
USCA1 Opinion

	




      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 97-2414                          DAVID WOOLER,                      Plaintiff, Appellant,                                v.                          SCOTT HANCOCK,                       Defendant, Appellee.           APPEAL FROM THE UNITED STATES DISTRICT COURT                 FOR THE DISTRICT OF RHODE ISLAND           [Hon. Ernest C. Torres, U.S. District Judge]                              Before                     Torruella, Chief Judge,                 Coffin, Senior Circuit Judge,                   and Stahl, Circuit Judge.                                                                     David Wooler on brief pro se.     Marc DeSisto, Kathleen M. Powers, and DeSisto Law Offices onbrief for appellee.                        Entered: November 4, 1998                                                                                                                                                                                                                                     Per Curiam. Plaintiff David Wooler appeals pro sefrom the grant of summary judgment in favor of defendant Scott    Hancock, the former town manager for the Town of Narragansett,    Rhode Island.  The underlying case is a diversity action in the    District of Rhode Island for alleged tortious interference with    a (prospective) contractual relation.  We conclude that summary    judgment was improperly granted.                On or about May 2, 1994, Wooler was hired by Betty    Cotter to work for Wilson Publishing Company as a reporter for    the Narragansett Times (the "Times").  Wooler's job was to    cover the Town of Narragansett.  Frederick Wilson, III, was the    publisher of Wilson Publishing Company.  Cotter was the editor    for the Times.  Cotter was also Wooler's direct supervisor from    the time he was hired until sometime later that same year when  Cotter went on maternity leave.           Shortly after Cotter went on leave, Hancock (and    possibly one or two other town officials) had a meeting with  Wilson about Wooler.    At the meeting, Hancock complained that    Wooler's coverage of the Town was too "negative."  He also    complained that he and Wooler had a personality conflict, and    he suggested that Wooler be transferred to another beat.     Sometime within the next two months, Hancock had lunch with    Wilson.  At this second meeting, Hancock stated that he would    like more "positive" stories about Narragansett.  On March 3,    1995, Wilson fired Wooler.       Almost one year later, Wooler filed the instant    complaint against Hancock alleging tortious interference with  his employment "contract."    Hancock moved for summary    judgment, and the matter was referred to a magistrate judge.     The magistrate judge issued a report recommending that summary    judgment be granted in favor of Hancock on the ground that    Wooler failed to produce any evidence demonstrating that    Hancock played a causal role in his termination.  Wooler filed    timely objections to the magistrate's report.  Upon review, the    district judge adopted the magistrate's recommendation.  This    appeal followed.       We review the grant of summary judgment de novo.     Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir. 1998).  In    doing so, we view all disputed facts and reasonable inferences    favorable to the nonmoving party.  Perez-Trujillo v. Volvo Car    Corp., 137 F.3d 50, 52 (1st Cir. 1998).   Summary judgment is    appropriate only if "there is no genuine issue as to any    material fact" and "the moving party is entitled to a judgment    as a matter of law."  Fed. R. Civ. P. 56(c).  The moving party    bears the initial burden of demonstrating that there are no    genuine issues of material fact for trial.  Hinchey, 144 F.3d    at 140.  After that, the burden shifts to the nonmoving party    with respect to each issue on which he bears the burden of    proof. Id.       Under Rhode Island law, the elements of a cause of    action for interference with a prospective contractual relation    are:       (1) the existence of a business       relationship or expectancy, (2) knowledge       by the interferor of the relationship or       expectancy, (3) an intentional act of       interference, (4) proof that the       interference caused the harm sustained,       and (5) damages to the plaintiff.    Mesolella v. City of Providence, 508 A.2d 661, 669 (R.I.  1986).    Thus, Wooler bears the burden of proof on the issue of    causation.       The evidence proffered by Hancock to negate an    inference of causation is strong.  This evidence includes the    deposition testimony of Wilson.  Wilson testified that he was    the person who made the termination decision, and that Wooler    was terminated because of his job performance.  According to  Wilson, Wooler was not producing enough articles.    In    particular, Wilson testified that a reporter in Wooler's    position is expected to produce five or six stories an issue  and that Wooler was not meeting this requirement.    Wilson Dep.    at 33.  Wilson further testified, unequivocally, that Hancock    had no impact on the termination decision except, perhaps, to  prolong Wooler's employment.         However, there is also evidence in the record tending    to support Wooler's version of events.  Although, as noted    above, the evidence is conflicting on this point, a fact-finder    could conclude that Hancock's complaints to Wilson were made    during the last two months of Wooler's employment.  Such a    conclusion lends some support to an inference that Hancock's    complaints caused Wooler's termination.  Cf. Oliver v. Digital    Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (observing that    a showing of discharge "soon after" the employee engages in    protected activity is indirect proof of a causal connection).     The possible inference is further strengthened by Cotter's    deposition testimony that Wilson seemed upset about Hancock's  complaints.    There is also evidence, in the form of a notice    of decision concerning Wooler's unemployment benefits, which    could be interpreted as demonstrating a link between Hancock's  complaints and Wooler's termination.          In addition, there is evidence based on which a jury    could question the credibility of Wilson's explanation for the    firing.  Among other things, there is evidence from which a    jury could conclude that Wooler was, in fact, producing the  requisite number of articles.    Moreover, Wooler submitted    copies of many of these articles.  More than one view of these    articles is possible, and a fact-finder might conclude that,    contrary to Wilson's suggestion, Wooler actually covered a    fairly broad range of non-controversial topics.  Finally,    Wooler proffered deposition testimony of Wilson to the effect    that he, Wilson, had heard that Hancock threatened to "freeze"  Wooler "out of town hall."    Although Wilson denied that the    threat concerned him or that it posed a problem for the    newspaper, a fact-finder might be skeptical of this denial.     For much the same reason, a fact-finder might be skeptical of    Wilson's emphatic statement that his decision to terminate    Wooler was not "in any way" affected by Scott Hancock.       We recognize that Wooler faces a formidable obstacle    in proving causation.  The issue turns on Wilson's state of    mind, and the most direct evidence of Wilson's state of mind    are his own statements.  It is not obvious what motive Wilson,    a non-party, would have to dissemble.       Nonetheless, the weighing of alternative factual    scenarios should ordinarily be left to the finder of fact after    trial.  Hodgens v. General Dynamics Corp., 144 F.3d 151, 172    (1st Cir. 1998); see also Greenburg v. Puerto Rico Maritime    Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987) ("The    precincts patrolled by Rule 56 admit of no room for credibility    determinations, no room for the measured weighing of    conflicting evidence . . . , no room for the judge to    superimpose his own ideas of probability and likelihood (no    matter how reasonable those ideas may be) upon the carapace of    the cold record.").  Although Wooler's evidence may be thin, we    do not think that this is a case in which the evidence is "so    one-sided that one party must prevail as a matter of law."  Id.(citation omitted).  Accordingly, we vacate the judgment and  remand for further proceedings consistent with this opinion.         Vacated and remanded.    
