

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit

                                           

No. 97-1122

                          MARK S. IZEN,

                      Plaintiff - Appellee,

                                v.

             TOSHIBA AMERICA CONSUMER PRODUCTS, INC.,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                                                      

                                           

                              Before

                      Boudin, Circuit Judge,                                                     

                   Hill,* Senior Circuit Judge,                                                        

               and Pollak,** Senior District Judge.                                                            

                                           

     John A. Ridley, with whom  Richard S. Zackin and Crummy, Del                                                                           
Deo, Dolan, Griffinger &amp; Vecchione were on brief for appellant.                                            
     John D. Deacon, Jr. for appellee.                                  

                                           

                        November 21, 1997
                                           

                                                  

*  Of the Eleventh Circuit, sitting by designation.

**    Of  the  Eastern  District  of  Pennsylvania,  sitting   by
designation.

          Per Curiam.  A jury awarded Mark Izen both compensatory                    Per Curiam.                              

and punitive  damages on his  claim of  retaliatory discharge  in

this  diversity case  brought pursuant  to Massachusetts  General

Laws, ch.  151B   4.   Toshiba American Consumer  Products, Inc.,

defendant below, appeals this verdict.   Because we find that the

district  court, in  granting  Izen's 50(a)  motion,  erroneously

found as a matter of law -- and instructed the jury --  that Izen

was  discharged and did  not resign, we reverse  and remand for a

new trial.

                                I.

          Mark Izen worked for Toshiba managing sales accounts in

Boston and reported  to the New  England Regional Manager,  James

Donahue.    Izen claims  that,  during  the  time he  worked  for

Toshiba, Donahue  expressed  antisemitic  bias  which  materially

affected  Izen's  working  conditions.   After  receiving  a poor

evaluation from Donahue  in April of 1992 --  an evaluation which

recommended that  Izen be demoted  -- Izen consulted  an attorney

and  began  pursuing  his  complaint  of  discrimination  through

Toshiba's internal dispute resolution program.  Izen claims that,

shortly  after he brought Donahue's behavior  to the attention of

Toshiba's management,  Donahue called  Izen into  his office  and

yelled at him.   Izen also alleges  that, during May and  June of

1992,  Donahue harassed him through phone calls, conferences, and

memoranda and intentionally  did not invite  Izen to a  quarterly

sales meeting.

                               -2-

          The  Toshiba dispute  resolution program  began  with a

hearing in  front of David  Baesler, Donahue's supervisor.   Both

Donahue and  Izen  presented  their sides  of  the  conflict  and

Baesler  issued a written  decision, in  which he  concluded that

Izen  had not been  discriminated against but  that communication

between Donahue and Izen was poor.  Baesler assured Izen that  he

would intervene  if  future conflicts  arose  and that  he  would

monitor  the  work  relationship  with  Donahue  through  monthly

meetings.   After Baesler's decision issued, Izen  wrote a letter

to  Baesler  and  Toshiba's   senior  management  expressing  his

disagreement  with   Baesler's  decision   but  reaffirming   his

commitment to the company.

          On  June  17,   1992,  Robert  Valentine,  representing

Toshiba's personnel  department, and John  Anderson, representing

Toshiba's legal department, sent a letter  signed by Valentine to

Izen informing him that if  he did not appeal Baesler's decision,

Toshiba would  consider the matter  resolved.  On July  1, Izen's

attorney, John  Deacon, responded  with a  letter complaining  of

Donahue's  continuing  retaliation,   characterizing  Valentine's

letter  as a ratification  of Donahue's retaliatory  actions, and

stating that:

          As a  result of Mr. Donahue's misconduct, and
          the  company's  refusal to  correct  it, Mark
          Izen's  employment  conditions   have  become
          intolerable  and  constitute  a  constructive
          termination.  All  remedies available by  law
          will be pursued.

          On  July 8,  Anderson  responded  to  Deacon's  letter,

stating in part:

                               -3-

          I am sincerely sorry that Mark has decided to
          leave  the company.   I am  also disappointed
          that he has elected not to try to resolve his
          problem within  the Company.   I believe that
          Toshiba's effort  to resolve  the matter  was
          genuine and sincere.

Anderson  concluded  his  letter by  informing  Deacon  that Izen

should  get  in   touch  with  Valentine  to   make  arrangements

concerning  his  final  check.    Deacon  responded  on July  10,

disputing   Anderson's   assertion   that   Izen  had   resigned,

reasserting  his  claim  that  Toshiba  had   endorsed  Donahue's

actions, and further stating that:

          If  the   Company  wishes   to  retract   its
          termination  of  Mark's   employment  and  to
          retract  its  endorsement  of  Mr.  Donahue's
          discriminatory  mistreatment,  please contact
          me in writing by July  15.  Otherwise, I will
          have  Mark follow  your  instruction to  make
          arrangements with Mr. Valentine for his final
          check.

Anderson wrote Deacon back on July 17, stating that Deacon's last

letter made it "crystal  clear that Mr. Izen claims to  be unable

to  do  his  job  under  what  he  perceives  to  be  intolerable

conditions" and affirming  that the separation process  should be

concluded.  Izen was paid through July 22 and left on that date.

          Izen then  brought this action,  claiming that  Toshiba

discriminated against him because of his Jewish religion, origin,

and ancestry, and that, when he reported  that violation, Toshiba

retaliated and  ultimately discharged  him, all  in violation  of

Mass. Gen. Laws Ann. ch. 151B   4.1  Izen's claims went before  a
                                                  

1  Section 4 provides in relevant part that:

          It shall be an unlawful practice:

                               -4-

jury and, at the close  of all the evidence, Izen  moved pursuant

to Fed. R. Civ.  P. 50(a) for the district court to  find that he

was terminated  and did not  resign.  The district  court granted

Izen's motion and, accordingly, instructed  the jury that on  the

retaliatory  discharge claim  the  jury  was  to  determine  only

whether Izen was terminated in retaliation  for his complaints of

discrimination.  The jury was  also instructed on Izen's claim of

discrimination.

          The  jury  found  that Toshiba  had  not  discriminated

against  Izen  but  that  retaliation was  the  cause  of  Izen's

termination;  based on its  finding of retaliatory  discharge the

jury  awarded  Izen $36,680  for  economic loss  and  $150,000 in

punitive  damages.  Post-trial,  the district court  awarded Izen

$120,337  in  attorney's  fees and  denied  Toshiba's  motion for

judgment  as  a  matter  of  law  on  the  claim  of  retaliatory

discharge.  

          In  this appeal, Toshiba claims that the district court

erred in not allowing the  jury to consider whether Izen resigned
                                                  

            1)   For  an employer,  by  himself or  his
          agent, because of  the . . .  religious creed
          . .  . of any individual to refuse to hire or
          employ   or  to  bar  or  to  discharge  from
          employment such individual or to discriminate
          against such individual in compensation or in
          terms, conditions or privileges of employment
          . . . . 
            . . . .
            4)    For   any  person,  employer,   labor
          organization   or   employment    agency   to
          discharge,  expel  or  otherwise discriminate
          against any person because he has opposed any
          practices  forbidden  under  this  chapter  .
          . . .  

                               -5-

or was terminated.  Toshiba also claims that:  1) the trial court

erred  in limiting  Anderson's  testimony as  to his  motives for

writing  the letters  to Deacon;  and  2) the  award of  punitive

damages and attorneys'  fees was improper.  Because  we find, for

the reasons given in part II  of this opinion, that a jury  could

reasonably  have concluded that Izen resigned, and that therefore

the district court  erred in taking that question  from the jury,

we  reverse the judgment  of the district court  and remand for a

new  trial on Izen's claim of retaliatory discharge.  In light of

reversal on this  ground, we find it unnecessary to  reach any of

the other errors urged by Toshiba.

                               II.

          Judgment as a matter of law  may be granted only if the

evidence viewed from the  perspective most favorable to the  non-

movant is  so one-sided  that the movant  is plainly  entitled to

judgment, for  reasonable  minds  could  not  differ  as  to  the

outcome.   Gibson  v. City  of  Cranston, 37  F.3d 731  (1st Cir.                                                  

1994).  We review a grant of judgment as a matter of law de novo.                                                                          

CPC Int'l, Inc. v. Northbrook Excess &amp; Surplus  Ins. Co., 46 F.3d                                                                  

1211, 1214 (1st Cir. 1995). 

          The district court  found that no jury could infer from

the letters  exchanged in June  and July  of 1992  that Izen  had

resigned  and,  therefore,  the district  court  determined  as a

matter of law  that Toshiba terminated Izen.  In  so finding, the

district court stated  that, even if Anderson's letter  of July 8

was motivated by a sincere belief  that Izen had resigned ("I  am

                               -6-

sincerely sorry  that Mark  has decided  to leave  the company"),

Deacon's July  10 letter should  have disabused Anderson  of that

notion  ("If the  company wishes  to retract  its  termination of

Mark's employment . . . ").  

          The  district court's result would be sound if Deacon's

July  10  letter  maintained only  that  Izen  had not  resigned.

However,  that letter appeared  to lay out  conditions for Izen's

continuing  his employment  with Toshiba.    Specifically, Deacon

stated  that Anderson should write  to him by  July 15 if Toshiba

wanted "to  retract its termination  of Mark's employment  and to

retract   its  endorsement   of   Mr.  Donahue's   discriminatory

mistreatment," and  that "[o]therwise,  I will  have Mark  follow

your instruction to make arrangements with Mr.  Valentine for his

final check."   Given Toshiba's basic position --  that there had

been no  "termination" or  "discriminatory mistreatment" of  Izen

and that Toshiba's actions in no way constituted an "endorsement"

of  such  alleged  "mistreatment" --  Toshiba  clearly  could not

satisfy Izen's request.  A  jury could reasonably have found that

Izen's conditions for his return implied that he had already left

the  company,   whether  through  resignation,   termination,  or

constructive discharge.   For this reason,  we conclude that  the

district  court erred in granting judgment  as a matter of law on

the question of whether Izen was terminated and charging the jury

in accordance with that Rule 50(a) determination.  Therefore, the

jury  verdict and  the judgment  in  Izen's favor  based on  that

                               -7-

verdict  cannot be  sustained.   In consequence,  we reverse  and

remand for a new trial on Izen's claim of retaliatory discharge.

          Toshiba  argues that this court should grant its motion

for  judgment as  a matter  of  law and  find that  Izen  was not

constructively  discharged.  The  district court denied Toshiba's

motion because it  ruled that Izen  was terminated, thus  mooting

the question of whether a reasonable person in his position would

feel compelled  to  resign.   Now  that we  have ruled  that  the

district court's Rule 50(a)  determination was erroneous, whether

Izen has put forth sufficient  proof of constructive discharge to

go to  the  jury is  once again  a live  question.   However,  we

decline to reach that question because the district court will be

able to address it on remand.

                               III.

          For the foregoing reasons, the judgment of the district

court  is reversed and this case remanded for further proceedings                    reversed               remanded

consistent with this opinion.

                               -8-
