

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1104

                         OLLIE LATTIMORE,

                      Plaintiff - Appellee,

                                v.

                      POLAROID CORPORATION,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                           

                              Before

                      Selya, Circuit Judge,                                                    

              Torres* and Saris,** District Judges.                                                            

                                           

     Stephen B. Deutsch,  with whom Michael  L. Rosen and  Foley,                                                                           
Hoag &amp; Eliot were on brief for appellant.                      
     Stephen  Wald, with  whom  William F.  Macauley, Anthony  D.                                                                           
Rizzotti and Craig and Macauley were on brief for appellee.                                         

                                           

                         November 1, 1996
                                           

                                                  

*  Of the District of Rhode Island, sitting by designation.

**  Of the District of Massachusetts, sitting by designation.

          TORRES,   District   Judge.      Polaroid   Corporation                    TORRES,   District   Judge                                              

("Polaroid") appeals  from a judgment  entered in favor  of Ollie

Lattimore with respect to several claims of racial harassment and

employment  discrimination  brought  pursuant  to  42   U.S.C.   

2000(e)-1 et seq. ("Title VII")  and Mass. Gen. L. ch. 151B,    4                          

("Chapter  151B").   Polaroid  contends that  the District  Court

erred  in denying  Polaroid's motions  for summary  judgment, for

judgment  as a matter  of law  and for a  new trial.   Because we

conclude that  the motion for judgment as  a matter of law should

have  been granted with respect to some of Lattimore's claims and

because it appears  that the  jury's verdict may  have rested  on

those claims, we vacate the judgment and remand for a new trial.

                        Factual Background                                  Factual Background                                                    

          Ollie Lattimore, a black man, was hired  by Polaroid in

1977 as a machine operator.  During part of Lattimore's tenure at

Polaroid,  his supervisor  was Bill  Mitchell, a  white man.   In

1978,    Lattimore  sustained  a  job-related  back  injury  that

resulted  in his  being placed  on a  "medical restriction"  that

limited  his  duties to  tasks  that did  not  require repetitive

bending, twisting  or lifting objects weighing  more than fifteen

pounds.   The restriction was  renewed each year  until 1989 and,

because of it, Lattimore was assigned to light-duty work.

          At trial,  Lattimore testified that, in  March of 1989,

Mitchell assigned  him to certain janitorial  tasks that required

heavier  lifting.   When  Lattimore  protested  that his  medical

restriction prevented  him from performing  those tasks, Mitchell

                               -2-

allegedly replied, "I'm  sick of  you people all  the time  lazy,

trying to skip work.  There is the door.  Don't let it hit you in

the ass."  Lattimore  interpreted the statement as a  racial slur

and stated that  he began  doing the janitorial  work because  he

feared  for his job.  Mitchell denied asking Lattimore to perform

tasks  prohibited  by his  medical  restriction  and also  denied

making the statement attributed to him.

          According  to  Lattimore, on  March  16,  1989, he  re-

injured his back while emptying a barrel into a dumpster.   Later

that day,  he was seen by  Dr. Hillier, a physician  who had been

treating him  for his  pre-existing back  problems.   Dr. Hillier

provided  Lattimore with the first in a series of reports stating

that  Lattimore  was  disabled  from  returning  to  work.    The

following  day, Lattimore  presented the  report to  Mitchell who

allegedly  said,  "I'm  getting sick  and  tired  of  you people.

You're  all  lazy all  the time."    Mitchell denied  making that

statement, too.

          In any event, Polaroid immediately placed  Lattimore on

short-term disability  ("STD") status pursuant  to the  company's

short-term disability policy.  Under  that policy, an employee is

eligible for  STD benefits if  medical reports  submitted by  the

employee's  treating physician  support the  conclusion that  the

employee is totally disabled.   The policy further provides  that

in the event that  Polaroid's Medical Review Board ("the  Board")

disagrees  with  the  assessment  by  the  employee's  physician,

Polaroid may require an independent medical examination  ("IME"),

                               -3-

the  results of which will  be deemed conclusive  with respect to

the employee's ability to work.

          Approximately twelve weeks after Lattimore was accorded

STD status,  Dr. Kantrowitz, Polaroid's medical  director and the

chairman  of the Medical Review Board, spoke to Dr. Hillier about

Lattimore's condition.  Dr.  Hillier indicated that Lattimore was

improving and  should be able to return to work  on July 24 if an

examination  scheduled  for  July  21 showed  the  progress  that

Dr. Hillier anticipated.

          After subsequently receiving a report  from Dr. Hillier

listing Lattimore's condition as "undetermined" and learning that

the examination  scheduled for July  21 had been  postponed until

August 8, the Board decided to require an IME without waiting for

the results of Dr. Hillier's  examination.  Polaroid claims  that

the Board's  decision was based  on ambiguities in  Dr. Hillier's

reports and on  the results  of a July  13 workers'  compensation

examination performed  by Dr. James Dolphin  which indicated that

Lattimore  was  able to  perform  light  work.   Apparently,  Dr.

Dolphin's  findings had  caused Lattimore  to be  denied workers'

compensation benefits.

          The Board gave Lattimore  the opportunity to select one

of three "independent" physicians to conduct the IME and he chose

Dr. Marcos Ramos.  The IME was performed on August 23.  According

to  Lattimore, the examination was very brief and did not include

any  diagnostic tests.  Dr.  Ramos, on the  other hand, indicated

that the  examination was  thorough and lasted  approximately one

                               -4-

and one-half hours.

          The   following   day,  Richard   Williams,  Polaroid's

corporate  benefits administrator,  informed  Lattimore that  Dr.

Ramos  had determined  that Lattimore  was not  totally disabled;

that he could return  to light-duty work immediately and  that he

could  resume full  duties in  two weeks.   Accordingly, Williams

instructed  Lattimore to return to  work the next  day.  Although

Williams'  statements  regarding  Dr.  Ramos'   conclusions  were

consistent  with the  findings  contained in  Dr. Ramos'  written

report, the report was not issued until one week later.  Williams

sought  to explain  this  by testifying  that  the findings  were

related  to him during a telephone conversation with Dr. Ramos on

August 23.  However,  Dr. Ramos had no  recollection of any  such

conversation.

          Matters came to a head when Lattimore refused to return

to  work  asserting  that he  still  was  totally  disabled.   On

September 9, Lattimore's  employment  was terminated.    Polaroid

presented evidence  that the  decision was  made by  Eddy Montes,

Lattimore's new  supervisor, based  upon the company's  policy of

terminating  employees who  refused to  work after  being removed

from STD status.

                        Procedural History                                  Procedural History                                                    

          On  October   27,  1989,  Lattimore  filed   a  written

administrative charge  with the Massachusetts  Commission Against

Discrimination ("MCAD") and with the Equal Employment Opportunity

Commission  ("EEOC").   The  charge  recited  that Lattimore  had

                               -5-

sustained a  back injury  on March 16,  1989, and  had filed  for

worker's  compensation benefits on June 26, 1989.   It went on to

state that he was later fired for refusing to return to work even

though his back injury  rendered him totally disabled.   Based on

that account of the pertinent events, Lattimore alleged that:

            Respondent does not  treat white  workers
            who  are handicapped  and have  filed for                                                               
            workers  compensation  the way  they have                                           
            treated  me.     Ray  (Lnu),   a  machine
            operator  in my department,  has been out
            on  workers comp  numerous times  and has
            not  been harassed  and fired  as I  have
            been.  I believe  I was fired and treated
            differently due to my race, black, and my
            handicap,  back injury,  . .  . (emphasis
            added).

          After investigating  and finding no  probable cause  to

believe  that Polaroid  had discriminated against  Lattimore, the

MCAD  dismissed the  charge.    The  EEOC  did  not  conduct  any

independent investigation but accepted  MCAD's finding and issued

Lattimore a right-to-sue letter on March 24, 1992.

          On June  22, 1992, Lattimore, acting  pro se, commenced                                                                

this  action in  the  District Court.    His complaint  was  more

detailed than  the administrative charge  but covered essentially

the same  ground.  It alluded  to the March 16  back injury which

Lattimore  attributed to  being assigned  to  duties inconsistent

with his medical restriction.   It also stated that,  after being

placed on STD status, Lattimore was wrongfully  removed from that

status when  he applied  for workers' compensation  benefits that

would have  supplemented his  disability payments.   Finally, the

complaint  referred to  Lattimore's  termination for  refusing to

                               -6-

return to work  despite his claim  that he was  unable to do  so.

Like  the administrative  charge,  the  complaint asserted  that,

because  of his race, Lattimore  was denied benefits  to which he

was entitled.  More specifically, it stated:

            I  believe that  the Polaroid  Corp. used
            the fact  that I was an  uneducated black
            to  hinder my every effort to receive the
            compensation  which  was   due  me   both
            through  the Workmen's  Compensation laws
            and  the Company's  Short  Term and  Long
            Term Disability programs.

          Nine months  later, after retaining  counsel, Lattimore

amended his  complaint.   The  amended complaint,  for the  first

time,  alleged that, on  unspecified occasions  after Lattimore's

1979 back  injury, "supervisors  and other employees  at Polaroid

harassed  . . .  [him] . .  . about  his handicap"  and that such

harassment  was  "coupled  with verbal  reference  to Lattimore's

race."

          The amended complaint contained five counts asserting a

variety of claims for both handicap and race discrimination.  The

District Court  granted  Polaroid's motion  for summary  judgment

with respect  to three of the  counts but denied the  motion with

respect to  the other two counts.  The case proceeded to trial on

those  two counts  which  encompassed four  claims:   (1)  racial

harassment by co-employees  in violation of Title VII; (2) racial

harassment by co-employees in violation of Chapter 151B; (3) race

discrimination regarding terms  and conditions  of employment  in

violation  of Title  VII; and  (4) race  discrimination regarding

terms and conditions of employment in violation of Chapter 151B.

                               -7-

          During trial,  evidence was  presented relating  to all

four claims.  That evidence included testimony about the comments

allegedly made by Mitchell on or before March 16 and how Mitchell

allegedly  coerced  Lattimore into  performing  work inconsistent

with his medical restriction thereby causing the March 16 injury.

At the conclusion of Lattimore's case and, again, at the close of

the evidence, Polaroid moved for judgment as a matter of law with

respect to all  four claims.  The grounds for  those motions were

essentially the  same as  the grounds  relied upon  in Polaroid's

previous  motion for  summary  judgment.    Like the  motion  for

summary judgment, the  motions for  judgment as a  matter of  law

were denied.

          The District Judge  charged the jury on all four claims

but  a  questionnaire  submitted  to  the  jury  asked  only  for

determinations  of  whether  Lattimore was  "racially  harassed,"

whether any such harassment proximately caused injury and, if so,

the amount of damages to be awarded.1  See Appendix A.2  The jury                                                    

answered the  first two  questions in  the affirmative  and fixed

damages at $400,000.

          After denying  Polaroid's motion  for a new  trial, the

District Court  entered judgment for  Lattimore in the  amount of

                                                  

1     Polaroid's   counsel  did   raise  an   objection  to   the
questionnaire, but that objection appeared to be directed only to
the  time frame  during  which the  alleged  harassment may  have
occurred.

2   In his brief,  Lattimore's counsel erroneously  describes the
questionnaire    as    asking   whether    Polaroid   "unlawfully
discriminated."  Appellee's Br. at 3.

                               -8-

$562,000  representing  the  damages   fixed  by  the  jury  plus

interest.  It is from that judgment that Polaroid appeals.

          In its appeal, Polaroid asserts that the District Court

erred in  denying Polaroid's  motion for summary  judgment and/or

judgment as a matter of law  and in denying Polaroid's motion for

a new trial.  Our analysis  is limited to reviewing the denial of

the   motion  for  judgment  as  a  matter  of  law  because  the

conclusions we reach render the remaining claims of error moot.

                            Discussion                                      Discussion                                                

          Polaroid argues  that it was entitled to  judgment as a

matter  of law on the harassment claims asserted under both Title

VII and Chapter 151B  because those claims were beyond  the scope

of Lattimore's  administrative charge.    Polaroid also  contends

that judgment in its favor should have been entered regarding the

Title VII harassment claim because Lattimore provided no evidence

that  Polaroid  knew  or   should  have  known  of   the  alleged

harassment.   Finally,  Polaroid  asserts that  the Chapter  151B

harassment claim is barred  because the administrative charge was

not filed  within the period of time  prescribed by Massachusetts

law.

          With  respect  to  the discrimination  claims  Polaroid

argues  that  Lattimore failed  to establish a  prima facie  case                                                                     

because  he presented no evidence that he was totally disabled, a

sine  qua  non  of eligibility  for  continued  STD  status.   In                        

addition, Polaroid maintains that  it is entitled to  judgment on

the discrimination claims because there was insufficient evidence

                               -9-

that  its proffered  reason for  denying Lattimore  continued STD

status  and  later  terminating his  employment  was  pretextual.

Finally, Polaroid asserts that the Title VII discrimination claim

fails due to the absence of any evidence of discriminatory intent

on the part of Polaroid.

                      I.  Standard of Review                                I.  Standard of Review                                                      

          We  review,  de novo,  a District  Court's denial  of a                                        

motion for judgment as a matter of law.  Sandy River Nursing Care                                                                           

v.  Aetna Casualty, 985 F.2d 1138, 1141 (1st Cir.), cert. denied,                                                                          

510 U.S. 818,  114 S. Ct. 70 (1993).  Like the District Court, we

are required to consider the evidence in the light most favorable

to the party against whom the  motion is directed and to draw all

reasonable inferences  favorable to  that party.   Aetna Casualty                                                                           

Surety Co. v. P&amp;B Autobody, 43 F.3d 1546, 1556 (1st Cir. 1994).                                    

                    II.  The Harassment Claims                              II.  The Harassment Claims                                                        

          Harassment based on membership  in a protected class is

one  form of  employment discrimination.   In  sex discrimination

cases,  we have  recognized  that workplace  harassment may  take

either of  two forms.   It may  consist of promises  of favorable

treatment or  threats  of  unfavorable  treatment  calculated  to

coerce an  employee into submitting to  unwelcome sexual advances

(i.e.,  quid pro  quo harassment).   Lipsett  v. Univ.  of Puerto                                                                           

Rico, 864 F.2d  881, 897 (1st Cir. 1988).   Alternatively, it may              

consist  of offensive,  gender-based conduct  that is  "severe or

pervasive enough to create an objectively hostile or abusive work

environment -- an environment that a reasonable person would find

                               -10-

hostile or  abusive" and is subjectively perceived  by the victim

to be abusive.   Harris v. Forklift Systems,  Inc., 510 U.S.  17,                                                            

21, 114  S. Ct. 367, 370 (1993).   While the concept  of quid pro                                                                           

quo harassment  has no application to  race discrimination cases,             

the concept of hostile environment  harassment does.  Daniels  v.                                                                       

Essex  Group, Inc.,  937 F.2d  1264 (7th  Cir. 1991);  Johnson v.                                                                        

Teamsters  Local Union No. 559,  1995 WL 355304  (D. Mass. 1995),                                        

appeal docketed, No. 87-215 (1st Cir. Oct. 25, 1995).                         

          Hostile     environment    harassment     is    readily

distinguishable from "job status" discrimination, another type of

employment discrimination  that occurs when action  is taken that

adversely  affects  an  employee's  job  status,  remuneration or

benefits  and it  is based  upon the  employee's membership  in a

protected  class.  See,  e.g., Tart v. Hill  Behan Lumber Co., 31                                                                       

F.3d 668, 672  (8th Cir.  1994). Thus, when  both harassment  and

"job status"  discrimination claims  are made, they  are analyzed

separately.      See,   e.g.,   Lipsett,  864   F.2d   881   (sex                                                 

discrimination);  Edwards v. Wallace  Community College,  49 F.3d                                                                 

1517  (11th Cir.  1993)  (race  discrimination).   A  job  status

discrimination  claim is  not converted  into a  harassment claim

simply because it is labeled as such.

          In this case, Lattimore's harassment claims are hostile

work environment  claims.  Moreover, although  the administrative

charge relating  to the denial of  workers' compensation benefits

and continued STD status  uses the word "harassment,"  that label

does  not alter  the fact  that the  harassment claims  are based

                               -11-

entirely upon the  comments allegedly made  by Mitchell and  upon

the allegation  that Mitchell coerced Lattimore  to perform tasks

inconsistent with  his medical restriction.   Clearly the alleged

harassment must  have  occurred  on or  before  March  16,  1989,

because that is when Lattimore ceased work and, therefore, was no

longer  subject  to  any  hostile  work  environment.    That  is

confirmed  by Lattimore's  brief which  describes  the harassment

claims  as  being  "for  the  March  1989  events  which  led  to

Lattimore's total disability."  Appellee's Br. at 2.

          Polaroid does not seriously question  whether the March

1989 conduct  alleged by  Lattimore was  so severe  and pervasive

that it created a hostile work environment.  Polaroid's principal

argument is that  the harassment claims  are barred because  they

are  beyond  the  scope  of the  administrative  charge  filed by

Lattimore.

          Both Title VII and Chapter 151B  require an employee to

file an administrative  charge as a prerequisite to  commencing a

civil  action for  employment discrimination.   See  42 U.S.C.                                                                

2000e-5(f); Mass. Gen. L. ch. 151B,    5-9.  The  purpose of that

requirement  is to provide the employer with prompt notice of the

claim and to create  an opportunity for early conciliation.   See                                                                           

Powers  v.  Grinnell  Corp., 915  F.2d  34,  37  (1st Cir.  1990)                                     

(addressing charge requirements under the ADEA); Ruffino v. State                                                                           

Street Bank  and Trust  Co., 908  F. Supp.  1019, 1037 (D.  Mass.                                     

1995).

          That purpose  would be frustrated if  the employee were

                               -12-

permitted to allege  one thing in  the administrative charge  and

later allege  something entirely different in  a subsequent civil

action.    Consequently,  we  have  stated  that,  in  employment

discrimination  cases, "[t]he scope of the civil complaint is . .

. limited by the charge filed with the EEOC and the investigation

which can reasonably  be expected  to grow out  of that  charge."

Powers, 915 F.2d at 38 (quoting Less v. Nestle Co.,  705 F. Supp.                                                            

110, 112 (W.D.N.Y. 1988));  see also Johnson v. General Electric,                                                                          

840 F.2d 132, 139 (1st Cir. 1988).

          In  cases where, as here, the employee acts pro se, the                                                                      

administrative charge  is liberally construed in  order to afford

the complainant the benefit of any reasonable doubt.  Westphal v.                                                                        

Waukesha Dresser/Waukesha  Engine Div.,  855 F. Supp.  1009, 1015                                                

(E.D.  Wis. 1994); Pickney  v. Am. Dist.  Tel. Co.,  568 F. Supp.                                                            

687, 690 (E.D. Ark.  1983).  As we have said, an  employee is not

required to comprehensively set  forth with "literary exactitude"

all of  the facts and  theories upon  which his or  her claim  is

based.  See Powers, 915 F.2d at 38 (citations omitted).                            

          However, pro se status does not relieve an employee  of                                   

the obligation  to meet  procedural  requirements established  by

law.   See United States  v. Michaud, 925  F.2d 37, 41  (1st Cir.                                              

1991).  Even  a pro se  complainant is  required to describe  the                                

essential nature of  the claim and to identify  the core facts on

which it rests. Id.   Moreover, the latitude  extended in pro  se                                                                           

employment  discrimination cases does  not allow  the complainant

"to file general charges  with the [administrative agency] .  . .

                               -13-

and  then expect that this  allegation will permit  all claims of

race-based discrimination  in a subsequent  law suit."   Tart, 31                                                                       

F.3d at 673  (quoting Rush  v. McDonald's Corp.,  966 F.2d  1104,                                                         

1112  (7th Cir. 1992)).   Nor does it  entitle the complainant to

make  a specific  claim based  on one  set of  facts and,  later,

assert  an entirely  different  claim based  on  a different  and

unrelated set of facts.  Pickney, 568 F. Supp. at 690.                                          

          In this case, Lattimore's administrative charge plainly

and  specifically  describes   his  claim  to  be   that  he  was

discriminated against because, unlike  white workers who had been

injured and  applied for  workers' compensation benefits,  he was

directed to return to work and  was fired when he refused.  Those

allegations   relate  solely  to  employment  decisions  made  by                                                                 

Polaroid after Lattimore's March  16 injury and cannot reasonably                        

be  construed  to  include  any  harassment  by  Mitchell  before                                                                           

Lattimore's injury.

          Indeed,  there are  indications that  Lattimore himself

did not  consider the events occurring before March 16 to be part

of  his  administrative  charge.    The  pro  se  complaint  that                                                          

Lattimore filed in  the District Court nearly  three years later,

although  more detailed  than  the  administrative  charge,  also

focused  entirely on Lattimore's removal  from STD status and his

subsequent termination which he attributed to his application for

workers' compensation  benefits and the  fact that he  was black.

Like the administrative  charge, it  failed to  mention any  pre-

injury harassment by Mitchell or anyone else.  That claim was not

                               -14-

raised until ten months later when an amended complaint was filed

by Lattimore's counsel.

          For many  of the reasons already  mentioned, we further

find that the  harassment claims were  not reasonably within  the

scope of  an agency investigation  of Lattimore's  administrative

charge.    An  investigation  is  a  systematic  inquiry  into  a

particular matter.  When it  is launched in response to  a charge

of  employment discrimination,  the  direction and  scope of  the

investigation  are guided  by  the allegations  contained in  the

charge.  Although  an investigation is  not strictly confined  to

allegations  in the charge, it is not a "fishing expedition" that

should be expected to extend to matters unrelated to the charge.

          Here,  Lattimore's  charge focused  exclusively  on his

termination  and  the  events leading  up  to  it,  all of  which

occurred  after his  injury.   It contains no  hint of  any claim

that, before his  injury, Lattimore was  harassed by Mitchell  or

anyone else.  It makes no mention of Mitchell or any incidents of

harassment.

          The two claims are based upon different facts that  are

separate  and distinct  both  qualitatively and  temporally.   In

addition, they  relate to  the conduct of  different individuals.

The record indicates that the decision to discontinue Lattimore's

STD  status  was  made by  the  Board  and  that the  termination

decision  was made  by  Montes after  consulting with  Polaroid's

human resources department.   On the other hand, it  was Mitchell

who  engaged  in  the  alleged  harassment.    Therefore,  it  is

                               -15-

difficult  to   see  how  Mitchell's  conduct   before  March  16

reasonably  could  be  expected to  be  within  the  scope of  an

agency's investigation of the charge.  See Tart,  31 F.3d at 672-                                                         

73.

          Our  finding in  this  regard is  buttressed by  MCAD's

Notice of  Final Disposition which  indicates that, in  fact, its

investigation  did  not  extend  to  any  alleged  harassment  by

Mitchell.    MCAD's  findings focus  exclusively  on  Lattimore's

termination  and do not include  any reference to  claims of pre-

injury harassment.

          Having  decided that the  harassment claims  are beyond

the scope of Lattimore's  administrative charge, we conclude that

judgment  as  a  matter of  law  should  be entered  in  favor of

Polaroid with respect to the  harassment claims made pursuant  to

both Title VII and  Chapter 151B.  Accordingly, there  is no need

for  us  to  consider Polaroid's  arguments  that  the Title  VII

harassment  claim fails due to  the absence of  any evidence that

Polaroid  knew or  should have  known of  the alleged  harassment

and/or that the Chapter 151B harassment claim is time barred.

            III.  The Job Status Discrimination Claims                      III.  The Job Status Discrimination Claims                                                                

          The  analytical  framework  applicable   to  employment

discrimination  claims where  there  is no  "direct" evidence  of

discrimination  is well  established.   First, the  employee must

prove a prima facie  case by demonstrating that he or she belongs                             

to  a protected class  and was denied a  position or benefits for

which  the employee was qualified.  The burden then shifts to the

                               -16-

employer to  present a  legitimate non-discriminatory  reason for

its  action.    If that  is  done,  the employee  is  afforded an

opportunity  to prove  that the  proffered reason  is pretextual.

See McDonnell Douglas Corp.  v. Green, 411 U.S. 792,  802-805, 93                                               

S.  Ct. 1817, 1824-26 (1973); Smith v. Stratus Computer, Inc., 40                                                                       

F.3d  11, 15-16 (1st Cir. 1994),  cert. denied,     U.S.    , 115                                                        

S.  Ct.  1958 (1995);  Blare v.  Hicky Injection  Molding Systems                                                                           

Boston, Inc., 646 N.E.2d 111, 114-17 (Mass. 1995).                      

          It is at this point  that Massachusetts law and federal

law   diverge.     Since  Massachusetts   is  a   "pretext  only"

jurisdiction, proof of pretext is sufficient to warrant a finding

of  discrimination under Chapter 151B.  Blare, 646 N.E.2d at 117.                                                       

In  contrast, Title  VII requires  that, in  addition  to proving

pretext, the  employee  also must  prove  that the  employer  was

motivated by a discriminatory  purpose.  St. Mary's Honor  Center                                                                           

v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993); Smith,                                                                          

40 F.3d at 16 (employee has ultimate burden of  proving "(1) that

the  employer's  articulated  reason  for the  job  action  is  a

pretext, and (2) that the true reason is discriminatory");  Woods                                                                           

v. Friction Materials,  Inc., 30  F.3d 255, 260  (1st Cir.  1994)                                      

(employee must prove "both that the employer's articulated reason                                    

is false, and that  discrimination was the actual reason  for its

employment action.").  When  the prima facie case is  very strong                                                      

and disbelief of the  proffered reason provides cause to  believe

that  the employer  was  motivated by  a discriminatory  purpose,

proof  of pretext "may" be  sufficient.  Hicks,  509 U.S. at 511,                                                        

                               -17-

113 S. Ct.  at 2749; Smith, 40 F.3d at 16;  Woods, 30 F.3d at 261                                                           

n.3;   see also Connell  v. Bank  of Boston, 924  F.2d 1169  (1st                                                     

Cir.), cert. denied, 501 U.S. 1218, 111 S. Ct. 2828 (1991).                             

          Polaroid argues  that it  is entitled to  judgment with

respect  to both the  Chapter 151B  and Title  VII discrimination

claims because Lattimore's evidence was insufficient to establish

either a prima facie case or that Polaroid's proffered reason was                              

pretextual.   Polaroid also argues that the Title VII claim fails

for  the  additional reason  that there  was  no evidence  of any

discriminatory intent on the part of Polaroid.

                     A.  The Prima Facie Case                               A.  The Prima Facie Case                                                       

          Ordinarily, when  a claim of  discriminatory firing  is

made, the "qualified"  prong of the  employee's prima facie  case                                                                     

consists of proof that the employee was adequately performing the

job in question.  However, this case is somewhat atypical because

Lattimore does not claim that he  was fired despite being able to

work.   Instead, Lattimore claims  that he was  denied STD status

even though he was physically unable to work and that the loss of                                          

STD status resulted in his termination.  Consequently, the  issue

is whether  Lattimore's evidence was  sufficient to make  a prima                                                                           

facie showing that he was qualified for STD status.               

          Under  Polaroid's  STD  policy,  an  employee  must  be

totally disabled from performing his or her job or any other work                 

offered by  the company in order  to qualify for STD  status.  As

already   noted,  an  employee   may  establish   eligibility  by

submitting  periodic reports  from a  physician stating  that the

                               -18-

employee is disabled.  If the Medical Review Board disagrees with

the physician's opinion,  it may  require an IME  to resolve  the

dispute.

          Polaroid  argues  that  the  record is  devoid  of  any

evidence that Lattimore was "totally" disabled.  That argument is

based  principally on  testimony by  Dr. Hillier  conceding that,

notwithstanding  his previous  reports to  Polaroid  stating that

Lattimore  was totally  disabled, Lattimore  was able  to perform

limited forms of  light duty work at the time  his STD status was

discontinued.

          However,  contrary  to   Polaroid's  contention,   that

testimony  does not  negate  Dr. Hillier's  previously  expressed

opinion that, in August  of 1989, Lattimore was "disabled."   Nor

does it preclude a finding that Lattimore  was "totally disabled"

within the meaning of Polaroid's STD policy.

          It is  clear that, both  in August  of 1989 and  at the

time of trial, Dr.  Hillier considered Lattimore totally disabled

from  performing  his  usual  job and  felt  it  inadvisable  for

Lattimore to work at all.  The fact that Dr.  Hillier also viewed

Lattimore as capable of performing some light duty tasks does not

undercut that opinion.   Furthermore, Dr. Hillier's assessment is

perfectly  compatible with  Polaroid's own  definition of  "total

disability" because on August 23, when Lattimore  was directed to

return to work, he  was told that, after two weeks of unspecified

light duty, he would  be expected to work without  restriction of

any  kind.  Thus, Lattimore was not offered work that Dr. Hillier

                               -19-

considered him able to perform.

          Moreover, in  addition to  Dr. Hillier's  testimony and

reports,  there was testimony from Lattimore  himself that he was

physically  unable to  do any  work because  of his  back injury.

Thus,  there  was sufficient  evidence  to  establish the  "total

disability"  element  of  Lattimore's  prima  facie  case.    Any                                                             

conflict between that evidence  and conflicting medical  evidence

presented by Polaroid, in rebuttal, was  a matter for the jury to

resolve.

                           B.  Pretext                                     B.  Pretext                                                

          Lattimore's   effort   to   prove   pretext   consisted

principally of   evidence that,  in discontinuing his  STD status

and later terminating his  employment, Polaroid deviated from its

established  policies and  practices.   Polaroid argues  that any

such  irregularities were  insufficient, as  a matter of  law, to

prove pretext.

          Most of  the "deviations" cited by  Lattimore amount to

little more  than quibbling  over semantics (e.g.,  whether there

was  a  "disagreement"  between  Polaroid and  Dr.  Hillier  that

justified Polaroid's  request for  an IME).   However,  there was

evidence from which a  jury reasonably could have found  that the

decision to  discontinue Lattimore's  STD status was  made before

the Medical Review Board  had obtained the results of  Dr. Ramos'

IME.  As already  noted, Dr. Ramos' report  was not issued  until

approximately one  week after the Board's  decision and Williams'                                       

testimony  that  he  learned  of  the  results  via  a  telephone

                               -20-

conversation with Dr. Ramos,  was contradicted by Dr. Ramos.   In

addition,  Vincent Pina,  a  Polaroid  director, testified  that,

under Polaroid's STD policy, it was unimaginable that an employee

who had provided physicians' reports indicating  disability would

be  removed from  STD status  before the  Board reviewed  the IME

results.

          There, also, was evidence  suggesting that the  results

of the  IME may have been preordained.  If a jury determined that

Williams never talked with Dr. Ramos about his findings, it could

infer  that, in  alluding  to those  findings  in his  August  23

letter, Williams must  have known,  in advance of  the IME,  what

those  findings were going to be.  Lattimore's testimony that the

examination  was  a perfunctory  one,  although  disputed by  Dr.

Ramos,  and the  evidence  that Dr.  Ramos  did not  perform  any

diagnostic  examinations or  review  Lattimore's medical  records

could provide additional support for such an inference.

          In  short, although  the evidence  of pretext  is thin,

disputed  and  susceptible  to  varying  interpretations,  it  is

sufficient  to  create  a  jury  question.    Accordingly,  since

Massachusetts  law provides  that  an employee  may prevail  upon

proof  of pretext,  alone,  the District  Court  did not  err  in

denying  Polaroid's motion for judgment  as a matter  of law with

respect to the Chapter 151B claim.

                    C.  Discriminatory Intent                              C.  Discriminatory Intent                                                       

          As already noted, Title VII requires proof of something

more  than pretext.   It  also  requires proof  of discriminatory

                               -21-

intent.     Polaroid argues  that there is  no evidence that  its

decisions  to  discontinue  Lattimore's STD  status  and,  later,

terminate his employment,  were motivated  by any  discriminatory

intent.  We agree.

          Lattimore's claim  of  discriminatory intent  is  based

entirely  upon  allegations that  Mitchell  was  involved in  the

decisions  and  upon the  fact  that  Polaroid's human  resources

administrator  was called to the scene when Lattimore returned to

the  plant  on  August 24  and  the  discussion  between him  and

Williams apparently became heated.

          As already noted, Polaroid presented evidence  that the

decisions at  issue were made  by the Board  and by Montes.    In

support  of his  assertion  that Mitchell  participated in  those

decisions, Lattimore  cites evidence  that, until shortly  before

Lattimore's termination, Mitchell retained custody of Lattimore's

time cards and received  copies of all medical  reports regarding

Lattimore's physical condition.   However, that evidence does not

tend  to  prove  anything  other  than  that  Mitchell  may  have

continued  to be  Lattimore's  "supervisor" during  that  period.

That fact,  alone, has little significance  inasmuch as Lattimore

was  out of  work and  not being  supervised.   By itself,  it is

insufficient  to support  a  reasonable  inference that  Mitchell

participated,  in any way,  in the  decision to  remove Lattimore

from STD status or  to fire him.  Nor  does it provide any  basis

for concluding  that any  alleged racial prejudice  on Mitchell's

part infected those decisions.

                               -22-

          Similarly,   the   fact   that  Florence   Ramos-Jones,

Polaroid's   human   resources   administrator,   was   asked  to

participate in  the discussion with  Lattimore on August  24 does

not establish  any reasonable ground for  finding that Polaroid's

decision was motivated by racial animus.   Lattimore argues that,

because   Ms.  Ramos-Jones   dealt  with  "racial   issues,"  her

participation   is  evidence  that  Polaroid  viewed  Lattimore's

termination  as  a  "racial matter."      However,  there was  no

evidence regarding  why Ms.  Ramos-Jones became involved  in that

discussion.    If,  for  example,  she  became  involved  because

Lattimore,  himself,  raised the  question  of  racial bias,  her

participation  would not  provide  any basis  for inferring  that

Polaroid's decision was discriminatory.

          In  the absence  of any  evidence  regarding Mitchell's

involvement in the termination decisions or the circumstances and

nature  of  Ms.  Ramos-Jones'  participation  in  the  August  24

discussion, there  is no  justification for the  inferential leap

urged  by  Lattimore.   Submitting  the  issue of  discriminatory

intent to a jury on this record would amount to nothing more than

an invitation to  speculate.  Therefore, Polaroid  is entitled to

judgment  as  a   matter  of   law  on  the   Title  VII   status

discrimination claim.

                          IV.  New Trial                                    IV.  New Trial                                                  

          Having  determined   that  Polaroid  was   entitled  to

judgment as a matter of law on three  of Lattimore's four claims,

we  turn our attention  to whether that  determination requires a

                               -23-

new  trial. We answer that question in the affirmative because it

is impossible to ascertain  whether or to what extent  the jury's

verdict was based on the three flawed claims.

          As already  noted, the  only document completed  by the

jury was a  one page  "jury questionnaire" that  called upon  the

jury to  answer three questions.   Those questions  asked whether

Lattimore was harassed; whether  any such harassment  proximately

caused injury  to him and,  if so,  the amount of  damages to  be

awarded.   See  Appendix A.   Because  the document  was entitled                        

"questionnaire" rather than "verdict" and because it consisted of

nothing  more than "written  questions susceptible of categorical

or  other brief  answer" (Fed.  R.  Civ. P.  49(a)), we  view the

jury's response as a "special verdict" within the meaning of Rule

49(a).

          In  any  event,  under those  circumstances,  it  makes

little  difference whether  the  response is  characterized as  a

general  or  special  verdict.   It  is  settled  law that,  when

multiple  claims are  submitted  to a  jury  and only  a  general

verdict  is returned,  a new  trial is  required if  some of  the

claims   should  not   have   been  submitted   and  the   jury's

consideration  of those  claims  may have  affected the  verdict.

Sunkist Growers, Inc.  v. Winckler &amp;  Smith Citrus Products  Co.,                                                                          

370 U.S.  19, 29-30, 82 S. Ct. 1130, 1136 (1962); see also Brochu                                                                           

v. Ortho Pharmaceutical,  642 F.2d  652, 662 (1st  Cir. 1981).                                    

Although we know of no authority directly on  point, we hold that

this  principle is equally applicable to special verdicts.  A new

                               -24-

trial  ordinarily  is required  when  a  special verdict  finding

encompasses multiple  facts and claims  some of which  should not

have  been  submitted  to  the  jury.    In either  case,  it  is

impossible  to  tell  whether  consideration  of  the  improperly

submitted claims may have affected the verdict.

          In this  case, we believe  the jury's verdict  may have

been affected  by its consideration of  the erroneously submitted

claims.    If  the  finding  that  Lattimore  was  "harassed"  is

construed to mean that the jury found for Lattimore solely on the

basis of the harassment claims, the verdict was based entirely on

those  claims.   Alternatively,  if the  finding of  "harassment"

resulted from  consideration of both  the harassment and  the job

status  discrimination claims,3   there  is no  way  to determine

whether or  to  what extent  the harassment  claims affected  the

verdict.  In either case, a new trial is required.

                            Conclusion                                      Conclusion                                                

          For all of the foregoing reasons we vacate the judgment

entered by the  District Court,  reverse in part  and remand  the

case  for  a   new  trial   with  respect  to   the  job   status

discrimination claim asserted pursuant to Chapter 151B.

          Reversed in  part, vacated in  part and  remanded.   No                                                                           

costs.               

                                                  

3  The evidence presented related to both the harassment  and job
status  discrimination claims and  both types of  claims were the
subject of counsels' arguments and the court's charge.

                               -25-

                                            "Concurrence Follows"

                               -26-

          SELYA,  Circuit Judge  (concurring).   I join  fully in                    SELYA,  Circuit Judge  (concurring).                                         

Judge Torres' comprehensive opinion.  It is, however, unfortunate

that neither attorney suggested that the verdict form require the

jury to report the  results of its deliberations count  by count.

Though,  ordinarily, little can  be gained  by crying  over spilt

milk, past  mistakes sometimes teach  valuable lessons.   Thus, I

write separately to emphasize, for the benefit of the trial bench

and bar in days to come, that the need  for retrial may well have

been avoided in this instance by the simple expedient of taking a

separate  verdict on  each statement  of claim.   I  commend that                                                        

practice to district judges in future multi-count cases.

                               -27-
