United States Court of Appeals
For the First Circuit
Nos. 08-2027, 08-2028
ANA I. ALVARADO-SANTOS,
Plaintiff, Appellee/Cross-appellant,
v.
DEPARTMENT OF HEALTH OF THE COMMONWEALTH OF PUERTO RICO,
Defendant, Appellant/Cross-appellee;
JOHNNY RULLÁN, HÉCTOR MENA-FRANCO, and
FRANCISCO RODRÍGUEZ-PICHARDO,
Defendants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Velez-Rivé, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
José Enrico Valenzuela-Alvarado, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief, for
appellant/cross-appellee.
Lorenzo J. Polomares-Starbuck, with whom Raymond Sanchez
Maceira and Lorenzo Palomares, P.S.C., were on brief, for
appellee/cross-appellant.
September 8, 2010
LIPEZ, Circuit Judge. Plaintiff Ana I. Alvarado-Santos
(Alvarado-Santos) obtained a favorable jury verdict on her claims
of national origin and gender discrimination under Title VII of the
1964 Civil Rights Act, 42 U.S.C. § 2000e-2. Defendant Department
of Health of the Commonwealth of Puerto Rico (Department of
Health), her former employer, appeals from the judgment. The
Department of Health contends that it is entitled to judgment as a
matter of law or, in the alternative, to a new trial on the grounds
that the evidence at trial was insufficient to support the verdict,
that plaintiff's counsel made improper and prejudicial comments in
closing argument, and that the award of $300,000 in compensatory
damages was grossly excessive. Alvarado-Santos cross-appeals,
arguing that she was entitled to an award of front pay in addition
to compensatory damages and back pay.
After careful consideration, we conclude that the
evidence is insufficient to support a finding of national origin or
gender discrimination. Accordingly, we reverse and enter judgment
for the Department of Health.
I.
A. Factual Background
We recite the relevant facts in the light most favorable
to the jury verdict. Visible Sys. Corp. v. Unisys Corp., 551 F.3d
65, 69 (1st Cir. 2008).
-2-
Alvarado-Santos, a native of Puerto Rico, is a physician
specializing in family medicine. After working as the medical
director of a psycho-social treatment center for adolescents for
some time, she applied for a job with the Correctional Health
Services Program of the Department of Health. On April 10, 2002,
Alvarado-Santos entered into a professional services contract with
the Correctional Health Services Program to work as an Admissions
Director at the Rio Piedras Correctional Complex.1 In that
position, she supervised a team of medical and support staff and
oversaw the medical screening and evaluation of inmates admitted to
the correctional complex. Alvarado-Santos' initial contract with
the Department of Health extended through June 30, 2002. Her
contract was renewed for the year beginning July 1, 2002, and was
again renewed for the year beginning July 1, 2003.
In the fall of 2003, the Admissions Center where
Alvarado-Santos worked in Rio Piedras was closed and the health
services that had been offered there were moved to the Bayamón
Correctional Complex. All of the personnel who had worked at the
Rio Piedras Admissions Center, including Alvarado-Santos, were
1
During the period relevant to this case, the United States
District Court for the District of Puerto Rico was exercising
supervisory authority over the Correctional Health Services Program
as well as other aspects of the Puerto Rican correctional system.
This supervision is the result of "a long-running inmate class
action" commonly known as the Morales Feliciano case, which dates
back to 1979. Torres-Arroyo v. Rullan, 436 F.3d 1, 3 & n.1 (1st
Cir. 2006) (citing district court and First Circuit opinions
addressing the class action).
-3-
transferred to Bayamón. On October 1, 2003, Alvarado-Santos' 2003-
2004 contract was amended to reflect her transfer.
After the transfer of the Rio Piedras health services and
personnel to Bayamón, the Bayamón Correctional Complex had two
Admissions Centers for inmate health services: Admissions Center
308 and Admissions Center 705.2 Alvarado-Santos directed the
provision of health services at Admissions Center 705, while Marcos
Devarie, a male physician originally from Puerto Rico, directed
Admissions Center 308. Devarie had first begun working for the
Correctional Health Services Program in 1991 and had been the
director of Admissions Center 308 in Bayamón since 1997.
Doctor Francisco Rodríguez-Pichardo, the Director of
Clinical Services at the Bayamón Correctional Complex and a native
of the Dominican Republic, was Alvarado-Santos' immediate
supervisor in Bayamón. Some time after October 1, 2003, an office
clerk who worked at Admissions Center 705 overheard Rodríguez-
Pichardo saying that "Dominican doctors were better" than "the
other physicians who were there, who were Puerto Rican." One
physician working at Admissions Center 705 described Rodríguez-
Pichardo as a "hard" and "aggressive" person.
When Alvarado-Santos first began working in Bayamón in
October 2003, Admissions Center 705 did not yet have certain
2
The Admissions Centers were so-named because Admissions
Center 308 could accommodate 308 inmates as patients, while the
larger Admissions Center 705 could accommodate 705 inmates.
-4-
equipment, such as an x-ray machine and land-line phone service.
The center received an x-ray machine and phone service in January
2004. In the months before Admissions Center 705 was fully
equipped, physicians working at the center were given mobile phones
for emergency calls and inmates in need of x-rays were transported
to Admissions Center 308. Admissions Center 705 also did not have
a "medical cadre," a group of custody officials assigned by the
Corrections Administration to monitor inmates, although the center
did have some security officials assigned by the Corrections
Administration.3 During this period, Admissions Center 308 had a
working x-ray machine, phone service, and a medical cadre.
Following the transfer to Bayamón, Alvarado-Santos had a
series of difficulties with her supervisor, Rodríguez-Pichardo.
Prior to the October 1, 2003 transfer, the October medical shift
schedule for Admissions Center 705 had already been prepared by
Gualberto Guerrero, a physician originally from the Dominican
Republic who had been preparing the shift schedule for years.
After the transfer, Alvarado-Santos modified the October shift
schedule, redistributing the medical shifts. For example, she
removed several shifts from Guerrero and two other physicians,
Bernarda Cuevas and Juan Velez. She instead increased the number
of shifts assigned to a male physician, Dr. Ortiz, and gave shifts
3
As part of a pilot program, the Corrections Administration
assigned a "medical cadre" to some, but not all, admissions
centers.
-5-
to two female physicians, Drs. Diaz and Pagan, who had not had any
shifts in the original schedule prepared by Guerrero.
As a result of the altered shift schedule, Guerrero,
Velez and Cuevas complained to Rodríguez-Pichardo that Alvarado-
Santos had taken away some of their regular shifts without notice.
After comparing the October shift schedule with previous schedules,
Rodríguez-Pichardo confirmed that Alvarado-Santos had taken away
regular shifts from the physicians who had lodged complaints.
Without discussing the matter with Alvarado-Santos, Rodríguez-
Pichardo returned several shifts to the complaining physicians and
removed the additional shifts Alvarado-Santos had given to Ortiz,
Diaz and Pagan, so that the distribution of shifts resembled the
original schedule prepared by Guerrero.4 Rodríguez-Pichardo also
ordered Guerrero to continue preparing the shift schedule for
Admissions Center 705, instead of Alvarado-Santos. Devarie,
director of Admissions Center 308, prepared the medical shift
schedule for his center.
4
As a result of all of these changes, the number of female
physicians assigned to shifts on the October schedule decreased.
The original October shift schedule prepared by Guerrero before the
transfer assigned shifts to two female physicians, Cuevas and
another physician, Rivera; Rivera, however, chose not to continue
working medical shifts after the move to Bayamón. The schedule
prepared by Alvarado-Santos after the transfer assigned shifts to
three female physicians, Cuevas, Diaz, and Pagan. The final
schedule approved by Rodríguez-Pichardo assigned shifts to one
female physician, Cuevas.
-6-
Rodríguez-Pichardo also ordered some personnel working in
Admissions Centers 308 and 705 to report to a centralized
supervisor rather than their respective Admissions Directors. For
example, he ordered all nursing personnel to report to the Director
of Nursing, medical records personnel to report to the Director of
Medical Records, and radiology technicians to report to the Health
Services Administrator.
At some time after the transfer, Alvarado-Santos
complained to Rodríguez-Pichardo that two physicians, Guerrero and
Patricia López, both from the Dominican Republic, were falsifying
their time entries for payroll purposes. After investigating the
complaint, Rodríguez-Pichardo concluded that there was no
falsification or alteration in the time records and, without
talking to Alvarado-Santos, he dismissed her complaint. Although
Guerrero ordinarily submitted his time records to Alvarado-Santos
for approval, after this incident Rodríguez-Pichardo directed
Guerrero to submit his time records directly to the human resources
employee in charge of payroll, thereby bypassing Alvarado-Santos.
Rodríguez-Pichardo did not order any of the physicians supervised
by Devarie to submit their time records directly to human
resources; instead, those physicians continued to submit their time
records to Devarie for approval.
In March 2004, Alvarado-Santos was told by a Correctional
Health Services Program staff person that she had been chosen to go
-7-
to a medical training program in New York. She never attended the
training, however, because Rodríguez-Pichardo informed her that he
preferred to send Devarie. Rodríguez-Pichardo also did not invite
her to attend all monthly staff meetings.
On May 26, 2004, Alvarado-Santos received a letter from
Hector Mena-Franco, the Executive Director for the Correctional
Health Services Program and a native of the Dominican Republic,
stating that her contract expired on June 30, 2004 and would not be
renewed for the 2004-2005 year. After Alvarado-Santos requested
further explanation of the reasons for the nonrenewal, Mena-Franco
responded as follows:
During the current fiscal year the Rio Piedras
Correctional Complex's Admissions Center,
where you were providing services as a
Director, was closed. It should be pointed
out that the Program had no say in the
decision on this matter. For that reason it
was necessary to [amend] the contract between
the parties to state for the record that the
services would be provided in the Bayamón
Correctional Complex, and the effective term
thereof remained unaltered.
In view of the restructuring of the Bayamón
Correctional Complex, we have found it
necessary to integrate the Admissions service
to create consistency with the operating
structure in all the correctional complexes.
Every Correctional Complex has a single
director for services since we cannot justify
the duplication of services, and this violates
compliance and uniformity.
At trial, Mena-Franco explained that he made the final
decision not to renew Alvarado-Santos' contract upon the
-8-
recommendation of Rodríguez-Pichardo. Mena-Franco and Rodríguez-
Pichardo both testified that they decided not to renew her contract
based on a combination of two factors. First, after the transfer
of services from Rio Piedras, they needed to restructure the
Bayamón Correctional Complex so that both Admissions Centers were
under the authority of one Admissions Director. Second, according
to monthly reports over the period from October 2003 - May 2004,
Alvarado-Santos' Admission Center 705 routinely had much lower
compliance rates in treating inmates according to certain time
tables and standards than Devarie's Admission Center 308. These
compliance reports reflected how well the Admissions Center met
established goals related to the provision of health services to
inmates.
After Alvarado-Santos' contract was not renewed, both
Admissions Centers at the Bayamón Correctional Complex were placed
under the supervision of Devarie.
B. Proceedings in the District Court
1. Trial
In September 2004, Alvarado-Santos filed suit against the
Department of Health and several individual defendants, including
Rodríguez-Pichardo and Mena-Franco. Her complaint alleged that the
defendants chose not to renew her contract on the basis of her
gender and national origin in violation of Title VII, 42 U.S.C.
§ 2000e-2, and related provisions of Puerto Rico law. Following
-9-
the dismissal of her Puerto Rico law claims and her Title VII
claims against the individual defendants, Alvarado-Santos proceeded
to trial on her Title VII gender and national origin discrimination
claims against the Department of Health. By the consent of the
parties, a magistrate judge presided over the jury trial. See 28
U.S.C. § 636(c).
At the close of a week-long jury trial, plaintiff's
counsel made several comments in closing argument about the
relationship in Puerto Rico between Puerto Ricans and Dominicans
that the Department of Health contends on appeal were improper and
prejudicial. The Department did not lodge a contemporaneous
objection to the comments. The Department of Health did lodge an
objection after plaintiff's counsel stated that the jury should
issue a verdict of at least $2.5 million, which the court
overruled.
The jury found the Department of Health liable for gender
and/or national origin discrimination and awarded Alvarado-Santos
$1.25 million in compensatory damages. The jury verdict form asked
whether the jury found "that the Department of Health did not renew
Dr. Ana I. Alvarado Santos' contract due to her gender or national
origin," and the jury answered in the affirmative. Thus we cannot
be certain whether the jury verdict rested on a finding of national
origin discrimination, gender discrimination, or both.
-10-
2. Post-trial motions
Both parties filed post-trial motions. Alvarado-Santos
moved to alter or amend the judgment pursuant to Fed. R. Civ. P.
60(b), requesting that the $1.25 million compensatory damages award
be reduced to $300,000 in accordance with the applicable statutory
cap. 42 U.S.C. § 1981a(b)(3)(D). She requested an additional
award of $377,441.30 in back pay and $572,558.70 in front pay. The
Department of Health filed a renewed motion for judgment as a
matter of law under Fed. R. Civ. P. 50(b), arguing, inter alia,
that no reasonable jury, on the evidence presented, could conclude
that Alvarado-Santos' contract was not renewed based on her sex or
national origin. It also moved for a new trial or remittitur under
Fed. R. Civ. P. 59, contending that the verdict was against the
weight of the evidence, the damages award was grossly excessive,
and a new trial was required due to plaintiff's counsel's
inflammatory remarks during closing argument. Finally, in response
to plaintiff's motion to amend the judgment, the Department of
Health agreed that the compensatory damages award should be reduced
to no more than $300,000 based on the statutory cap, but opposed
her request for additional awards of back and front pay.
The district court denied the Department of Health's
motions for judgment as a matter of law and for a new trial or
remittitur. It granted in part Alvarado-Santos' motion to amend
the verdict, reducing the compensatory damages award to $300,000 in
-11-
accordance with the statutory cap, awarding the requested
$377,441.30 in back pay, but denying the requested award of front
pay. The court therefore entered judgment in favor of Alvarado-
Santos and awarded damages in the amount of $677,441.30.
This timely appeal and cross-appeal followed.
II.
The Department of Health raises several contentions on
appeal. It argues: (1) that the evidence was insufficient to
support the jury's determination that Alvarado-Santos' contract was
not renewed based on her gender and/or national origin, (2) that
the evidence was insufficient to support a jury finding that
Alvarado-Santos was an employee of the Department of Health, as
opposed to an independent contractor, (3) that plaintiff's counsel
made inflammatory and prejudicial comments in closing argument that
require a new trial, and (4) that the $300,000 compensatory damages
award was grossly excessive. We agree that, based on the evidence
presented at trial, no reasonable jury could find that the
nonrenewal of Alvarado-Santos' contract was based on her gender
and/or national origin. We therefore conclude that the Department
of Health is entitled to judgment as a matter of law. In light of
this conclusion, we need not reach the Department of Health's
remaining contentions.
We review the court's denial of a renewed motion for
judgment as a matter of law de novo. Valentín-Almeyda v.
-12-
Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006). We
review the evidence in the light most favorable to the verdict and
may reverse only if no reasonable person could have reached the
conclusion arrived at by the jury. Id. at 95-96.
The jury was instructed to evaluate Alvarado-Santos'
claims of gender and national origin discrimination under the
McDonnell Douglas burden-shifting framework. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the
plaintiff must first establish a prima facie case of
discrimination. See Lockridge v. Univ. of Me. Sys., 597 F.3d 464,
470 (1st Cir. 2010). The prima facie case varies according to the
nature of the plaintiff's claim but it requires, among other
things, a showing of an adverse employment action. Id. After the
plaintiff has made this prima facie showing, the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Id.
If the employer meets its burden, the focus then shifts back to the
plaintiff to show, "by a preponderance of the evidence, that the
employer's articulated reason for the adverse employment action is
pretextual and that the true reason for the adverse action is
discriminatory." Id.
As to both the gender and national origin discrimination
claims, we assume arguendo that Alvarado-Santos met her burden to
establish a prima facie case. At trial, the Department of Health,
-13-
in turn, met its burden to articulate a legitimate
nondiscriminatory reason for the contract nonrenewal. The
Department of Health offered evidence that it needed to place both
Admissions Centers in Bayamón under the authority of one Admissions
Director to achieve greater uniformity and efficiency, and it chose
Devarie for that position over Alvarado-Santos due to the better
compliance record at the center run by Devarie. Our focus is
therefore on the ultimate question: whether the evidence set forth
at trial would enable a reasonable jury to find that the Department
of Health's proffered nondiscriminatory reasons are pretextual and
Alvarado-Santos' contract was in fact not renewed because of her
gender and/or national origin. See id.
A. National Origin Discrimination
As we described above, the Department of Health offered
testimony from both Mena-Franco and Rodríguez-Pichardo that they
needed to consolidate the two Admissions Centers in Bayamón under
the leadership of one Admissions Director, and that they chose
Devarie to fill that role rather than Alvarado-Santos because his
Admission Center had a better compliance record. In an effort to
meet her burden to show that, in fact, discriminatory animus based
on her national origin motivated the employment decision, Alvarado-
Santos relied entirely on evidence of two facts: (1) the
supervisors who participated in the decision to not renew her
contract, Mena-Franco and Rodríguez-Pichardo, are both originally
-14-
from the Dominican Republic, whereas she was born in Puerto Rico,
and (2) at some point after the October 1, 2003 transfer to
Bayamón, Rodríguez-Pichardo commented that Dominican doctors are
better than Puerto Rican doctors. Importantly, however, Alvarado-
Santos conceded at trial that Devarie, the person that Mena and
Rodríguez-Pichardo chose to direct both Admissions Centers in
Bayamón, was Puerto Rican, not Dominican.
In addition, Alvarado-Santos offered no evidence that
Rodríguez-Pichardo's isolated remark about Dominican doctors was
close in time to the decision not to renew her employment
contract,5 was related to her, or was otherwise related to the
employment decision. See Straughn v. Delta Air Lines, Inc., 250
F.3d 23, 36 (1st Cir. 2001) (reasoning that although "'stray
remarks' may be material to the pretext inquiry, 'their
probativeness is circumscribed if they were made in a situation
temporally remote from the date of the employment decision, or . .
. were not related to the employment decision in question'"
(quoting McMillan v. Mass. Soc'y for the Prevention of Cruelty to
Animals, 140 F.3d 288, 301 (1st Cir. 1998))). Based on this
evidence, no reasonable jury could conclude that Alvarado-Santos
met her burden to show that the decision to not renew her contract
5
Alvarado-Santos received notice that her contract would not
be renewed at the end of May 2004. Rodríguez-Pichardo's comment
was described at trial as having been made some time "after October
1, 2003."
-15-
was motivated by national origin discrimination rather than by
legitimate, nondiscriminatory reasons.
B. Gender Discrimination
In support of her argument that her contract renewal was
in fact motivated by gender bias rather than the legitimate reasons
proffered by the Department of Health, Alvarado-Santos relied
primarily on evidence that on several occasions prior to her
contract nonrenewal, she was treated differently than Devarie.
Alvarado-Santos offered evidence of the following disparities in
treatment: (1) in the first few months after the transfer of health
services from Rio Piedras, Admissions Center 705 did not yet have
certain equipment that Devarie's Admission Center 308 had, such as
an x-ray machine and land-line phone service; (2) after Alvarado-
Santos altered the October 2003 shift schedule and several
physicians complained, Rodríguez-Pichardo directed Guerrero to
continue preparing the Admission Center 705 shift schedule rather
than Alvarado-Santos, but permitted Devarie to continue preparing
his own shift schedule for Admission Center 308; (3) after
Alvarado-Santos complained that Guerrero was falsifying his time
records, Rodríguez-Pichardo investigated, found her complaint
unfounded, and directed Guerrero to submit his time records
directly to human resources thereafter, but did not issue a similar
order to any employees supervised by Devarie; and (4) Rodríguez-
-16-
Pichardo invited Devarie to attend a training in New York, but did
not invite Alvarado-Santos.6
Alvarado-Santos characterizes these instances as
"differential treatment based on gender." However, in each case,
beyond the mere fact that Alvarado-Santos is a woman and Devarie is
a man, there is no evidence that any difference in how she was
treated was based on gender, and ample evidence of legitimate
reasons for her differential treatment.
For example, her first point of discrimination relates to
the differences in equipment between Center 705 and Center 308 in
the first few months after the transfer of health services from Rio
Piedras. Yet, there is no evidence that this difference had
anything to do with her gender. Rather, the testimony showed that
Center 308 was a pre-existing medical center, whereas Center 705
was a brand new facility created to receive the patients from the
Rio Piedras facility that had to close. As such, it did not yet
have all of its equipment.
Similarly, on Alvarado-Santos' second point, that Devarie
was permitted to continue preparing his own shift schedule even
6
Alvarado-Santos also points to other ways in which she felt
that Rodríguez-Pichardo undermined her supervisory authority. For
example, Rodríguez-Pichardo ordered some personnel working in
Admission Centers 308 and 705 to report to a centralized supervisor
rather than to their Admissions Director, and he did not invite
Alvarado-Santos to attend all monthly staff meetings. There was no
evidence presented at trial, however, that Alvarado-Santos was
treated any differently than Devarie in these respects.
-17-
after her scheduling duties were transferred to Guerrero, there was
no evidence that this difference in treatment had anything to do
with her gender. Rather, the testimony showed that Rodríguez-
Pichardo gave Guerrero the responsibility after Alvarado-Santos
altered the October 2003 shift schedule in a way that drew
complaints from several doctors and that Rodríguez-Pichardo found
unsuitable. There was no evidence that there had been any
complaints about Devarie's assignment of shifts.7
For her third point of differential treatment, Alvarado-
Santos says that Guerrero was told to submit his time records
directly to Human Resources, rather than to Alvarado-Santos,
whereas no such order was issued to any employees supervised by
Devarie. Once again, there is no evidence that this change had
anything to do with Alvarado-Santos' gender. Instead, it was
explained by Rodríguez-Pichardo's determination that Alvarado-
Santos had made an unsubstantiated claim that Guerrero was
7
Alvarado-Santos also observes that in revising the October
shift schedule she had prepared, Rodríguez-Pichardo removed shifts
from two female physicians and left only one female on the
schedule, and argues that this suggests gender bias. As set forth
in more detail earlier in this opinion, Alvarado-Santos altered the
original October shift schedule prepared by Guerrero, removing
regular shifts from several physicians and awarding shifts to two
female physicians who had not had any shifts on the original
schedule. After receiving complaints from several physicians,
Rodríguez-Pichardo revised the October shift schedule so that it
again resembled the original schedule, returning shifts to the
complaining physicians. This sequence of events, given its history
and the few parties involved, does not support an inference of
gender bias.
-18-
falsifying his time records. There was no evidence of a similar
unsubstantiated complaint being made by Devarie.8
In summary, the record contains abundant evidence that
Alvarado-Santos and Devarie were not similarly situated and that
the differential treatments cited by Alvarado-Santos were
rationally based on differences between them. As noted, Mena-
Franco and Rodríguez-Pichardo testified that they decided not to
renew Alvarado-Santos' contract because of the need to place the
two Admissions Centers in Bayamón under the leadership of one
Admissions Director in order to achieve greater uniformity and
efficiency. They further testified that they chose Devarie for
this position over Alvarado-Santos based on their evaluation of the
two Admission Centers and their review of monthly compliance
reports, which indicated that Devarie's Admission Center had a
significantly better compliance record than Alvarado-Santos' from
October 2003 to May 2004.9 In addition, Devarie had five more
8
On her fourth point relating to the fact that Devarie went
to a medical training program in New York while Alvarado-Santos did
not, there is no explanation in the record for this distinction.
Even unexplained, however, this single difference in treatment is
far too insubstantial to support a claim of gender discrimination.
9
Although she does not dispute that her Admissions Center had
lower compliance levels than Devarie's, Alvarado-Santos argues that
her supervisors' reliance on these monthly compliance reports in
making their decision to terminate her was unfair because for the
first few months of her time in Bayamón, her center (unlike
Devarie's) lacked certain equipment such as an x-ray machine and
land-line phone service. At trial, however, Rodríguez-Pichardo
offered unrebutted testimony that the compliance levels at
Admissions Center 705 remained low even after the center was fully
-19-
years of experience as an Admissions Director than Alvarado-Santos.
Alvarado-Santos offered no evidence to rebut the showing that
Devarie's Admissions Center had consistently higher levels of
compliance or that Devarie had more years of experience as an
admissions director.
The evidence presented at trial was thus insufficient to
allow a reasonable jury to conclude that Alvarado-Santos met her
burden to show that her contract nonrenewal was motivated by gender
discrimination rather than by legitimate, nondiscriminatory
reasons.
C. Comments During Closing Argument
The Department of Health also claims that it is entitled
to a new trial based on the improper remarks of plaintiff's counsel
during closing arguments. Because judgment is being entered for
the Department of Health, there is no need to resolve that
question. Nevertheless, if we had to reach the closing argument
issue on the merits, the Department would have a good argument that
it was entitled to a new trial. It may well be that the jury was
influenced by the entirely improper and inflammatory closing
argument by plaintiff's counsel, pitting people from Puerto Rico
against people from the Dominican Republic.
Counsel made the following comments during closing
argument:
equipped with an x-ray machine and phone service, in early 2004.
-20-
All these people care is about their cronies
from the Dominican Republic. They don't care
about Puerto Ricans, except that they want to
take their money. That's all they care about.
They came to this service with one specific
purpose: It wasn't to take care of the
inmates; it was to profit, and not let others,
such as women, and non-Dominicans, to work
with your money.
Later in closing, plaintiff's counsel stated:
Your verdict has to be sufficient to show
these individuals that in Puerto Rico we do
not discriminate. . . . The number I submit
to you should be herein no less than $2.5
million. That is an amount that is gonna give
them respect, it's gonna show them what ball
game we are about. . . .
You have to send a message to Dr. Pichardo and
his cronies that this doesn't happen in Puerto
Rico. . . . What amount, if any, do you
adequately say? I submit to you that the
number here is 2.5 million. Nothing less will
clear this event.
Ladies and gentlemen, don't let it happen in
Puerto Rico. You opened your arms to these
people. They came in. You treated them
fairly. And what do they do? -- They stab you
in the back. They stabbed her in the back
because she's a woman. They stabbed her in
the back because she's Puerto Rican.
That is not what Dr. Martin Luther King
convinced a nation to do.
We are dismayed that, even while calling on the jury to
uphold principles of equality and antidiscrimination, plaintiff's
counsel made inflammatory arguments to the jury based on the
Dominican nationality of some individual defendants. Such
arguments are "clearly prohibited conduct" and have no place in a
-21-
court of law. Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.
1999) (internal quotation marks and citation omitted).
III.
For the foregoing reasons, we reverse the judgment of the
district court and order the entry of judgment in favor of the
Department of Health. The parties shall bear their own costs on
appeal.
So ordered.
-22-