
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                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 & 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 & 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-
