplated, though not yet definitively determined, is

no evidence whatever of causality.").

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

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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

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competing with the hospital. The jury conceivably could have

rejected that non-discriminatory explanation and inferred

retaliatory motive. See Reeves, 530 U.S. at 179-49. 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.

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, Cocero, 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. See id. 

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

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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. See Mesnick, 950 F.2d at 828

(circumstantial evidence includes "comments by the employer which

intimate a retaliatory mindset"). Serrano further testified that, 5

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

The defendants contend that it was actually Enrique Fierres, 5

the chairman of SEAM's board at the time, who made this statement. 

If true, the statement would be less indicative of retaliatory

animus because Fierres was not a member of HEAM's board and there

is no evidence that he was involved in the decision to terminate

Serrano. See, e.g., Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st

Cir. 2002) ("[S]tatements made either by nondecisionmakers or by

decisionmakers not involved in the decisional process, normally are

insufficient, standing alone, to establish either pretext or the

requisite discriminatory animus."). But the defendants offer no

basis whatsoever to support their contention (e.g., transcription

error), and we see no reason to believe that Serrano misspoke.

-13-
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 secondguess 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 Article 1802, P.R.

Laws Ann. tit. 31, § 5141. Specifically, they advance the

following five claims of error: that (1) the cause of action was

time barred, having been filed after the expiration of Article

1802's one-year statute of limitations; (2) the application of

Article 1802 -- which, according to the appellants, was merely a

ruse to obtain otherwise unavailable compensatory damages -- is

barred by the exclusive remedies of the ADEA and its Puerto Rico

analog, Act 115, P.R. Laws Ann. tit. 29, § 194a; (3) the court

failed to apply the heightened standard of "gross negligence,"

required where, as here, the defendants are directors of a (Puerto

Rico) corporation; (4) the evidence was generally insufficient to

-14-
establish a cognizable Article 1802 claim; and (5) erroneous

instructions issued to the jury warrant a new trial. We address

these arguments seriatim.

1. Statute of Limitations

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 postverdict 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. We have 6

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.

The appellants raised the issue for the first time not in 6

their actual Rule 50(b) motion, but rather in their response to the

plaintiff's reply to the motion.

-15-
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

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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).

In Rosario, the plaintiff brought an action under, inter

alia, Act 80, P.R. Laws Ann. tit. 29, § 185 (wrongful dismissal

act), Act 100, P.R. Laws Ann. tit 29, § 146 (employment

discrimination act), and Article 1802, alleging sexual harassment

by her employer. The court, itself relying on a few paragraphs

from a 1994 Puerto Rico Supreme Court case, Santini Rivera v. Serv.

Air., Inc., 137 D.P.R. 1 (P.R. 1994), opined that "to the extent

that a specific labor law covers the conduct for which a plaintiff

seeks damages, he is barred from using that same conduct under

Article 1802. An additional claim under Article 1802 may only be

brought by the employee-plaintiff if it is based on tortious or

negligent conduct distinct from that covered by the specific labor

law(s) invoked." Rosario, 2008 WL 509204, at *2.

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 42 U.S.C. § 1983 claim, was sufficiently

clear and obvious to amount to plain error); see also United States

-17-
v. Kasenge, 660 F.3d 537, 541 (1st Cir. 2011) (noting that one of

the elements of plain error is that the error be "clear or

obvious"). The district court's error here -- if error at all --

was neither clear nor obvious.

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, 7

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., PaganAlejandro v. PR ACDelco Serv. Ctr., Inc., 468 F. Supp. 2d 316

(D.P.R. 2006) (considering an Article 1802 claim concurrently with

To the extent that the court might have considered the

7

Rosario order in its analysis of the appellants' Rule 50(b) motion,

it declined to consider the merits, correctly deeming the argument

waived. See Larch, 272 F.3d at 71-72.

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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. This case is no

exception. We conclude that, in light of the relative obscurity of

Rosario, the paucity of jurisprudence on the issue at the time of

trial, the fact that the issue was never raised by either party,

and the appellants' own affirmative trial conduct acknowledging

Article 1802 as a viable cause of action throughout the

proceedings, the court's allowance of the Article 1802 claim did

not constitute plain error. See United States v. Marino, 277 F.3d

11, 32 (1st Cir. 2002) (declining to find plain error where the law

was unsettled). 

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

Indeed, at the time of Serrano's trial, there was also 8

language in some cases suggesting that such a bar might exist only

where the text of the employment statute being invoked provides

explicitly that its remedies are exclusive -- language that is not

evident in Act 115. See, e.g., Melendez v. KMart Corp., No. Civ.

04-1067, 2006 WL 696082, at *6 (D.P.R. Mar. 17, 2006) (unreported

opinion and order) (ordering plaintiff to "show cause why the

causes of action under Article[] 1802 . . . should not be dismissed

considering settled case law indicating . . . Act 80's nature as

the provider of exclusive remedies, thus, preempting causes of

action under Article[] 1802") (emphasis added).

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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-García v. MirandaMarín, 610 F.3d 756, 766 n.10 (1st Cir. 2010), cert. denied, 131 S.

Ct. 1016 (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

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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

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defendant espoused throughout the trial proceedings -- no plain

error has occurred.

4. Sufficiency of the Evidence

Article 1802 provides that "[a] person who by act or

omission causes damage to another through fault or negligence shall

be obliged to repair the damage so done." P.R. Laws Ann. tit. 31,

§ 5141. In order to prevail on this theory, the plaintiff must

show "(1) evidence of physical or emotional injury, (2) a negligent

or intentional act or omission (the breach of duty element), and

(3) a sufficient causal nexus between the injury and defendant's

act or omission (in other words, proximate cause)." VázquezFilippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st Cir.

2007) (construing Puerto Rico law).

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 twentyplus years of service and impeccable reputation. Instead, the

board had its fiat delivered in a terse and impersonal letter more

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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).

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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 (1996) (abuse of discretion standard).

Second, the appellants argue that the court's front-pay

award of approximately $250,000 was an abuse of discretion. Front

pay is "money awarded for lost compensation during the period

between judgment and reinstatement or in lieu of reinstatement." 

Pollard v. E.I. du Pont de Numours & Co., 532 U.S. 843, 846 (2001). 

Because awards of front pay "necessarily involve predictions of

events yet to come," they "are generally afforded more deference"

than other discretionary awards in this context, such as back pay. 

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Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 380 (1st Cir.

2004). Here, reinstatement was not possible, and the relatively

modest (for a cardiologist) front-pay award was appropriate based

on Serrano's age and the nature of his practice. It was not an

abuse of the court's equitable discretion.

Third, the appellants challenge the jury's finding that

the retaliation was willful, resulting in an additional award of

$267,400. See 29 U.S.C. § 626(b) (entitling prevailing plaintiff

to doubled back pay in situations involving "willful violations"). 

Congress intended this liquidated-damages provision to be punitive,

thereby serving to deter willful misconduct. See Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985). For this

purpose, a violation is considered willful if "the employer . . .

knew or showed reckless disregard for the matter of whether its

conduct was prohibited by the ADEA." Id. at 126; see also Hazen

Paper Co. v. Biggins, 507 U.S. 604, 614-16 (1993). Here, for many

of the same reasons as are discussed above, we are satisfied that 9

the jury was free -- although by no means compelled -- to assemble

the pieces of evidence into a mosaic of calculated misconduct from

which it could infer reckless disregard for the protections of the

ADEA. Accordingly, the liquidated-damages award stands.

See supra Part II.A (addressing the appellants' challenge to 9

the sufficiency of the evidence on Serrano's retaliation claim).

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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 (1995); see 29 U.S.C. §§ 216(b),

626(b) (2006), so part of the argument -- which we need not address

further -- is merely an extension of their earlier argument that

retaliation was unproved. The other part is that the award should

be reduced because the court did not make certain findings required

under Puerto Rico law. See IOM Corp. v. Brown Forman Corp., 627

F.3d 440, 452 (1st Cir. 2010) (construing Puerto Rico law). But

the appellants do not adequately explain why the rule that they

urge applies in this case, nor do they explain how such findings

would have altered the award in this case. More than that is

required to show an entitlement to relief. See Zannino, 895 F.2d

at 17. 

III. CONCLUSION

For the aforementioned reasons, the judgment is affirmed.

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