
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1886                                  FRANK X. LOSACCO,                                Plaintiff, Appellant,                                          v.                          F.D. RICH CONSTRUCTION CO., INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                _____________________               Paul  F.  Kelly, with  whom  Shelley  B. Kroll,  and  Segal,               _______________              _________________        ______          Roitman & Coleman, were on brief for appellant.          _________________               Lewis G. Schwartz,  with whom  Gary S. Klein,  and Schatz  &               _________________              _____________       _________          Schatz, Ribicoff & Kotkin, were on brief for appellee.          _________________________                                 ____________________                                     May 10, 1993                                 ____________________                    TORRUELLA, Circuit Judge.   At trial, appellant claimed                               _____________          that  appellee  ended  his   employment  improperly.    The  jury          determined  that  appellant was  terminated  for  just cause  and          therefore   found  no  violation   of  his  employment  contract.          Appellant now claims  that the  district court gave  the jury  an          erroneous  instruction as  to "just  cause" and  wrongly excluded          admissible relevant evidence at trial.   Appellant thus asks this          court to  vacate the judgment  and order  a retrial.   Because we          find no error in the district court's instructions or evidentiary          rulings, we do not grant appellant his requests.                                      THE FACTS                                      THE FACTS                                      _________                    Appellant is a structural engineer with an expertise in          pre-cast concrete  construction.   He worked  as a consultant  on          matters  involving  pre-cast  concrete  at  appellee's  Stamford,          Connecticut headquarters.  Appellee soon determined that it would          be more profitable  to make pre-cast  products instead of  buying          them from  outside vendors.    The company thus set  up a factory          for this purpose in Pittsfield, Massachusetts and hired appellant          to manage it.                    The  details of  the employment  contract are  in sharp          dispute.    Appellant  contends  that  he  agreed  to manage  the          Pittsfield facility for a minimum of three years, in exchange for          salary and benefits including housing in Pittsfield for the three          year  term.  Appellee, on the other hand, contends that appellant          was  an  at-will employee,  as were  all  other employees  of the          company.  In  any event,  appellant began work  in Pittsfield  in                                         -2-          August, 1987.                    In October 1987, the  company's senior managers visited          the plant,  announced its  immediate closure, and  terminated all          employees,  including appellant.   Appellant claims that appellee          closed  the plant to  thwart union activity.   Appellee, however,          contends that it  decided to  close the plant  because the  sharp          downturn  in  the  Northeast  real  estate  market  affected  its          construction projects.   Appellee  also claimed  that appellant's          performance was inadequate.                    Appellant  sued,  claiming that  appellee was  bound by          contract  to employ him for three years.  Appellee responded that          no  contract  was  formed, but  that  even  if  one existed,  the          termination  was  for "just  cause"  and  therefore proper  under          Massachusetts  law.   During  the trial,  appellant attempted  to          cross-examine a  former supervisor about testimony  at a National          Labor Relations Board hearing to the effect that there was plenty          of work  at the plant.   The hearing occurred  shortly before the          plant's  closing.    The  district court  judge  disallowed  this          questioning, finding  it beyond the scope  of direct examination,          and more prejudicial than probative.                    At the close of evidence, the district court instructed          the jury that if a contract existed, termination for "just cause"          would be proper.   The district court judge defined  "just cause"          as 1) poor performance by appellant on the job or 2) a good faith          determination that  the economic  needs of the  business required          appellant's discharge.  During  deliberations, the jury asked the                                         -3-          judge to repeat its definition of "just cause."  The jury finally          found that  a contract for fixed-term  employment existed between          the  parties, but  that  "just cause"  allowed  appellee to  fire          appellant.    This appeal  followed  in which  appellant  seeks a          retrial on only the breach of contract claims.                                      DISCUSSION                                      DISCUSSION                                      __________                    Appellant  urges two  errors in  the  jury instruction.          First,  he contends that the instruction does not reflect the law          in Massachusetts as to the definition of just cause.   Second, he          claims that  the instruction  improperly invaded the  province of          the  jury,  by  settling a  question  of  fact,  in violation  of          Massachusetts law.  As appellant claims that the jury instruction          incorrectly stated  Massachusetts contract  law, we review  it de                                                                         __          novo.   Salve Regina  College v. Russell, 111  S. Ct. 1217 (1991)          ____    _____________________    _______          (mandating  de novo  review  of  a  district  court's  state  law                      _______          determinations).                    The suspect instruction reads as follows:                      An employer  has just cause  to discharge                      an  employee   if,   one,  there   is   a                      reasonable     basis     for     employer                      dissatisfaction  with  an  employee,  for                      reasons  such  as  lack  of  capacity  or                      diligence,  failure  to conform  to usual                      standards of conduct,  or other  culpable                      or  inappropriate behavior.   Or two, the                      discharge is reasonably  related, in  the                      employer's   honest   judgment,  to   the                      economic needs of his business.          The district court derived  this instruction almost verbatim from          a duo of Massachusetts  cases, Goldhor v. Hampshire  College, 521                                         _______    __________________          N.E.2d 1381, 1385 (Mass.  App. Ct. 1988), and Klein  v. President                                                        _____     _________                                         -4-          and Fellows of Harvard  College, 517 N.E.2d 167, 169  (Mass. App.          _______________________________          Ct. 1987).   Although those  cases stated the  entire just  cause          definition, they  focussed on the  first prong, holding  that the          employee either  did or  did not  meet the performance  standard.          Because  the  holdings did  not invoke  the  second prong  of the          definition, appellant argues that  the economic needs standard is          not  a part of Massachusetts law but rather dicta by intermediate          state courts.  As such, it cannot support a jury instruction.                    We  disagree.   When the  highest state  court has  not          issued  a definitive  ruling on  the precise  issue at  hand, the          federal  courts  may  refer  to  analogous decisions,  considered          dicta, scholarly  works, or  other reliable sources  to ascertain          how  the highest court would  rule.  Redgrave  v. Boston Symphony                                               ________     _______________          Orchestra, Inc., 855  F.2d 888,  903 (1st Cir.  1988) (en  banc),          _______________          cert.  denied,   488  U.S.  1043   (1989).    The   decisions  of          _____________          intermediate  state appellate  courts  are  trustworthy data  for          ascertaining state  law.   CPC International, Inc.  v. Northbrook                                     _______________________     __________          Excess & Surplus Insurance Co., 962 F.2d 77, 91 (1st Cir. 1992).          ______________________________                    The   Massachusetts  Supreme  Judicial  Court  has  not          answered the precise  issue at  hand -- whether  an employer  may          terminate a fixed-term employee  due to economic  considerations.          The plaintiffs in Goldhor and Klein were fixed-term employees and                            _______     _____          therefore  similarly  situated  to   appellant.    As  such,  the          considered dicta  in those  cases concerning terminations  due to          economic necessity represents a reliable statement  of the law in          Massachusetts.   The district court did not err in relying on it.                                         -5-          There is no  indication that the  highest court of  Massachusetts          would define just cause any differently.                    To the contrary, we note that Massachusetts courts have          defined just cause, or similar language, in a virtually identical          manner  in  other  contexts.    Goldhor  and  Klein  derived  the                                          _______       _____          definition  of just cause from G  & M Employment Service, Inc. v.                                         _______________________________          Commonwealth, 265 N.E.2d  476 (Mass.  1970).  In  that case,  the          ____________          highest  court  in  Massachusetts  defined  just  cause  for  the          purposes  of a  statute regulating  private employment  agencies.          The court's definition in  that case was the direct  precursor to          the definition  used in Goldhor  and Klein.   Other Massachusetts                                  _______      _____          cases  validating premature  terminations  due to  economic  need          include Amoco Oil  Co. v.  Dickson, 389 N.E.2d  406 (Mass.  1979)                  ______________     _______          (franchise agreement) and Karcz  v. Luther Manufacturing Co., 155                                    _____     ________________________          N.E.2d 441  (Mass. 1959) (collective bargaining  agreement).  See                                                                        ___          also Foreign Motors, Inc. v. Audi  of America, Inc., 755 F. Supp.          ____ ____________________    ______________________          30 (D. Mass. 1991) (franchise agreement).  Appellant has directed          us  to, and  we have found,  no cases involving  just cause which          prohibit economically-motivated terminations.   Given the  weight          of authority,  we believe that  the jury instruction,  taken from          Goldhor and Klein, correctly set forth Massachusetts law.          _______     _____                    Appellant's second attack  on that instruction  claimed          that the instruction improperly invaded the province of the jury.          Consistent  with   the  law  on   economically-based  discharges,          however, the jury  could decide whether  appellee made an  honest          business judgment to  close the plant.  Appellant  cannot contend                                         -6-          that the  parties contemplated  just  cause to  have a  different          meaning in this context because  there was no evidence indicating          the  existence  of such  an alternate  meaning.   The  court thus          properly  relied on  the  implied Massachusetts  definition.   We          decline appellant's invitation to remand the case  for retrial or          to certify the state law question due to the jury instruction.                    We  turn now  to appellant's  arguments  concerning the          exclusion of certain evidence.  Appellant sought to cross-examine          a witness  to show  that there  was plenty of  work at  the plant          shortly before its closing.   Appellant hoped that an  officer of          appellee  would relate  testimony from  an NLRB  hearing to  this          effect.   To elicit this  testimony, appellant asked  "[i]t was a          matter of some concern  to you that the  employees were going  to          organize,  wasn't  it?"     Appellee  promptly  objected  to  the          relevance of the question, and the judge held a bench conference.          Appellant there indicated that he wished  to elicit the testimony          concerning the amount of work at the plant.  The  district  court          excluded the testimony because the  supervisor did not testify on          direct  as  to the  motivation behind  the  plant closing  or the          economic woes troubling the company.                      We review a district  court's evidentiary rulings  only          for abuse of discretion, e.g., Willhauck v. Halpin, 953 F.2d 689,                                   ____  _________    ______          717 (1st Cir.  1991), and the district court  did not commit such          abuse in this instance.   The new line  of questioning sought  to          establish  that  the plant  was  not closed  for  honest business          reasons.    The  witness, however,  did  not  testify  as to  the                                         -7-          motivation for  the company's action on direct  examination.  The          district court  therefore properly  refused to entertain  the new          line of questioning pursuant to Fed. R. Evid. 611(b).                      Of  course, trial judges,  within their discretion, may          disregard Rule  611(b).  Fed.  R. Evid.  611(b).  We  cannot say,          however, that  the district court's  decision to follow  the rule          constitutes  an   abuse  of  discretion.     The  district  court          reasonably  believed that  the question  threatened prejudice  in          that it  would ascribe an  unfair anti-union animus  to appellee.          Even  if  appellant sought  to show  that  the plant  closing was          motivated  by  such animus,  this  single  question supported  by          minimal  explanation  or  proffer  cannot  overcome  Rule 611(b).          Appellant  should have  presented a  more coherent  rationale for          pursuing  the  questioning, or  revived  the  questioning when  a          witness testified as to such motivation.                    Because we have found no cause to remand the case for a          new  trial,  we need  not address  whether  that trial  should be          limited  to the breach of contract issues or should encompass all          issues in the case.                    Affirmed.                    ________                                         -8-
