
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        Nos. 95-1690             95-1913                                  SCOTT P. HAMMOND,                        Plaintiff, Appellee, Cross-Appellant,                                          v.                             T.J. LITLE & COMPANY, INC.,                        Defendant, Appellant, Cross-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Zachary Karol, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Anthony M.  Feeherry,  with  whom  Paula M.  Bagger  and  Goodwin,            ____________________               ________________       ________        Procter & Hoar were on brief for appellant.        ______________            Michael J. Liston with  whom Glass, Seigle  & Liston was on  brief            _________________            _______________________        for appellee.                                 ____________________                                    April 30, 1996                                 ____________________                      BOWNES, Senior Circuit  Judge.  This appeal  arises                      BOWNES, Senior Circuit  Judge.                              _____________________            out of a dispute over the compensation terms of an employment            contract.      Appellee/Cross-Appellant   Scott  P.   Hammond            ("Hammond")   filed   suit  after   he   was  discharged   by            Appellant/Cross-Appellee T.J.  Litle  & Company,  Inc.  ("the            Company"),  alleging that  the Company  had breached  certain            terms  of his employment contract  entitling him to shares of            stock  in the Company, and the implied covenant of good faith            and  fair dealing.  After a bifurcated trial in which certain            issues  were decided by the jury and others by the magistrate            judge,   the  Company  appeals   and  Hammond  cross-appeals.            Finding no error, we affirm.                                    I. BACKGROUND                      In the  spring of  1986, Thomas J.  Litle ("Litle")            was starting up the Company and Hammond was about to graduate            from  the Harvard  Business School.   On  May 4,  1986, Litle            orally  offered Hammond  the  position of  Vice President  of            Finance  and  Administration,  with  a  compensation  package            including a current annual cash salary  of $45,000, the right            to purchase a  maximum of 100 shares of  non-voting founders'            stock in the  Company at  a subscription price  of $1.00  per            share, and deferred  compensation of $10,000  per year to  be            converted to additional shares  of stock at Hammond's option.            Hammond  accepted the  package  with the  understanding  that            there would  be further negotiation regarding  both a vesting                                         -2-                                          2            schedule for the  100 shares  and the  repurchase rights  the            Company  would  have  with  respect  to  vested  shares  upon            termination of his employment.                        Hammond began employment  with the Company  on June            9, 1986.  In July of 1986, the Company's outside counsel sent            Hammond, at his request,  a draft Stock Restriction Agreement            and  a draft  Repurchase Agreement.   Hammond  then  met with            Litle  to discuss the  draft agreements and  requested a more            favorable  vesting  schedule for  his  100  shares than  that            reflected in  the draft Repurchase Agreement.   Litle agreed,            approving the change  with a handwritten note.   According to            the  vesting schedule  thus agreed  upon, 16%  of the  shares            would vest on March 31,  1987, 2% would vest each  month from            April 1, 1987 through  February 28, 1990, and 14%  would vest            on March  31, 1990.  Litle and  Hammond agreed that the draft            agreements were acceptable  in all other respects.  In August            of 1986, outside counsel  prepared and sent Hammond execution            copies   of  the   agreements.    The   Repurchase  Agreement            incorporated  the  new  vesting   schedule,  and  the   Stock            Restriction  Agreement  provided  that  a  stockholder  whose            employment was terminated "for  cause" was required to tender            his  vested  shares to  the  Company for  repurchase  at fair            market value.                        In September of 1986, Hammond and Litle met for the            purpose of executing the agreements, but Hammond unexpectedly                                         -3-                                          3            requested  a  number of  substantive changes.   Based  on his            belief that  the  parties had  completed negotiations,  Litle            rejected Hammond's  proposed changes and  the agreements were            not signed.                      In a letter to Hammond  dated March 31, 1987, Litle            took the  position that agreement  had not  yet been  reached            regarding  Hammond's stock  participation.    Hammond  became            upset  and refused  to report  for work  until the  issue was            settled.  At a meeting on April 14,  1987, Litle told Hammond            that  he could acquire a  maximum of 66  2/3 shares of stock,            that  25% of  the shares  would vest  on each  anniversary of            Hammond's employment  date of June  9, 1986, and  that before            half of  the shares (33 1/3) would begin to vest according to            that  schedule, Hammond  would have  to meet  certain as  yet            undefined performance standards.   Hammond  became angry  and            refused to accept  the changes.  In a letter to Hammond dated            April 17, 1987, Litle  memorialized the same terms, chastised            Hammond for his recent behavior, warned him that a recurrence            would be deemed a  tender of resignation that  would probably            be accepted, but encouraged him to attempt to redeem himself.            The  new terms also were  confirmed in a  letter from General            Manager Bruce  Alemian ("Alemian") to Hammond  dated July 13,            1987.  The evidence was  in dispute regarding whether Hammond            ever accepted the new  terms.  The Company contended  that he            did  by reporting to work  and tendering a  check for $66.67.                                         -4-                                          4            Hammond contended that he continued to  insist on 100 shares,            and  tendered $100 but paid $66.67 because that was all Litle            would accept.                        At  a meeting  in December  of 1987,  Hammond again            complained that  he believed he  was entitled to  acquire 100            shares.  In an effort to settle matters, Alemian gave Hammond            a  positive performance  review and  offered him  the  33 1/3            performance shares if he would relinquish his claim to a full            100  shares.  Hammond refused and Litle withdrew the offer of            the performance shares.   On  January 27,  1988, Hammond  was            terminated.                                 II. PRIOR PROCEEDINGS                      In a Second Amended Complaint, Hammond alleged that            the Company had breached that part of his employment contract            entitling  him to acquire shares  of stock in  the Company by            breaching  the  implied  covenant  of  good  faith  and  fair            dealing,  terminating his  employment  because he  refused to            accept  Litle's unilateral alteration of his contract rights,            refusing  to issue  him  the 100  shares  due him  under  the            agreement, and  refusing to  issue him additional  shares for            deferred compensation.                        By  agreement  of   the  parties,  the  trial   was            bifurcated  into a jury phase and a jury-waived phase.  Phase            I was tried to a jury in June, 1994.  The issues for the jury            were:  (1) whether Hammond and the Company had entered into a                                         -5-                                          5            contract entitling Hammond to  acquire company stock; and (2)            if so, how many  shares Hammond was entitled to  receive upon            termination of  his employment.   Through answers  to special            questions  submitted by  the court, the  jury found  that the            parties  had entered  into a  contract and  that Hammond  was            entitled to 48 shares.                        Phase II was  tried to the court in December, 1994,            in  order  to  resolve  two remaining  issues:    (1) whether            Hammond had an obligation to offer the 48  shares back to the            Company for repurchase;  and (2) whether  the Company had  an            obligation to issue 5 additional shares to Hammond in lieu of            deferred compensation.  On June 7, 1995, the magistrate judge            issued a memorandum of  decision, answering both questions in            the negative.                                   III. DISCUSSION                      The Company appeals  the jury's determination  that            Hammond was entitled to 48 shares, and the magistrate judge's            determination  that Hammond  had no  obligation to  offer the            shares   back   for  repurchase.      Hammond  cross-appeals,            challenging  the  magistrate  judge's  conclusion   that  the            Company  need  not  issue  him shares  in  lieu  of  deferred            compensation.                        A.   The Jury's Determination That                            ______________________________                           Hammond Was Entitled To 48 Shares                           _________________________________                      The jury, answering special questions  submitted by            the court,  found that  Hammond and  the Company  had entered                                         -6-                                          6            into an agreement  in May  of 1986 entitling  Hammond to  100            shares  of the  Company's stock  upon  his acceptance  of the            Company's offer  of employment;  that this contract  was last            amended  in the summer of 1986; and that Hammond was entitled            to 48  shares of  stock as  of the  date  his employment  was            terminated.1                      The  Company  concedes that  there  was evidentiary            support for the jury's determination that a  contract for 100            shares was formed in May of 1986 and was last modified by the            vesting  schedule  agreed upon  in  the summer  of  1986, but            contends that  there was  no evidence to  support the  jury's            finding that Hammond was entitled to 48 shares.                        The court had instructed the jury that if it  found            (as it  did) that a contract for 100 shares was formed in May            of 1986 and  that it was last amended in  the summer of 1986,            then it  should  determine  the number  of  shares  to  which            Hammond was entitled according  to one of three alternatives:            First, the jury could award Hammond at least 36 shares, which            _____            represented the number of shares that had vested between June            of  1986  and January  31,  1988,  according  to the  vesting            schedule reflected  in the  execution copy of  the Repurchase                                            ____________________            1.  Hammond had  argued that the contract  was never modified            after May  of 1986 so that he was entitled to all 100 shares.            The  Company had argued that no contract was ever formed, but            that if there was a contract, it was last amended in April of            1987  as reflected in Alemian's letter of July 13, 1987.  The            jury rejected these alternatives.                                         -7-                                          7            Agreement  prepared  in August  of 1986.2   Second,  the jury                                                        ______            could  award Hammond 100 shares if it found that the contract            contained  an implied  term that  Hammond would  have a  fair            opportunity to earn all  100 shares and that the  Company had            breached  that term  by firing  him without  cause.3   If the            jury  found that  there was  such an  implied term,  but that            there was  cause for  terminating Hammond,  then he would  be            entitled to only  36 shares.4   Third, the  jury could  award                                            _____            Hammond some number  of shares  greater than 36  if it  found            that  he was an at-will employee who could be terminated with            or without  cause; that  the Company terminated  him "without            cause or in bad faith for the purpose of  preventing him from                                            ____________________            2.  According to  that vesting schedule, 16  shares vested as            of March 31, 1987, and 2 additional shares vested for each of            the next  10 months through Hammond's  termination on January            31, 1988, for a total of 36 shares.            3.  This instruction  was based on Anthony's  Pier Four, Inc.                                               __________________________            v. HBC Assocs.,  583 N.E.2d  806 (Mass. 1991),  in which  the            ______________            Supreme Judicial  Court stated that "the  implied covenant of            good  faith and  fair  dealing provides  'that neither  party            shall  do anything that will have the effect of destroying or            injuring the right of  the other party to receive  the fruits            of the contract.'"  Id. at 820 (citations omitted).                                __            4.  The court defined "cause," consistent with the definition            set  forth in Goldhor v.  Hampshire College, 521 N.E.2d 1381,                          _____________________________            1385  (Mass.  App. Ct.  1988), as  meaning  that "there  is a            reasonable basis for the employer to be dissatisfied with the            employee's   performance,  entertained  in  good  faith,  for            reasons  such as  lack of  capacity or diligence,  failure to            conform to usual  standards of conduct, or  other culpable or            inappropriate behavior, or  grounds for discharge  reasonably            related,  in the employer's honest judgment,  to the needs of            the  business .  .  . [w]hether  or  not you  agree  with the            employer's judgment."                                         -8-                                          8            getting  his shares;"  and  that "some  additional amount  of            shares was intended to compensate Mr. Hammond not for further            services  to be  performed after  January 31,  1988, but  for            having accepted employment  with the Company  back in May  or            June  of  1986  [and]  foregoing  other  possible  employment            opportunities."5                      The Company contends that  the jury must have based            its verdict  on the third alternative  under the instructions            since  it awarded Hammond neither 36 nor 100 shares, but that            there  was no evidence that any number of shares was intended            to compensate  Hammond  for  accepting  employment  with  the            Company and  foregoing other opportunities.   The Company did            not  object to the instruction that invited the verdict of 48            shares, and explicitly does not quarrel with that instruction            on appeal.  It concedes that  it forfeited its right to a new            trial by not moving for one in the district court pursuant to            Fed.  R.  Civ. P.  59(a),  but  asks that  we  remand  to the            district  court with  instructions to  enter judgment  for 36                                            ____________________            5.  This  instruction  was  based on  Massachusetts  case law            applying  the implied covenant of good faith and fair dealing            to  allow recovery  of compensation  already earned  where an            employer terminates an at-will employee  in bad faith for the            purpose  of depriving  him  of  compensation already  earned,            e.g.,  Cataldo v.  Zuckerman,  482 N.E.2d  849 (Mass.  1985);            ____   _____________________            Fortune v.  Nat'l Cash Register  Co., 364 N.E.2d  1251 (Mass.            ____________________________________            1977), or  without cause and  not in  bad faith but  with the            effect of  depriving  the employee  of  compensation  already            earned,  Gram v. Liberty Mut. Ins. Co., 461 N.E.2d 796 (Mass.                     _____________________________            1984);  Gram v. Liberty Mut.  Ins. Co., 429  N.E.2d 21 (Mass.                    ______________________________            1981).                                          -9-                                          9            shares.    As  Hammond  correctly points  out,  however,  the            Company also forfeited its right to a judgment for other than            48  shares by  failing to  raise the  issue in  a motion  for            judgment as a matter of law.  Fed. R. Civ. P. 50(a), (b).                        It  is  beyond  peradventure   that  in  order   to            challenge the sufficiency of the evidence on appeal,  a party            must first have  presented the claim  to the district  court,            either  by moving for judgment as a  matter of law before the            case  is submitted to the jury and renewing that motion after            the  verdict, Fed. R. Civ. P. 50(a),  (b), or by moving for a            new trial  pursuant to Fed.  R. Civ.  P. 59.   See Scarfo  v.                                                           ___ __________            Cabletron  Sys., Inc.,  54  F.3d 931,  948  (1st Cir.  1995);            _____________________            Velazquez v. Figuero-Gomez, 996  F.2d 425, 426-27 (1st Cir.),            __________________________            cert. denied, 114  S. Ct.  553 (1993); La  Amiga del  Pueblo,            ____  ______                           ______________________            Inc. v. Robles, 937 F.2d 689, 691 (1st Cir. 1991); Pinkham v.            ______________                                     __________            Burgess,  933  F.2d 1066,  1070  (1st Cir.  1991);  Jusino v.            _______                                             _________            Zayas, 875  F.2d  986, 991-92  (1st  Cir. 1989);  Wells  Real            _____                                             ___________            Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803,            ______________________________________________            810  (1st   Cir.),  cert.   denied,  488  U.S.   955  (1988).                                ____    ______            Otherwise, we  have  no decision  of  the district  court  to            review,  and will not review  the weight of  the evidence for            the first time on appeal.  La Amiga, 937 F.2d  at 691; Wells,                                       ________                    _____            850  F.2d at  810.   The  Supreme  Court has  stated that  an            appellate  court is  "without  power to  direct the  District            Court to  enter judgment  contrary to"  the verdict absent  a                                         -10-                                          10            Rule 50 motion in the district court.  Cone  v. West Virginia                                                   ______________________            Pulp & Paper Co., 330 U.S. 212, 218 (1947).             ________________                      Here, the Company did  not bring the asserted error            to  the  district  court's  attention  in  any  way.    After            Hammond's  case but before the close of all the evidence, the            magistrate  judge  informed  counsel   that  he  intended  to            instruct the jury that  it could award Hammond any  shares it            found were  intended as  consideration for his  accepting the            Company's  offer if it also  found that the  Company acted in            bad  faith  or without  cause  in discharging  Hammond.   The            Company  argued at that point  that there was  no evidence to            support such an instruction but never renewed the argument by            objecting to the instruction after it was given, or by moving            for  judgment as a matter of  law or for a  new trial on that            basis.6  At the close of all the evidence, the  Company moved            for judgment as a matter of  law, but argued only that  there            was  insufficient evidence  that a  contract to  purchase 100            shares of stock was  ever formed, or  that if a contract  was            formed,  it was  the one  for 66  2/3 shares  memorialized in            Alemian's letter to Hammond dated July 13, 1987.                                              ____________________            6.  We do  not mean to imply  that a failure to  object to an            instruction bars our  review of a  claim of insufficiency  of            the evidence if the appellant has moved in the district court                         __            for judgment  as a matter  of law or  for a  new trial.   See                                                                      ___            Boyle  v. United  Technologies  Corp., 487  U.S. 500,  513-14            _____________________________________            (1988); St.  Louis v. Praprotnik,  485 U.S.  112, 120  (1988)                    ________________________            (plurality  opinion of  O'Connor,  J., joined  by  Rehnquist,            White and Scalia, JJ.).                                         -11-                                          11                      We do not think that this  motion reasonably can be            read  as encompassing  the argument  that no  reasonable jury            could  return  a verdict  including  any  shares intended  as            consideration  for Hammond's  accepting the  Company's offer.            See Wells, 850 F.2d at 810  (motion for judgment as a  matter            ___ _____            of law must "be made with sufficient specificity to allow the            district judge  to understand  precisely why the  evidence is            insufficient" and "[a]ppellate review may be obtained only on            the specific ground stated in the motion").  Even if it could            be so read, it would not help the Company because  it did not            renew the  motion after  the verdict.   See  Fed. R.  Civ. P.                                                    ___            50(b); Velazquez, 996 F.2d at 426-27.                      _________                      The Company complains that  it could not have moved            for judgment as a matter of  law on the grounds asserted here            because the standard requires that the evidence be "such that            a  reasonable person  could be  led to  only  one conclusion,            namely that the  moving party  is entitled to  judgment as  a            matter of law."   Johnson v. Nat'l Sea  Prods., Ltd., 35 F.3d                              __________________________________            626,  630  (1st Cir.  1994).   The  Company asserts  that its            argument that the jury could not as a  matter of law conclude            that  Hammond was entitled to  48 shares was  not amenable to            that  standard because  the jury  could have  reached several            conclusions --  that Hammond  was entitled  to 8.34,  16, 36,            66.67 or 100 shares.                                           -12-                                          12                      The Company misreads  our statement in the  Johnson                                                                  _______            case.  A party may move for judgment as a matter of law on an            issue by issue basis; it does  not have to be all or nothing.            See Fed. R.  Civ. P. 50(a)(1).   The Company knew  before the            ___            case went  to the  jury, when it  first should have  made the            argument  it   now  presses,  that  the   magistrate  judge's            instruction  would allow the jury to find that some number of            shares was intended as consideration for Hammond's acceptance            of the Company's offer.   The Company could have  argued then            and  after the verdict, as it has here, that the evidence was            legally  insufficient to support such a finding.7  By failing            to do so, it forfeited the claim.                      We therefore review only  for plain error resulting            in  a manifest miscarriage of justice, see Simon v. Navon, 71                                                   ___ ______________            F.3d 9, 13  (1st Cir. 1995),  and find that  there was  none.            "It is fundamental  to our system of jurisprudence that, when            the evidence as a  whole can plausibly support more  than one            view  of  a  situation,  '[j]urors, using  common  sense  and            collective experience assess credibility and probability, and            proceed to  make evaluative  judgments, case by  case.'"   La                                                                       __            Amiga, 937 F.2d at 691 (citations omitted).  Though we see no            _____            evidence  of  an  explicit  agreement  that  12  shares  were                                            ____________________            7.  The  Company also could  have moved for a  new trial or a            remittitur under  Fed. R. Civ. P.  59 on that basis.   See 11                                                                   ___            Charles A. Wright  et. al, Federal Practice and  Procedure                                          _______________________________            2805, 2815 (1995).                                         -13-                                          13            intended  as  consideration   for  Hammond's  accepting   the            Company's offer of employment, there was evidence that before            accepting the  offer, Hammond  discussed with Litle  how much            compensation he would  need to forego  his other offers,  and            that his  almost exclusive concern regarding compensation was            shares of  stock, not cash  salary.  Alternatively,  the jury            may simply have  found that  a contract was  formed and  last            amended in the summer  of 1986, but that neither  the minimum            of 36 shares nor  the maximum of 100 shares  was appropriate.            We doubt that  such an  outcome constitutes error  at all  in            this particular case,  and it  clearly does not  amount to  a            manifest  miscarriage  of justice.    We  therefore will  not            disturb the verdict, particularly  because the Company failed            to  preserve the  argument  for appeal.    See Braunstein  v.                                                       ___ ______________            Massachusetts Bank & Trust Co., 443 F.2d 1281, 1285 (1st Cir.            ______________________________            1971).                        B.   The Magistrate Judge's Determination                           ____________________________________                           That Hammond Had No Obligation To Offer                           _______________________________________                           The Shares Back For Repurchase                           ______________________________                      After Phase  II of the trial,  the magistrate judge            found,  based on the evidence and the jury's finding that the            parties had  reached agreement  regarding vesting  during the            summer of 1986, that the parties had reached agreement at the            same time on all essential terms regarding stock restrictions            and repurchase rights, that those terms were reflected in the            execution  copies  of the  Repurchase  and Stock  Restriction                                         -14-                                          14            Agreements  prepared  by  the  Company's outside  counsel  in            August  of 1986, and that the parties deemed execution of the            final  versions  of  the  written agreements  to  be  a  mere            formality and  not a condition to the  effectiveness of their            agreements.    The  Stock Restriction  Agreement  provided in            relevant part that:                      [i]n the event the Corporation terminates                      the  employment  of  the Stockholder  for                      cause, the Stockholder shall  within five                      (5)  days after such termination offer in                      writing  all of the  Shares then owned by                      him . . . to the Corporation for purchase                      at [fair market value].            The  magistrate judge concluded  that Hammond had  no duty to            offer his shares  back to the Company  for repurchase because            although the  Company had offered evidence  showing "at most,            that [it] had grounds to terminate Hammond for cause," it had            "not . . . in fact opted to do so."8                        Alemian,  who  made   the  decision  to   terminate            Hammond,  testified that he  decided to fire  Hammond in part            because he had not completed the monthly financial statements                                            ____________________            8.  The magistrate judge correctly  ruled that the Statute of            Frauds, U.C.C.     8-319,  did  not bar  enforcement  of  the            repurchase  provision  of  the  Stock  Restriction  Agreement            against Hammond.   Hammond  stated in  his pleadings that  an            oral  contract was formed in May  of 1986 for the purchase of            100 shares  of  stock and  testified that  he understood  the            contract to  be  subject  to  further  negotiation  regarding            vesting   and  stock   restriction  issues;   the  repurchase            provision  therefore  was  an  integral part  of  a  contract            Hammond admits was made and  that he sought to enforce.   See                                                                      ___            Mass.  Gen. L.  ch. 106,    8-319(d).   The Company  does not            contend that the Statute  of Frauds would prevent enforcement            of any part of the contract against it.                                         -15-                                          15            for September through December of 1987, but primarily because            of  his inability to overcome his negative feelings about the            stock  situation.    Alemian  testified  that  Hammond's  own            motivation  and ability  to motivate  others had  suffered in            April of  1987 when  Litle first  proposed the  reduced stock            package,  but that  he  was able  to function  properly after            Litle  warned him.   In  December of  1987, Alemian  began to            observe  the same frustration  in Hammond.   He explained the            basis of his decision to discharge                                          -16-                                          16            Hammond on January 27, 1988, as follows:                      I felt that he was never going to be able                      to   get   beyond  his   frustration  and                      disagreement with the contractual change,                      and that that ultimately was impacting on                      his  ability to perform in the company at                      the level that  one would  expect from  a                      CFO  and  one  of   three  or  four   top                      management  people  in the  organization.                      Much of  that performance would  not only                      relate  to  specific  duties,   but  also                      projections   to   the   rest    of   the                      organization and setting . . . a positive                      tone in the company.   I just didn't feel                      that he  could get beyond that, and that,                      in fact, the  company's well-being  would                      be jeopardized at that point if I allowed                      the situation to go forward.            Alemian further  testified that  other  than the  performance            problems stemming from the dispute  over the shares of stock,            Hammond's performance had been fully adequate, and that if he            did not believe that Hammond was  of value to the Company, he            would not  have  attempted  to  settle the  matter  on  prior            occasions.9                      Alemian  and  Hammond  both  testified  about  what            Hammond  was told when he was terminated on January 27, 1988.            Alemian  testified  that  after  he  told  Hammond  that  his            employment was terminated  as of that date, Hammond  asked if            it was because  of his performance, and  Alemian replied that                                            ____________________            9.  The Company  also presented the testimony of three of its            employees describing deficiencies in Hammond's management and            accounting methods,  but  these witnesses  were  lower  level            employees who took no  part in the decision to  fire Hammond,            and  most of  what  they described  was  not observed  by  or            communicated to Hammond's superiors.                                           -17-                                          17            "it was not."   Rather,  he "told him  that the  relationship            issues between he [sic]  and the chairman of the  company Tim            Litle  had  reached a  point in  my  mind where  the conflict            between the two was  in the way of the  continued development            of the company."  Alemian testified  that he "did not say  to            him that he was  being terminated for cause," and  that Litle            had  not instructed  him to  tell Hammond  that he  was being            terminated for cause.                        Hammond  testified that after  Alemian said that he            was  terminated, he said, "I  presume this has  nothing to do            with my  performance, it's  because I'm not  agreeing to  the            stock  cut," and  Alemian responded,  "Yeah,  that's correct,            it's not your performance,  it's the fact that you  have this            dispute  with  the  chairman  of the  company  and  it  can't            continue  and you've  got to  go.   We can't  get rid  of the            chairman of the company."                        Based   on   the   foregoing   evidence    of   the            circumstances   surrounding    Hammond's   termination,   the            magistrate judge stated:                      [W]hether or not the Company  had grounds                      to  terminate  Hammond  for   cause,  and                      whether or not  its decision to terminate                      Hammond, although not communicated to him                      at  the  time  of  termination,  was  the                      result  of  its  disappointment with  his                      performance,  the   Company  deliberately                      chose  not to  attempt  to  exercise  its                      right  to  terminate  Hammond for  cause.                      Instead,  no  doubt  with  the   hope  of                      avoiding  an immediate  confrontation, it                                         -18-                                          18                      elected to exercise its alternative right                      to terminate him without cause.                        In addition  to the fact that  Alemian specifically            told  Hammond that he was not being terminated because of his            performance,  the magistrate  judge  relied on  a letter  the            Company sent to  Hammond on  February 19, 1988.   The  letter            confirmed events regarding his  termination but gave "no hint            that Hammond was terminated for cause."  Although Hammond had            not tendered his  vested shares to  the Company, the  Company            did not demand that he do so in the letter or otherwise.  The            letter stated that the Company was exercising its  "right" to            purchase Hammond's  unvested shares and enclosed  a check for            those shares, but said only that it was "prepared" to discuss            repurchasing his vested shares and invited Hammond to contact            the Company "if" he  wished to discuss such repurchase.   The            magistrate   judge  found   that  the   "precatory  language"            regarding  the vested shares in  a letter sent  19 days after            the  effective date  of Hammond's  termination could  "not be            squared with the  Company's present  contention that  Hammond            had a  duty to offer  his shares  to the Company  within five                                                                     ____            days  of his  termination."   Finally,  the magistrate  judge            relied on the fact that  the Company's by-laws permitted  the            Board of  Directors to  remove an  officer  "with or  without            cause," but if  removed for  "cause," the officer  was to  be            given  notice and  opportunity to  be heard  by the  Board of                                         -19-                                          19            Directors, and Hammond was not given notice or an opportunity            to be heard.                        The Company  appeals the magistrate  judge's ruling            that  Hammond  was not  terminated  for  cause, claiming  two            alternative errors  of law.   The  Company argues  that under            Massachusetts law it is the objective existence of cause, and            not the reason the employer communicates to the employee upon            termination, that controls  the determination of whether  the            employee  was  discharged  for  cause.    Alternatively,  the            Company contends that if what the employer tells the employee            does  control, then  the magistrate  judge applied  an overly            narrow  definition of  "cause" by  relying only  on Alemian's            denial  that  he  was   terminating  Hammond  for  inadequate            performance, and ignoring that Alemian also told Hammond that            he was being terminated  because of his "relationship issues"            with  Litle.   Hammond responds  that the  magistrate judge's            determination that the Company chose not to terminate him for            cause  was  a  finding of  fact  with  ample  record support.            Though  the magistrate  judge's conclusion  was a  finding of            fact, the issues  the Company raises question whether,  in so            finding, the magistrate judge considered the wrong factors or            misdefined "cause"  as a  matter  of Massachusetts  law.   We            address these claimed errors of law de novo.  Juno SRL v. S/V                                                __ ____   _______________            Endeavour, 58 F.3d 1, 4 (1st Cir. 1995).            _________                                         -20-                                          20                      The   Company  principally   relies  on   Klein  v.                                                                _________            President  and Fellows  of  Harvard College,  517 N.E.2d  167            ___________________________________________            (Mass. 1987),  for its  contention that  it is  the objective            existence  of  cause, and  not  what the  employer  tells the            employee upon termination, that controls the determination of            whether the employee was discharged for cause.  In Klein, the                                                               _____            trial court found  that the dean had terminated the plaintiff            as  if she were an  at-will employee who  could be discharged            for any reason within  a three-month probationary period, but            that she had an employment agreement for a definite period of            time and therefore could  be terminated only for cause.   Id.                                                                      __            at  169.  According to  the trial court, her termination as a            probationary  employee   therefore  was   a  breach   of  her            employment contract.   The  Supreme Judicial  Court reversed,            ruling that  the plaintiff's dismissal  was for  cause.   The            plaintiff,  who was an  administrative director  at Harvard's            school  of  public  health,  had  strained  and   acrimonious            relationships with faculty members  and had been evaluated by            them  as being unhelpful, difficult  to work with  and a poor            administrator.    Id. at  168.    The  dean terminated  Klein                              __            because   of  her   poor  performance   and  a   particularly            disparaging  memorandum  she had  written  about  one faculty            member.  Id.  Although the dean did not  recite those reasons                     __            in  his  formal  letter  of termination  (stating  only  that            "regretfully, we  have to  terminate your services"),  he did                                         -21-                                          21            discuss  them with  Klein in  a meeting  four days  before he            issued the letter.  The court stated:                      The   important   point   is   that   the                      _______________________                      plaintiff, notwithstanding  the letter of                      dismissal,  knew  why her  employment was                                  _____________________________                      terminated.  .   .  .  Any   notions  the                      __________                      plaintiff might have entertained that she                      was   doing   her  work   diligently  and                      competently  and  that  her  conduct  was                      appropriate were  reasonably dispelled on                      March 24th,  when the  dean met  with her                                        _______________________                      and  discussed  her  job performance  and                      _________________________________________                      "ill-considered"   memorandum    to   the                      _________________________________________                      executive committee.                      ___________________            Id. at 170 (emphasis added).              __                      Thus, Klein  stands for the proposition  that, when                            _____            an employee  may only  be terminated  for cause, whether  the            employer so informs the  employee plays a decisive role  in a            court's  later  determination  of  whether  the  employee was            discharged for  cause (unless,  of course, the  stated reason            was a pretext).   We  think that the  same principle  applies            where, as here, an employee  may be terminated without cause,            but  other rights  and duties  under the  employment contract            depend  on whether the employee is terminated for cause.  The            interpretation of  Massachusetts  law sought  by the  Company            would allow an  employer to enter into an employment contract            spelling out  rights  and duties  that hinge  on whether  the            employee is terminated for cause, then tell the employee that            he  is not being terminated for cause, then seek the benefits            of a  termination  for cause  by  articulating cause  as  its                                         -22-                                          22            reason in any ensuing  litigation.  As Klein  indicates, that                                                   _____            is not the law.                        The Company  urges that Cort  v. Bristol-Myers Co.,                                              __________________________            431 N.E.2d  908 (Mass.  1982), also supports  the proposition            that its stated reason for terminating Hammond is irrelevant.            In  Cort, the  plaintiffs, who  were at-will  employees, were                ____            fired  after  they  refused  to  answer  part  of  a  company            questionnaire which they regarded as  invading their privacy.            Although the plaintiffs' performance records were  good, they            were  notified  that  they  were being  discharged  for  poor            performance.  Id. at 909.  The plaintiffs then sued, claiming                          __            that they were  terminated in bad faith  because the employer            gave a  pretextual reason for discharging them,  and that the            real reason -- their refusal to complete the questionnaire --            was  contrary to  public policy.   Id. at  911.   The Supreme                                               __            Judicial Court  held  that "an  at-will  employee  discharged            without  cause  does  not  have a  claim  for  damages simply            because  the  employer  gave  him  a  false  reason  for  his            discharge,"  id., and  that firing  the plaintiffs  for their                         __            incomplete answers to the questionnaire violated no principle            of public policy.  Id. at 912.  The court explained, however,                               __            that the fact  that an employer gave a false  reason would be            relevant  if by  giving  it the  employer  was attempting  to            conceal its  real reason for  discharge and  the real  reason            violated public policy.  Id. at  911 n.6.  Thus, according to                                     __                                         -23-                                          23            Cort,  an employer's  stated  reason is  irrelevant where  no            ____            consequences flow from  either the real reason or  the stated            false reason.   But  where, as  here, consequences  flow from            whether the termination was  for cause, the employer's stated            reason is determinative, assuming it is not pretextual.                      The  Company contends  that King  v. Driscoll,  638                                                  _________________            N.E.2d  488 (Mass.  1994), also  supports its  position.   In            King, the  employer's real and stated  reason for terminating            ____            King  was that  he participated  in a  shareholder derivative            suit  against the company.  Id. at 491.  The Supreme Judicial                                        __            Court  reversed the  trial  court's ruling  that this  reason            violated public policy.  Id. at 492-93.  It  upheld the trial                                     __            court's conclusion that the employer had not violated its by-            laws by not providing  King notice and a hearing  as required            in  a  termination for  cause,  because  King was  terminated            without  cause.   Id.  at 495.    The court  rejected  King's                              __            contention that the legitimate business reasons the  employer            proffered at trial showed  that he was terminated for  cause,            finding  that the  employer  likely would  not have  advanced            those  reasons but for King's claim that he was terminated in            violation of public policy.  Id.                                          __                      King   hardly   supports  the   Company   where  it                      ____            articulated Hammond's poor performance  as the reason for his            discharge, not when it let him go, but after he filed suit 10            months later.  True,  Litle discussed performance issues with                                         -24-                                          24            Hammond in September of  1986, April of 1987, and  October of            1987, but those problems  centered primarily around the stock            dispute and there  was ample evidence that  Alemian and Litle            nonetheless  valued  Hammond  as  an employee  and  that  his            performance improved after  he was warned.   When Hammond was            terminated in  January of 1988, Alemian  affirmatively stated            that his performance was  not the reason.  As  the magistrate            judge  stated, "there was no evidence that, when the boom was            actually lowered,  the Company advised Hammond that he was in            fact being terminated for cause."  Assuming the Company could            have terminated Hammond  for cause,  it chose not  to act  on            that  basis,  and   cannot  erase  the  choice   it  made  by            articulating different reasons in the course of litigation.                       That   brings  us  to   the  Company's  alternative            argument  --  that  if  the  employer's  stated  reason  does            control, the magistrate judge defined "cause" too narrowly by            relying  only on  Alemian's denial  that performance  was the            basis  for his  termination, and  ignoring that he  also told            Hammond that  the reason  was his "relationship  issues" with            Litle, which  the Company  contends also  constitutes "cause"            under Massachusetts law.  "Cause" for termination includes:                      (1)  a  reasonable  basis   for  employer                      dissatisfaction with a[n] . . . employee,                      entertained  in  good faith,  for reasons                      such  as lack  of capacity  or diligence,                      failure to conform  to usual standards of                      conduct,    or    other    culpable    or                      inappropriate  behavior,  or (2)  grounds                      for discharge reasonably related,  in the                                         -25-                                          25                      employer's honest judgment, to  the needs                      of  his business.    Discharge for  "just                      cause" is to be contrasted with discharge                      on  unreasonable grounds  or arbitrarily,                      capriciously, or in bad faith.            Goldhor v.  Hampshire College,  521 N.E.2d 1381,  1385 (Mass.            _____________________________            App. Ct. 1988) (citations omitted).                        We think that the  magistrate judge well understood            that this definition embraces reasons other than performance,            and so  instructed the jury.  See note 4, supra.  Rather than                                          ___         _____            misperceiving the  meaning  of cause,  the  magistrate  judge            obviously found that  the only basis  for cause supported  by            the  evidence was  inadequate performance, stemming  from the            stock dispute or otherwise, but that the Company specifically            eschewed  that  as its  reason.  According  to Alemian's  and            Hammond's testimony, Hammond was terminated, at best, because            he had "relationship issues" with Litle, or at worst, because            he refused to accept  the reduced stock package.   The latter            reason could well be viewed as a termination in bad faith for            the  purpose of depriving Hammond  of shares to  which he was            entitled, which,  of course, does not  constitute just cause.            And  according  to  our   reading  of  Massachusetts  law,  a            "relationship  issue"   is  not,  without  more,   cause  for            termination.                        The Company  cites Klein and Goldhor  in support of                                         _____     _______            its contention  that when an  employee holds a  managerial or            supervisory  position, a "relationship issue" or "personality                                         -26-                                          26            conflict" may properly  be considered cause for  termination.            The Company mischaracterizes Klein  as so holding because the                                         _____            employee in  that case  was terminated for  poor performance.            In Goldhor, the  director of a  research center at  Hampshire               _______            College had an  intense difference of opinion  with a tenured            professor about how funds  were to be raised for  the center.            Goldhor, 521  N.E.2d at  1383.  This  led to  a public  power            _______            struggle,  with  each  demanding  that the  other  leave  the            center, and  the president of  the college deciding  that the            director would have to leave since the professor was tenured.            Id.  at 1383-84.   The Massachusetts Appeals  Court held that            __            the trial court improperly directed a verdict for the college            because it did not follow termination procedures contained in            the employee manual.  Id. at  1382.  The court indicated that                                  __            if  the issue  of "just  cause" was  reached on  retrial, the            plaintiff's   conflict  with  the   professor  would   be  an            appropriate consideration, but did not indicate that it would            be  controlling.   Id.  at 1385.    Moreover, in  contrast to                               __            Goldhor, Hammond's  disagreement with Litle was  not over how            _______            any aspect of the  business was run, but concerned  the terms            of  his employment  contract.   As  already noted,  Hammond's            resistance  to what  he  believed  to  be  a  breach  of  his            employment contract could not  be considered "just cause" for            his termination.  That  aside, the conflict in this  case had            not  risen to  the  level, as  in  Goldhor, where  Litle  and                                               _______                                         -27-                                          27            Hammond  could  not  continue to  work  together.   As  Litle            testified, he had no intention of terminating Hammond and did            not call  for his termination, but  simply accepted Alemian's            recommendation  that  he be  terminated.    Finally, we  note            (though the  magistrate judge  did not  mention it)  that the            jury's  finding  that  Hammond  was  entitled  to  48  shares            necessarily included  a finding  that the  Company terminated            Hammond  either without cause or in bad faith for the purpose            of preventing him from getting his shares.                      In  sum, we  think  the magistrate  judge correctly            found  that the  only  reason the  Company  may have  had  to            terminate  Hammond   that  amounted   to  just  cause   under            Massachusetts law  was Hammond's  performance, that  it chose            not to  terminate him for  that reason  and told him  so, and            that he therefore had  no obligation to sell his  shares back            to the Company.                      C.   The Magistrate Judge's Determination That                           _________________________________________                           The Company Had No Obligation To Issue                           ______________________________________                           Hammond   Shares   In    Lieu   Of    Deferred                           ______________________________________________            Compensation            ____________                      In  their joint  pretrial  memorandum, the  parties            stipulated that  Hammond had a contractual  right to convert,            at his option, his  accrued deferred compensation into stock,            and that if he properly exercised his option, he was entitled            to 5 shares.  The issue for Phase II of the trial was whether            Hammond properly  exercised his option by  filing his lawsuit            10  months   after  his  employment  was   terminated.    The                                         -28-                                          28            magistrate  judge ruled  that Hammond  had not  exercised his            option  within a  reasonable time  by  filing his  lawsuit 10            months after  his discharge, that  even then the  prayers for            relief in  Hammond's complaint did not  constitute an attempt            to exercise his option, and that  he had failed to carry  his            burden of proving that  it would have been futile  to attempt            to  exercise  his  option  at  or  nearer  the  time  he  was            terminated.                        Hammond  first  claims  that the  magistrate  judge            erred  as a  matter  of law  in  construing the  contract  as            requiring him to exercise his option during his employment or            within  a reasonable time of his termination.  He claims that            the time frame for the exercise of his option was  as long as            his  compensation remained  deferred.   Because there  was no            explicit agreement between the parties as to when Hammond was            required to  exercise  his conversion  right, the  magistrate            judge was called upon to decide whether  Hammond exercised it            within  a "reasonable  time."   See Bushkin Assocs.,  Inc. v.                                            ___ _________________________            Raytheon  Co., 815  F.2d 142,  146 (1st  Cir. 1987)  ("when a            _____________            contract is silent as to time, the term shall be a reasonable            time based on  all the relevant evidence.").   The magistrate            judge's determination that he  did not was a finding  of fact            subject  to the clearly erroneous standard of Fed. R. Civ. P.            52(a).      See,   e.g.,   Crellin   Technologies,   Inc.  v.                        ___    ____    __________________________________            Equipmentlease Corp.,  18 F.3d  1, 9  (1994) (what amount  of            ____________________                                         -29-                                          29            time  is  reasonable  in  a  particular case  is  a  "classic            example"  of a decision that  the law leaves  to the district            court); Flagship Cruises, Ltd. v. New England Merchants Nat'l                    _____________________________________________________            Bank, 569 F.2d 699, 702 (1st Cir. 1978) ("The  reasonableness            ____            of a period of time except as to extremes would seem  to be a            classic  issue for the trier of  fact."); Cataldo, 482 N.E.2d                                                      _______            at 857  n.20 (question  whether buyback option  was exercised            within  a  reasonable time  "was  peculiarly  appropriate for            decision by  the factfinder").  Hammond argues that in making            that  factual determination,  the magistrate  judge impliedly            interpreted  the  contract to  require  him  to exercise  his            option within a reasonable time of his employment rather than            at any time while the compensation remained deferred.   This,            Hammond argues, was a question of law, Fashion House, Inc. v.                                                   ______________________            K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989), subject to            ____________            de novo review.              __ ____                      Recognizing    that    the    magistrate    judge's            determination that  Hammond did  not act within  a reasonable            period was a finding  of fact that contained a ruling of law,            we find that the  magistrate judge erred neither as  a matter            of law nor  as a matter of fact because  the ruling was well-            supported  by  the  "nature  of the  contract,  the  probable            intention  of  the  parties  as  indicated  by  it,  and  the            attendant circumstances."  Charles River Park, Inc. v. Boston                                       __________________________________            Redevelopment Auth., 557 N.E.2d 20, 32 (Mass. App. Ct. 1990).            ___________________                                         -30-                                          30            Hammond's  right  to convert  his deferred  compensation into            stock, as  memorialized in  various documents (most  of which            Hammond himself  drafted), was described  as the "employee's"            option or choice.  Hammond urges that when he was terminated,            he was  in the  position of  a non-employee  investor holding            convertible debt  keyed to the  period during which  the debt            remained outstanding.   This  is so,  he argues, because  the            Company's position was that he would not receive his deferred            compensation until  the Company  achieved a better  cash flow            situation.    Although  that  may  have  been  the  Company's            position  with   regard   to   paying   cash   for   deferred                                                    ____            compensation, nothing  in the record indicates that Hammond's            option  to  convert  deferred  compensation  into  stock  was            similarly contingent.  Even more to the point, nothing in the            record  indicates that  the  Company intended  that a  former            employee  could turn a  simple deferred employee compensation            arrangement  into a  right to  purchase stock  at a  very low            price  at some time in  the indefinite future  when the stock            became far more valuable.  As the magistrate judge found, the            stock valuation rate  at the time Hammond was  terminated was            such  that the shares he  would have received  were worth far            less than the  deferred compensation of  $16,000 to which  he            was  entitled.10   The testimony  at trial  demonstrated that                                            ____________________            10.  Hammond  could convert  his  deferred compensation  into            stock at a "price  equal to the stock's fair  market value at            the time the deferred compensation was earned," but the price                                         -31-                                          31            other employees regarded as  laughable the notion that anyone            would elect  to accept stock in lieu of cash in March of 1988            when  the Company  began paying  deferred compensation.   The            magistrate judge  correctly keyed  the  reasonable period  of            time to Hammond's employment.                      Hammond  also claims  that  the magistrate  judge's            failure to  find as  a matter of  fact that  the Company  had            repudiated  his  contractual right  to  convert  his deferred            compensation into  stock, thus relieving  him of any  duty to            exercise his  option, was clearly erroneous.   Repudiation by            one party relieves the  other party from further performance,            but  such repudiation  "'must be  a definite  and unequivocal            manifestation  of  intention [not  to  render performance].'"            Thermo  Electron Corp.  v.  Schiavone Constr.  Co., 958  F.2d            __________________________________________________            1158,  1164 (1st  Cir.  1992) (quoting  4  Arthur L.  Corbin,            Corbin on  Contracts     973, at  905-06  (1951));  see  also            ____________________                                ___  ____            Restatement (Second) of Contracts   250 cmt. b (1981).                       The magistrate judge did not err in failing to find            that  the  Company repudiated  the  contract.   When  Alemian            terminated Hammond  on January  27, 1988, he  offered Hammond            deferred compensation at  a minimum rate of  $2,000 per month            to be  paid in  cash as  soon as  the Company  had sufficient                                            ____________________            would be "no less  than the latest price paid  by investors."            The latest price paid  by investors in early 1988  was $3,000            per share,  which apparently  was more than  it actually  was            worth at the time.                                             -32-                                          32            funds, but Hammond did not say at that point  that he elected            to exercise  his option to receive  the deferred compensation            in the  form of  stock.   Alemian followed  up with  a letter            dated  February 19, 1988, in which he stated that the Company            was  "prepared  to   discuss  .  .  .   payment  of  deferred            compensation," and asked Hammond to contact him if  he wished            to discuss it.   Hammond did not respond.   Hammond complains            that  Alemian did not  mention his right  to convert deferred            compensation to stock at his exit interview or in the letter,            but that does not  mean that the Company repudiated  its duty            to  honor that right.   It was Hammond's  option to exercise,            and Hammond made no effort to  do so until 10 months after he            was terminated.                        Because the magistrate judge did not err in finding            that  10   months  from  Hammond's  termination   was  not  a            "reasonable time,"  we need  not decide whether  he correctly            found  in  the  alternative  that the  prayer  for  relief in            Hammond's  complaint did  not constitute  an exercise  of his            option,  or whether  the Company  later  repudiated Hammond's            right  to convert  deferred  compensation into  stock in  the            course of this litigation.                      One matter remains.  Shortly  before oral argument,            Hammond moved  this Court for  leave to file a  motion in the            district court pursuant to Fed. R. Civ. P. 60(a) to correct a            purported  omission  in  the   judgment,  to  wit,  that  the                                         -33-                                          33            magistrate  judge  ordered  only  that the  Company  was  not            required to issue shares in lieu of deferred compensation but            failed  to order  the  Company to  pay  Hammond his  deferred            compensation  in  cash.     The  motion  was  denied  without            prejudice to reconsideration by the panel hearing the merits.            We deny the motion because Hammond did not seek the relief of            being paid  his  deferred  compensation in  cash.    This  is            because whether the Company owed it in cash was not at issue.            As the magistrate judge  found, the Company admitted that  it            owed Hammond  the deferred compensation, and  the Company has            stated that it stands ready to pay Hammond $16,468.30 in cash            as soon as this appeal is decided.                        For all  of the foregoing reasons,  the judgment is            affirmed.  The parties shall bear their own costs of appeal.            ________                                         -34-                                          34
