
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1238                                   JOHN J. WALKER,                                 Plaintiff, Appellee,                                          v.                    WALTHAM HOUSING AUTHORITY and EDWARD McCARTHY,                               Defendants, Appellants.                                 ____________________        No. 94-1239                                   JOHN J. WALKER,                                Plaintiff, Appellant,                                          v.                    WALTHAM HOUSING AUTHORITY and EDWARD McCARTHY,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Marianne B. Bowler, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                 ___________________            Paul  E. Stanzler  with whom  Elizabeth  J.  Maillett and  Burns &            _________________             _______________________      _______        Levinson were on briefs for defendants.        ________            Philip  R. Olenick  with whom  Paul L.  Nevins was  on briefs  for            __________________             _______________        plaintiff.                                 ____________________                                   January 17, 1995                                 ____________________        ______________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN, Circuit Judge.   The  appellant Waltham  Housing                         _____________            Authority   ("WHA")  is  a   public  agency  responsible  for            providing low  income housing in Waltham,  Massachusetts.  In            1987,  appellee  John  J.  Walker  had  served  as  the WHA's            executive director  for over  eleven years and  was currently            serving in  this position  under a two-year  written contract            due  to  expire  on December  31,  1988.   The  WHA  Board of            Commissioners  consisted of five  members, including Chairman            Louis D'Angio and appellant Edward McCarthy.                 In  the  summer of  1987,  the Board  began  a personnel            search  to  replace the  WHA's  retiring assistant  executive            director.   At a board meeting on August 12, Walker expressed            his dissatisfaction  with the three finalists  whom the Board            was considering.  The Board  nevertheless selected one of the            remaining candidates, Walter  McGuire, to fill the  position.                 Believing that his  contract gave him  the final say  on            hiring,  and  angered  by  the Board's  action  in  selecting            McGuire over his objection, Walker presented Chairmen D'Angio            with a hastily scribbled letter of  resignation and then left            the meeting.  The letter read:                 Mr.   Louis   D'Angio   Chairman  Waltham   Housing                 Authority,  I  hereby  resign  effective  6:50 p.m.                 Aug. 12, 1987 and will file for retirement Aug. 13,                 1987.                                     /s/ John J. Walker                                         -2-                                         -2-            D'Angio passed the letter around to  the other Board members,            and the Board voted unanimously to table Walker's resignation            for further consideration.                 Following the  meeting D'Angio,  at the urging  of Board            members,  went  to  Walker's  office   to  talk  him  out  of            resigning.    D'Angio  returned  the  resignation  letter  to            Walker, placing it on his desk and telling him that the Board            wanted him  to take  it back.   Walker  said nothing but  (he            later  testified)  put  the   letter  in  his  shirt  pocket,            believing that his resignation  had been rejected.   The next            day  Walker  came into  the office  and  did not  file papers            applying for retirement.                    The Board  scheduled a special meeting for  August 17 to            address the  matter of Walker's resignation,  which was still            tabled.   Three days before  the meeting Walker  told D'Angio            that  he wanted three matters  "handled" or "cleared  up":  a            modification  of  the  assistant  executive   director's  job            description;  a $2,000  salary adjustment for  Dorothy Boyle,            who was  an assistant WHA administrator  and Walker's sister-            in-law; and  Board agreement to Walker's  "strong input" into            selections  for assistant  executive director  and two  other            positions.   D'Angio asked Walker not to attend the August 17            Board meeting but to let D'Angio present his position.                 D'Angio  did not tell the Board that he had given Walker            his  resignation  letter back.    Instead, at  the  August 17                                         -3-                                         -3-            meeting  D'Angio  declared  that  Walker  would  rescind  his            resignation  only   if  the   Board  agreed  to   meet  three            conditions.  The three conditions, presented as nonnegotiable            demands by  D'Angio, were the same three  matters that Walker            had  told D'Angio at their  August 14 meeting  that he wanted            "cleared up."   The Board had no  objection to the first  two            conditions, but balked at the third request--Walker's "strong            input" into the Board's selection of the top staff positions.                 Two members  of the  Board, McCarthy and  Joseph Pavone,            were concerned that Walker wanted the final say on hiring for            those positions; they  asked if Walker would come  before the            Board to discuss his  position on this matter.   D'Angio said            that  the three  conditions  were a  "take  it or  leave  it"            proposition and that Walker would not appear to discuss them.            On McCarthy's motion, the Board then voted to accept Walker's            resignation.   D'Angio joined in  the unanimous vote but then            resigned as  chairman, and  McCarthy was elected  to complete            D'Angio's term.     Afterwards, D'Angio discussed with Alfred            Bergin, another  Board member,  the possibility of  calling a            special  meeting to "straighten  the whole matter  out."  The            WHA's  bylaws required  the  chairman to  schedule a  special            meeting  of  the  Board  upon  the  request  of  two members.            D'Angio  believed  that  there  were  at  least  three  Board            members--Bergin, Pavone and himself--that could be counted on            to vote for Walker's reinstatement at a special meeting.                                             -4-                                         -4-                 By  letter  dated   September  3,  D'Angio  and   Bergin            requested  that  McCarthy  schedule  a  special  meeting  for            September 21  to discuss Walker's resignation.   The proposed            date was significant because it was just before Bergin's term            on the Board was slated  to expire on October 1.   The letter            recommended  that Walker be invited to address the Board.  On            September 9, Walker himself sent a letter to the Board asking            for   an  opportunity  to   speak  to   them  about   "a  few            misunderstandings" concerning his resignation.                    McCarthy told a subordinate to ask an attorney whether            McCarthy  had authority to  defer the Board  meeting, and the            attorney said that McCarthy had  authority to select the date            himself although  the meeting should be held  at the earliest            time convenient  for all members.   After getting  this legal            advice, McCarthy put off  the requested meeting until October            7,  six  days  after   Bergin's  departure  from  the  Board.            Apparently, the  attorney had no  information about  Bergin's            expected departure between the two dates.                 McCarthy  later testified  that  he  had  postponed  the            meeting because of conflicts with his own heavy work schedule            in   September,  but   also   because   he  wanted   Bergin's            replacement, Henry  Walsh, to consider the  issue of Walker's            resignation; Walsh,  said McCarthy, would be  living with the            outcome  of the  controversy  during his  term on  the Board.            McCarthy  spoke  with  Walsh  about  the  issue  of  Walker's                                         -5-                                         -5-            resignation  before  the  special  meeting,  and  Walsh  told            McCarthy that he wanted nothing to do with that "mess."                  Walker  appeared  before the  Board  on  October 7,  and            raised the same three  matters that D'Angio had set  forth at            the  August  17 meeting.    After  hearing from  Walker,  who            requested his job back,  the Board voted on whether  to waive            its earlier  acceptance of  his resignation and  to reinstate            him as executive director.  Two members--D'Angio and Pavone--            voted  for  Walker's  reinstatement,  and  one  member  voted            against it.  Henry Walsh, Bergin's  replacement on the Board,            abstained.     Apparently  breaking   with  Board  tradition,            McCarthy as  chairman then cast  a no vote  to create  a tie,            which defeated the motion.                 Walker  filed  suit  against  the WHA  and  McCarthy  on            December 23,  1987,  claiming  that  he   had  rescinded  his            resignation prior  to the Board's August  17 meeting, thereby            preventing  the WHA from accepting it.  As later amended, the            complaint set forth six counts:                       Count  I, brought  under  42  U.S.C.    1983,                 alleged that the WHA and McCarthy violated Walker's                 due  process rights  by terminating  him without  a                 prior hearing;                       Counts  II  and  III  alleged  that  the  WHA                 breached Walker's employment  contract and its  own                 personnel policies;                       Count  IV  alleged  that McCarthy  tortiously                 interfered with Walker's employment;                                         -6-                                         -6-                       Count  V alleged  that McCarthy  violated the                 Massachusetts Civil Rights Act,  Mass. Gen. L.  ch.                 12; and                       Count VI sought  a declaratory judgment that,                 as  a result  of  the  preceding conduct,  Walker's                 dismissal by the WHA was improper.            Walker   requested   compensatory   and   punitive   damages,            reinstatement, back  pay, attorney's  fees and  various other            forms of equitable relief.                    On count  I, Walker's  section 1983 claim,  the district            court granted summary judgment  for McCarthy and for the  WHA            "with respect to liability for monetary  damages."  The court            found that  McCarthy was  immune from section  1983 liability            because, given  D'Angio's statements  to the Board,  McCarthy            was  entitled  to  vote to  accept  what  he  believed to  be            Walker's still  outstanding resignation  letter.  As  for the            WHA,    the    court    ruled    that    D'Angio's    alleged            misrepresentations to the Board on August 17 did not make the            WHA   liable  for   damages,   since  D'Angio   lacked  final            policymaking authority to act  for the WHA to alter  Walker's            employment status.                  Nevertheless, the district court ruled that Walker might                                                                    _____            still be able to obtain equitable relief under count I in the            form  of  reinstatement  as  the  WHA's  executive  director.            Framing this issue for trial, the district judge wrote:                 [A]t least in the factual context of this  case, if                 Walker   can  convince   the  jury   that  he   had                 unconditionally rescinded his resignation  prior to                 the  August  17  Board  meeting  and  that  D'Angio                                         -7-                                         -7-                 misrepresented  that  fact   to  the  Board,   then                 plaintiff  may  be  entitled  to  reinstatement  as                 Executive Director.                 Thereafter, the district  court granted summary judgment            in favor of  McCarthy and the  WHA, on counts  II (breach  of            contract), III  (breach of  personnel policies) and  V (state            civil  rights claim).  On count  VI (the declaratory judgment            claim)  the court dismissed "[t]hose portions . . . having to            do  with the  counts that  have been  disposed of  on summary            judgment  . . .  ."   The court  denied summary  judgment for            McCarthy  on count  IV  (Walker's tortious  interference with            employment  claim) ruling  that McCarthy enjoyed  no immunity            from  intentional torts  under  Massachusetts  law  and  that            Walker  had raised a triable  issue of fact  as to McCarthy's            motivations in  scheduling the October 7  special meeting and            voting at that meeting to create a tie.                 This left for trial count I, limited to equitable relief            against  WHA,  count  IV  (the  tortious  interference  claim            against McCarthy) and  possible declaratory judgment.   After            conferring  with the  parties, the  district judge  entered a            pretrial  order.  The parties  agreed that the  case would be            tried, with a  jury, before  a magistrate judge.   They  also            agreed that "the  only issues to be tried," as  framed by the            order, were:                 (a)  Whether  Louis  D'Angio misrepresented  to the                      Board   of   the  Waltham   Housing  Authority                      plaintiff's   alleged    revocation   of   his                      resignation and, if so,                                         -8-                                         -8-                 (b)  Whether Edward  McCarthy tortiously interfered                      with plaintiff's employment as the Authority's                      executive director?                 (c)  The amount  of damages.   Plaintiff claims for                      back  pay  at  least  to  December  31,  1988,                      medical  insurance,  life  insurance,  pension                      benefits, and  the use of an  automobile.  The                      parties agreed to stipulate the amounts of the                      separate elements of damages.            The parties also agreed to bifurcate the trial with issue (a)            to be tried first ("phase I"), to be followed by the trial of            issues  (b) and (c) ("phase  II"), if necessary,  to the same            jury immediately after the verdict on issue (a).                 Thereafter, the defendants moved to strike Walker's jury            trial demand on phase I, arguing that count I was now limited            to  an equitable remedy triable to the court.  The magistrate            judge denied the  motion, noting  that phase I  of the  trial            encompassed  a  factual  determination--whether   Walker  had            withdrawn his resignation--that was  common to both  Walker's            equitable claim under count I and his legal claim under count            IV.   The court said this  issue should therefore be tried to            the  jury,  but the  court  would  ultimately decide  whether            equitable relief was warranted.                 Trial on phase I then proceeded.  The trial evidence has            already been summarized above in the light  most favorable to            the verdict.  Hendricks  & Assoc., Inc. v. Daewoo  Corp., 923                          _________________________    _____________            F.2d  209, 214 (1st  Cir. 1991).   On November 19,  1992, the            jury  answered  affirmatively  each of  the  three  questions            submitted to it on issue (a):                                         -9-                                         -9-                 1.    Do  you  find  from a  preponderance  of  the                 evidence that plaintiff John Walker has proven that                 he rescinded  or  revoked his  written  resignation                 prior to the August 17, 1987, board meeting?                 2.    Do  you  find  from  a preponderance  of  the                 evidence that plaintiff John Walker has proven that                 the rescission or revocation of his resignation was                 unconditional?                 3.    Do  you  find  from  a  preponderance of  the                 evidence that plaintiff has proven that Mr. D'Angio                 misrepresented to the board on August 17, 1987, the                 fact that plaintiff  had unconditionally  rescinded                 or revoked his resignation?                 The  next day  trial proceeded  to phase II,  to address            issues  (b) and  (c)  outlined in  the  pretrial order.    On            November  30, the  jury  found that  McCarthy had  tortiously            interfered with  Walker's employment  at the WHA  and awarded            him  $79,018.78   in  damages.     The  jury   also  answered            affirmatively the following five questions in phase II:                 1.    Do  you  find  from  a  preponderance of  the                 evidence   that   plaintiff   had   an   employment                 relationship with the Waltham Housing Authority?                 2.    Do  you  find  from  a preponderance  of  the                 evidence that plaintiff  has proven that  defendant                 McCarthy knew about this relationship?                 3.    Do  you  find  from a  preponderance  of  the                 evidence that  plaintiff has proven  that defendant                 McCarthy's  interference,  in  addition   to  being                 intentional, was malicious?                 4.    Do  you  find  from  a preponderance  of  the                 evidence that plaintiff has proven that his loss of                 employment  relationship   directly  resulted  from                 defendant McCarthy's conduct?                 5.    Do  you  find  from  a  preponderance of  the                 evidence  that defendant McCarthy  was motivated by                 actual malice, amounting  to malevolence, spite  or                 ill will?                                           -10-                                         -10-                 On April 5, 1993, the magistrate  judge entered an order            denying Walker reinstatement under count I on the ground that            the equities  weighed against reinstatement.   The magistrate            judge  initially ordered  back  pay as  equitable relief  and            declared  that  Walker's  termination  was  improper  but  on            reconsideration vacated both awards--the former on the ground            that  it  was foreclosed  by  the  district court's  pretrial            rulings, and the latter  on the ground that the WHA had acted            in  good faith so that the termination could not be described            as improper.                  Final  judgment was entered on August 26, 1993, in favor            of the  WHA and McCarthy on  all claims except count  IV.  On            count IV judgment was entered for Walker against McCarthy  in            the amount of $79,018.78.   The court denied Walker's request            for  attorney's fees under 42 U.S.C.    1988, finding that he            was  not a prevailing party  under that section.   Both sides            have appealed to this court.                 1.   We first address Walker's challenge to the district            court's  rulings  that on  count I  McCarthy was  entitled to            qualified  immunity under  section 1983  and that  under that            section the  WHA was not  municipally liable for  damages for            either  McCarthy's or  D'Angio's  conduct.   We review  these            summary  judgment determinations de  novo, Maldonado-Denis v.                                             ________  _______________            Castillo-Rodriguez,  23 F.3d  576, 581  (1st Cir.  1994), but            __________________            find no error.                                         -11-                                         -11-                 In  dismissing  the damage  claims  under  count I,  the            district court held  that on the undisputed facts  Walker had            submitted  his resignation  to the  Board and  thereafter had            given the Board no  reason to think that the  resignation had            been  withdrawn.  We agree that when McCarthy voted on August            17 to accept the resignation, he had  no reason to think that            the Board  was  firing  Walker or  infringing  upon  any  due            process right  that  Walker might  have  to a  prior  hearing            before  being involuntarily  dismissed.   Feliciano-Angulo v.                                                      ________________            Rivera-Cruz,   858   F.2d   40,   42-44   (1st   Cir.  1988).            ___________            Accordingly, McCarthy had  qualified immunity for  his August            17  actions.   Harlow  v. Fitzgerald,  457  U.S. 800,  815-19                           ______     __________            (1982).                 Perhaps a municipality might in rare cases be liable for            a constitutional violation,  even though  the individual  who            acted for it was  protected by qualified immunity.   See Owen                                                                 ___ ____            v. City of  Independence, 445  U.S. 622, 647  (1980).   But--               _____________________            ignoring  the other  requisites for municipal  liability, see                                                                      ___            City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)--in this            _________________    __________            case   it  is  difficult  to   see  how  there   could  be  a            constitutional violation at all since a majority of the Board            reasonably  thought  that they  had  a  voluntary resignation            before them.   See  Stone v.  University of  Maryland Medical                           ___  _____     _______________________________            System, 855 F.2d 167, 172-75 (4th Cir. 1988).            ______                                         -12-                                         -12-                 Walker says that McCarthy later acted  in bad faith when                                           _____            in October  he blocked  Walker's reinstatement.   But nothing            McCarthy did after August 17 casts any doubt on his belief in            August  that Walker's  previously  tendered  resignation  was            outstanding at that time.  (Indeed, there is no evidence that            McCarthy  acted   in  bad   faith  in  October.)     Walker's            alternative suggestion on appeal that the WHA might be liable            for  D'Angio's misrepresentations  is  made in  so cursory  a            fashion that we regard it as waived.  Ryan v. Royal Ins. Co.,                                                  ____    ______________            916 F.2d 731, 734 (1st Cir. 1990).                 Walker next claims that the magistrate judge should have            ordered his  reinstatement after the jury  found that D'Angio            had misrepresented the status  of Walker's resignation to the            Board.  The Board responds that section 1983 is a fault based            statute  and, since the Board  was not at  fault in accepting            the apparently  outstanding  resignation, the  court  had  no            power to reinstate  Walker.   We need not  resolve the  legal            question  whether  there could  be  equitable relief  without            fault, since the magistrate  judge was unquestionably  within            her  authority in holding  that the equities  did not warrant            such relief.                 At the time  that court-ordered reinstatement became  an            arguable option in late  1992, Walker's two-year contract had            long  since expired.  Further, Walker  himself caused much of            the confusion, not merely by his impetuous resignation letter                                         -13-                                         -13-            but  by  failing  forthrightly  to withdraw  his  resignation            thereafter,  choosing instead  to sponsor  new demands  as an            apparent condition of continuing  as executive director.  The            magistrate  judge soundly exercised her discretion in finding            that  Walker   had  no   equitable  claim  to   post-contract            reinstatement.                 2.   We come  now to the  difficult part of  the appeal,            which is McCarthy's challenge to  the verdict against him  on            count IV.   McCarthy's  best argument  is  that the  evidence            simply was not sufficient to permit a reasonable jury to find            that McCarthy tortiously interfered with Walker's employment.            The claim was rejected by  the magistrate judge, who stressed            that the  jury is entitled to great  latitude in factfinding.            We agree  with the  principle but  cannot, in  this instance,            agree  that a rational jury could  find that McCarthy engaged            in tortious interference.                 McCarthy's  first argument  is  that the  Board lawfully            accepted  Walker's resignation  on August 17  and thereafter,            when McCarthy took his  challenged actions before and  at the            special meeting on October  7, no employment contract existed            with  which he could interfere.   We have  a different reason            for thinking that McCarthy could not be liable for tortiously            interfering with  an existing contract.   Whatever the status                                 ________            of  Walker's resignation,  McCarthy reasonably  believed that                                                ____________________                                         -14-                                         -14-            the  resignation was outstanding on August 17 and that it had            been accepted, thus terminating the contract.                 Under Massachusetts law, one cannot tortiously interfere            with  a contract  that  one  reasonably  believes is  not  in            existence.  See Yiakas v. Savoy, 526 N.E.2d 1305, 1309 (Mass.                        ___ ______    _____            App. Ct.), review denied, 529 N.E.2d 1346 (Mass. 1988) (actor                       ______ ______            must  have knowledge  of contract  and must  know that  he is            interfering with its performance).   Accordingly, it does not            matter whether the Board's  acceptance of the resignation was            based on a misunderstanding or even whether (in some Platonic            sense)  the employment contract endured thereafter.  McCarthy            cannot  be  liable  for tortious  interference  with contract            rights that he had every reason to believe Walker had himself            abandoned.                 The question whether the resignation was rejected by the            return  of the letter might  be of some  importance if Walker            were  appealing on his  original contract  claim, but  he has            chosen not  to do so.  Even  then it would be  hard to resist            the conclusion that  if the resignation  was rejected by  the            return  of the letter, it was effectively renewed by allowing            D'Angio  to  assert  nonnegotiable  conditions  for  Walker's            return.  It  is even easier to conclude that  McCarthy had no            reason to  believe that  the resignation had  been withdrawn,            and that is sufficient to protect his vote to accept it.                                         -15-                                         -15-                 Walker, however, has a second string to his bow.  In his            complaint,  count  IV  focused  on  McCarthy's   actions  "in            preventing  the  Board  .  . .  from  rescinding"  the  prior            asserted termination  of Walker.    Under Massachusetts  law,            this   kind  of  interference   with  prospective  employment            relations  is, like  interference  with existing  employment,            tortious if  done out  of actual  malice or through  improper            means.1   The magistrate judge so instructed the jury.  There            is  no  showing  that   McCarthy's  means  were  unlawful  or            intrinsically unethical,  so the  question to be  answered is            whether a reasonable jury could find that McCarthy acted with            actual malice.                 The case  for malice is extraordinarily  thin.  McCarthy            testified that  he postponed  the special meeting  because it            was a  busy period  in  his own  regular job  and because  he            thought that it was right for Walsh as a new  Board member to            consider a matter that would affect his own period in office.            Neither explanation was  directly impeached; and  whether the            latter  reason is deemed good or bad,  it is certainly a view            that could be entertained  without malice.  There is  also no                                            ____________________                 1When  an employer  or supervisor  is acting  within the            scope  of  his employment  responsibilities,  the hiring  and            firing  decisions  are   privileged  unless  he  acted   with            malevolence.  Gram v. Liberty Mutual Ins. Co., 429 N.E.2d 21,                          ____    _______________________            24 (Mass. 1981).   When a  third-party contract is  involved,            liability is  tested differently.  Compare  King v. Driscoll,                                               _______  ____    ________            638  N.E.2d  488,  494-95  (Mass.  1994)  with  Draghetti  v.                                                      ____  _________            Chmielewski, 626 N.E.2d 862, 870 n.14 (Mass. 1994).            ___________                                         -16-                                         -16-            evidence  that  McCarthy's  discussions  with the  new  Board            member were improper or dishonest.                   Nor  do we  think  weight can  be  placed on  McCarthy's            failure to tell  the lawyer about  the prospective change  in            membership.  McCarthy was  assertedly concerned that he might            be under a legal obligation to call  the meeting on the night            designated  in the request for  the special meeting and asked            someone else to check  with the lawyer.  There is no evidence            that McCarthy thought that the change in Board membership was            pertinent to  this legal  question and deliberately  had this            information withheld from the lawyer.                 Finally, McCarthy's casting of  the tie vote,  allegedly            against tradition for the  WHA chairman, proves nothing about            malice.   There is no  claim that  McCarthy broke any  law or            rule.  Based on Walker's behavior--the impromptu resignation,            the  failure to come to the August 17 meeting, the apparently            non-negotiable  demands--there was ample  reason for McCarthy            to think that it would be in the best interest of  the WHA if            someone else were to assume the role of executive director.                   At trial Walker offered  evidence that he had complained            to  McCarthy  that  the   latter's  brother-in-law,  also  an            employee of  the WHA, had been  performing insufficient work,            and  that McCarthy  disagreed.   Nothing in  the fairly  tame            evidence  about  this  episode  suggested  that  McCarthy had            become angry,  threatened  Walker,  vowed  revenge,  or  done                                         -17-                                         -17-            anything  else   that  would  suggest  that   he  harbored  a            continuing desire to harm Walker.                 What  we  have  is  a  perfectly  plausible  story  from            McCarthy,  uncontradicted in either substance or detail, that            is consistent in every respect with permissible motives.  The            jury might have thought it unfair that Walker, an eleven-year            veteran  of WHA,  forfeit his  job because  of  one impulsive            step; it may have thought that McCarthy  was uncharitable and            opportunistic.   But it  is impossible  to  understand how  a            rational jury could  infer malice by  a preponderance of  the            evidence when there is no evidence of malice at all.                   Of  course,  the  jury   may  simply  have   disbelieved            McCarthy's statement of his reasons; factfinders have a great            deal of latitude in  appraising witnesses, cf. D'Orsay Equip.                                                       ___ ______________            Co.  v. United States Rubber  Co., 302 F.2d  777, 779-80 (1st            ___     _________________________            Cir.  1962), although  one might  think that  there  are some            limits where  the story  is plausible, consistent  and wholly            uncontradicted.    Cf. Frank  Music  Corp. v.  Metro-Goldwyn-                               ___ ___________________     ______________            Mayer, Inc., 772 F.2d 505, 514 n.8 (9th Cir. 1985).  But even            ___________            if McCarthy were  not credited in one particular  or another,            Walker's  burden   goes  beyond  merely   setting  McCarthy's            testimony  aside:    the  burden  was  upon  Walker  to  show            affirmatively that McCarthy acted out of malice.                   Most  of the authorities say that  one side cannot carry            its affirmative burden of proof on  a fact by pointing to the                                         -18-                                         -18-            possibility that the jury disbelieved the other side's denial            of the  fact.  United States v. Zeigler, 994 F.2d 845, 848-50                           _____________    _______            (D.C. Cir.  1993); Jannigan v.  Taylor, 344 F.2d  781, 784-85                               ________     ______            (1st  Cir.), cert.  denied,  382  U.S.  879 (1965);  Dyer  v.                         _____________                           ____            MacDougall, 201 F.2d  265, 268-69 (2d Cir.  1952) (Hand, J.).            __________            But  others have disagreed, see United  States v. Zafiro, 945                                        ___ ______________    ______            F.2d 881, 888 (7th Cir. 1991), aff'd on other grounds, 113 S.                                           ______________________            Ct. 933 (1993), and  the strength of such an  inference could            vary  greatly depending on  context, including other evidence            and  the logical force of  the inference.   Here, there is no            "other evidence" of malice and malice is not the only logical            alternative to  believing in  full McCarthy's account  of his            own motives in postponing the meeting.                 The Supreme Judicial Court of Massachusetts has stressed            that in tortious interference cases  involving employment and            discharge, malice means "actual malice" and "[a]ny reasonable            inference  of malice  must .  . .  be based  on probabilities            rather  than possibilities."  Gram, 429 N.E.2d at 24-25.  The                                          ____            court continued:  "An inference of the probability of malice,            action  motivated by spite, does not reasonably follow from a            showing,  in these  circumstances, only  of negligence  or of            sloppy and unfair  business practices."  Id. at 25.   This is                                                     ___            virtually an epitaph on Walker's claim.                 The  remaining claims  and arguments  by both  sides are            mooted  by  our decision.    The  appellants' numerous  other                                         -19-                                         -19-            attacks on Walker's monetary judgment need not be considered.            Likewise,  Walker's  claim  that  attorney's  fees and  costs            should have been granted him under Rule 54(d) and 42 U.S.C.              1988 fails  since he  has  obtained no  relief at  all.   The            judgment in favor  of WHA  and McCarthy on  all claims  other            than  count IV is affirmed;  the judgment in  favor of Walker                              ________            and against McCarthy on  count IV is  reversed.  No costs  in                                                  ________            this court are awarded to either side.                 It is so ordered.                 ________________                                         -20-                                         -20-
