
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1104                                   OLLIE LATTIMORE,                                Plaintiff - Appellee,                                          v.                                POLAROID CORPORATION,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                        Torres* and Saris,** District Judges.                                             _______________                                _____________________               Stephen B. Deutsch,  with whom Michael  L. Rosen and  Foley,               __________________             _________________      ______          Hoag & Eliot were on brief for appellant.          ____________               Stephen  Wald, with  whom  William F.  Macauley, Anthony  D.               _____________              ____________________  ___________          Rizzotti and Craig and Macauley were on brief for appellee.          ________     __________________                                 ____________________                                   November 1, 1996                                 ____________________                                        ____________________          *  Of the District of Rhode Island, sitting by designation.          **  Of the District of Massachusetts, sitting by designation.                    TORRES,   District   Judge.      Polaroid   Corporation                    TORRES,   District   Judge                              ________________          ("Polaroid") appeals  from a judgment  entered in favor  of Ollie          Lattimore with respect to several claims of racial harassment and          employment  discrimination  brought  pursuant  to  42   U.S.C.             2000(e)-1 et seq. ("Title VII")  and Mass. Gen. L. ch. 151B,    4                    __ ___          ("Chapter  151B").   Polaroid  contends that  the District  Court          erred  in denying  Polaroid's motions  for summary  judgment, for          judgment  as a matter  of law  and for a  new trial.   Because we          conclude that  the motion for judgment as  a matter of law should          have  been granted with respect to some of Lattimore's claims and          because it appears  that the  jury's verdict may  have rested  on          those claims, we vacate the judgment and remand for a new trial.                                  Factual Background                                  Factual Background                                  __________________                    Ollie Lattimore, a black man, was hired  by Polaroid in          1977 as a machine operator.  During part of Lattimore's tenure at          Polaroid,  his supervisor  was Bill  Mitchell, a  white man.   In          1978,    Lattimore  sustained  a  job-related  back  injury  that          resulted  in his  being placed  on a  "medical restriction"  that          limited  his  duties to  tasks  that did  not  require repetitive          bending, twisting  or lifting objects weighing  more than fifteen          pounds.   The restriction was  renewed each year  until 1989 and,          because of it, Lattimore was assigned to light-duty work.                    At trial,  Lattimore testified that, in  March of 1989,          Mitchell assigned  him to certain janitorial  tasks that required          heavier  lifting.   When  Lattimore  protested  that his  medical          restriction prevented  him from performing  those tasks, Mitchell                                         -2-          allegedly replied, "I'm  sick of  you people all  the time  lazy,          trying to skip work.  There is the door.  Don't let it hit you in          the ass."  Lattimore  interpreted the statement as a  racial slur          and stated that  he began  doing the janitorial  work because  he          feared  for his job.  Mitchell denied asking Lattimore to perform          tasks  prohibited  by his  medical  restriction  and also  denied          making the statement attributed to him.                    According  to  Lattimore, on  March  16,  1989, he  re-          injured his back while emptying a barrel into a dumpster.   Later          that day,  he was seen by  Dr. Hillier, a physician  who had been          treating him  for his  pre-existing back  problems.   Dr. Hillier          provided  Lattimore with the first in a series of reports stating          that  Lattimore  was  disabled  from  returning  to  work.    The          following  day, Lattimore  presented the  report to  Mitchell who          allegedly  said,  "I'm  getting sick  and  tired  of  you people.          You're  all  lazy all  the time."    Mitchell denied  making that          statement, too.                    In any event, Polaroid immediately placed  Lattimore on          short-term disability  ("STD") status pursuant  to the  company's          short-term disability policy.  Under  that policy, an employee is          eligible for  STD benefits if  medical reports  submitted by  the          employee's  treating physician  support the  conclusion that  the          employee is totally disabled.   The policy further provides  that          in the event that  Polaroid's Medical Review Board ("the  Board")          disagrees  with  the  assessment  by  the  employee's  physician,          Polaroid may require an independent medical examination  ("IME"),                                         -3-          the  results of which will  be deemed conclusive  with respect to          the employee's ability to work.                    Approximately twelve weeks after Lattimore was accorded          STD status,  Dr. Kantrowitz, Polaroid's medical  director and the          chairman  of the Medical Review Board, spoke to Dr. Hillier about          Lattimore's condition.  Dr.  Hillier indicated that Lattimore was          improving and  should be able to return to work  on July 24 if an          examination  scheduled  for  July  21 showed  the  progress  that          Dr. Hillier anticipated.                    After subsequently receiving a report  from Dr. Hillier          listing Lattimore's condition as "undetermined" and learning that          the examination  scheduled for July  21 had been  postponed until          August 8, the Board decided to require an IME without waiting for          the results of Dr. Hillier's  examination.  Polaroid claims  that          the Board's  decision was based  on ambiguities in  Dr. Hillier's          reports and on  the results  of a July  13 workers'  compensation          examination performed  by Dr. James Dolphin  which indicated that          Lattimore  was  able to  perform  light  work.   Apparently,  Dr.          Dolphin's  findings had  caused Lattimore  to be  denied workers'          compensation benefits.                    The Board gave Lattimore  the opportunity to select one          of three "independent" physicians to conduct the IME and he chose          Dr. Marcos Ramos.  The IME was performed on August 23.  According          to  Lattimore, the examination was very brief and did not include          any  diagnostic tests.  Dr.  Ramos, on the  other hand, indicated          that the  examination was  thorough and lasted  approximately one                                         -4-          and one-half hours.                    The   following   day,  Richard   Williams,  Polaroid's          corporate  benefits administrator,  informed  Lattimore that  Dr.          Ramos  had determined  that Lattimore  was not  totally disabled;          that he could return  to light-duty work immediately and  that he          could  resume full  duties in  two weeks.   Accordingly, Williams          instructed  Lattimore to return to  work the next  day.  Although          Williams'  statements  regarding  Dr.  Ramos'   conclusions  were          consistent  with the  findings  contained in  Dr. Ramos'  written          report, the report was not issued until one week later.  Williams          sought  to explain  this  by testifying  that  the findings  were          related  to him during a telephone conversation with Dr. Ramos on          August 23.  However,  Dr. Ramos had no  recollection of any  such          conversation.                    Matters came to a head when Lattimore refused to return          to  work  asserting  that he  still  was  totally  disabled.   On          September 9, Lattimore's  employment  was terminated.    Polaroid          presented evidence  that the  decision was  made by  Eddy Montes,          Lattimore's new  supervisor, based  upon the company's  policy of          terminating  employees who  refused to  work after  being removed          from STD status.                                  Procedural History                                  Procedural History                                  __________________                    On  October   27,  1989,  Lattimore  filed   a  written          administrative charge  with the Massachusetts  Commission Against          Discrimination ("MCAD") and with the Equal Employment Opportunity          Commission  ("EEOC").   The  charge  recited  that Lattimore  had                                         -5-          sustained a  back injury  on March 16,  1989, and  had filed  for          worker's  compensation benefits on June 26, 1989.   It went on to          state that he was later fired for refusing to return to work even          though his back injury  rendered him totally disabled.   Based on          that account of the pertinent events, Lattimore alleged that:                      Respondent does not  treat white  workers                      who  are handicapped  and have  filed for                      _________________________________________                      workers  compensation  the way  they have                      _____________________                      treated  me.     Ray  (Lnu),   a  machine                      operator  in my department,  has been out                      on  workers comp  numerous times  and has                      not  been harassed  and fired  as I  have                      been.  I believe  I was fired and treated                      differently due to my race, black, and my                      handicap,  back injury,  . .  . (emphasis                      added).                    After investigating  and finding no  probable cause  to          believe  that Polaroid  had discriminated against  Lattimore, the          MCAD  dismissed the  charge.    The  EEOC  did  not  conduct  any          independent investigation but accepted  MCAD's finding and issued          Lattimore a right-to-sue letter on March 24, 1992.                    On June  22, 1992, Lattimore, acting  pro se, commenced                                                          ___ __          this  action in  the  District Court.    His complaint  was  more          detailed than  the administrative charge  but covered essentially          the same  ground.  It alluded  to the March 16  back injury which          Lattimore  attributed to  being assigned  to  duties inconsistent          with his medical restriction.   It also stated that,  after being          placed on STD status, Lattimore was wrongfully  removed from that          status when  he applied  for workers' compensation  benefits that          would have  supplemented his  disability payments.   Finally, the          complaint  referred to  Lattimore's  termination for  refusing to                                         -6-          return to work  despite his claim  that he was  unable to do  so.          Like  the administrative  charge,  the  complaint asserted  that,          because  of his race, Lattimore  was denied benefits  to which he          was entitled.  More specifically, it stated:                      I  believe that  the Polaroid  Corp. used                      the fact  that I was an  uneducated black                      to  hinder my every effort to receive the                      compensation  which  was   due  me   both                      through  the Workmen's  Compensation laws                      and  the Company's  Short  Term and  Long                      Term Disability programs.                    Nine months  later, after retaining  counsel, Lattimore          amended his  complaint.   The  amended complaint,  for the  first          time,  alleged that, on  unspecified occasions  after Lattimore's          1979 back  injury, "supervisors  and other employees  at Polaroid          harassed  . . .  [him] . .  . about  his handicap"  and that such          harassment  was  "coupled  with verbal  reference  to Lattimore's          race."                    The amended complaint contained five counts asserting a          variety of claims for both handicap and race discrimination.  The          District Court  granted  Polaroid's motion  for summary  judgment          with respect  to three of the  counts but denied the  motion with          respect to  the other two counts.  The case proceeded to trial on          those  two counts  which  encompassed four  claims:   (1)  racial          harassment by co-employees  in violation of Title VII; (2) racial          harassment by co-employees in violation of Chapter 151B; (3) race          discrimination regarding terms  and conditions  of employment  in          violation  of Title  VII; and  (4) race  discrimination regarding          terms and conditions of employment in violation of Chapter 151B.                                         -7-                    During trial,  evidence was  presented relating  to all          four claims.  That evidence included testimony about the comments          allegedly made by Mitchell on or before March 16 and how Mitchell          allegedly  coerced  Lattimore into  performing  work inconsistent          with his medical restriction thereby causing the March 16 injury.          At the conclusion of Lattimore's case and, again, at the close of          the evidence, Polaroid moved for judgment as a matter of law with          respect to all  four claims.  The grounds for  those motions were          essentially the  same as  the grounds  relied upon  in Polaroid's          previous  motion for  summary  judgment.    Like the  motion  for          summary judgment, the  motions for  judgment as a  matter of  law          were denied.                    The District Judge  charged the jury on all four claims          but  a  questionnaire  submitted  to  the  jury  asked  only  for          determinations  of  whether  Lattimore was  "racially  harassed,"          whether any such harassment proximately caused injury and, if so,          the amount of damages to be awarded.1  See Appendix A.2  The jury                                                 ___          answered the  first two  questions in  the affirmative  and fixed          damages at $400,000.                    After denying  Polaroid's motion  for a new  trial, the          District Court  entered judgment for  Lattimore in the  amount of                                        ____________________          1     Polaroid's   counsel  did   raise  an   objection  to   the          questionnaire, but that objection appeared to be directed only to          the  time frame  during  which the  alleged  harassment may  have          occurred.          2   In his brief,  Lattimore's counsel erroneously  describes the          questionnaire    as    asking   whether    Polaroid   "unlawfully          discriminated."  Appellee's Br. at 3.                                         -8-          $562,000  representing  the  damages   fixed  by  the  jury  plus          interest.  It is from that judgment that Polaroid appeals.                    In its appeal, Polaroid asserts that the District Court          erred in  denying Polaroid's  motion for summary  judgment and/or          judgment as a matter of law  and in denying Polaroid's motion for          a new trial.  Our analysis  is limited to reviewing the denial of          the   motion  for  judgment  as  a  matter  of  law  because  the          conclusions we reach render the remaining claims of error moot.                                      Discussion                                      Discussion                                      __________                    Polaroid argues  that it was entitled to  judgment as a          matter  of law on the harassment claims asserted under both Title          VII and Chapter 151B  because those claims were beyond  the scope          of Lattimore's  administrative charge.    Polaroid also  contends          that judgment in its favor should have been entered regarding the          Title VII harassment claim because Lattimore provided no evidence          that  Polaroid  knew  or   should  have  known  of   the  alleged          harassment.   Finally,  Polaroid  asserts that  the Chapter  151B          harassment claim is barred  because the administrative charge was          not filed  within the period of time  prescribed by Massachusetts          law.                    With  respect  to  the discrimination  claims  Polaroid          argues  that  Lattimore failed  to establish a  prima facie  case                                                          _____ _____          because  he presented no evidence that he was totally disabled, a          sine  qua  non  of eligibility  for  continued  STD  status.   In          ____  ___  ___          addition, Polaroid maintains that  it is entitled to  judgment on          the discrimination claims because there was insufficient evidence                                         -9-          that  its proffered  reason for  denying Lattimore  continued STD          status  and  later  terminating his  employment  was  pretextual.          Finally, Polaroid asserts that the Title VII discrimination claim          fails due to the absence of any evidence of discriminatory intent          on the part of Polaroid.                                I.  Standard of Review                                I.  Standard of Review                                    __________________                    We  review,  de novo,  a District  Court's denial  of a                                 __ ____          motion for judgment as a matter of law.  Sandy River Nursing Care                                                   ________________________          v.  Aetna Casualty, 985 F.2d 1138, 1141 (1st Cir.), cert. denied,              ______________                                  _____ ______          510 U.S. 818,  114 S. Ct. 70 (1993).  Like the District Court, we          are required to consider the evidence in the light most favorable          to the party against whom the  motion is directed and to draw all          reasonable inferences  favorable to  that party.   Aetna Casualty                                                             ______________          Surety Co. v. P&B Autobody, 43 F.3d 1546, 1556 (1st Cir. 1994).          __________    ____________                              II.  The Harassment Claims                              II.  The Harassment Claims                                   _____________________                    Harassment based on membership  in a protected class is          one  form of  employment discrimination.   In  sex discrimination          cases,  we have  recognized  that workplace  harassment may  take          either of  two forms.   It may  consist of promises  of favorable          treatment or  threats  of  unfavorable  treatment  calculated  to          coerce an  employee into submitting to  unwelcome sexual advances          (i.e.,  quid pro  quo harassment).   Lipsett  v. Univ.  of Puerto                  ____ ___  ___                _______     ________________          Rico, 864 F.2d  881, 897 (1st Cir. 1988).   Alternatively, it may          ____          consist  of offensive,  gender-based conduct  that is  "severe or          pervasive enough to create an objectively hostile or abusive work          environment -- an environment that a reasonable person would find                                         -10-          hostile or  abusive" and is subjectively perceived  by the victim          to be abusive.   Harris v. Forklift Systems,  Inc., 510 U.S.  17,                           ______    _______________________          21, 114  S. Ct. 367, 370 (1993).   While the concept  of quid pro                                                                   ____ ___          quo harassment  has no application to  race discrimination cases,          ___          the concept of hostile environment  harassment does.  Daniels  v.                                                                _______          Essex  Group, Inc.,  937 F.2d  1264 (7th  Cir. 1991);  Johnson v.          __________________                                     _______          Teamsters  Local Union No. 559,  1995 WL 355304  (D. Mass. 1995),          ______________________________          appeal docketed, No. 87-215 (1st Cir. Oct. 25, 1995).          ______ ________                    Hostile     environment    harassment     is    readily          distinguishable from "job status" discrimination, another type of          employment discrimination  that occurs when action  is taken that          adversely  affects  an  employee's  job  status,  remuneration or          benefits  and it  is based  upon the  employee's membership  in a          protected  class.  See,  e.g., Tart v. Hill  Behan Lumber Co., 31                             ___   ____  ____    ______________________          F.3d 668, 672  (8th Cir.  1994). Thus, when  both harassment  and          "job status"  discrimination claims  are made, they  are analyzed          separately.      See,   e.g.,   Lipsett,  864   F.2d   881   (sex                           ___    ____    _______          discrimination);  Edwards v. Wallace  Community College,  49 F.3d                            _______    __________________________          1517  (11th Cir.  1993)  (race  discrimination).   A  job  status          discrimination  claim is  not converted  into a  harassment claim          simply because it is labeled as such.                    In this case, Lattimore's harassment claims are hostile          work environment  claims.  Moreover, although  the administrative          charge relating  to the denial of  workers' compensation benefits          and continued STD status  uses the word "harassment,"  that label          does  not alter  the fact  that the  harassment claims  are based                                         -11-          entirely upon the  comments allegedly made  by Mitchell and  upon          the allegation  that Mitchell coerced Lattimore  to perform tasks          inconsistent with  his medical restriction.   Clearly the alleged          harassment must  have  occurred  on or  before  March  16,  1989,          because that is when Lattimore ceased work and, therefore, was no          longer  subject  to  any  hostile  work  environment.    That  is          confirmed  by Lattimore's  brief which  describes  the harassment          claims  as  being  "for  the  March  1989  events  which  led  to          Lattimore's total disability."  Appellee's Br. at 2.                    Polaroid does not seriously question  whether the March          1989 conduct  alleged by  Lattimore was  so severe  and pervasive          that it created a hostile work environment.  Polaroid's principal          argument is that  the harassment claims  are barred because  they          are  beyond  the  scope  of the  administrative  charge  filed by          Lattimore.                    Both Title VII and Chapter 151B  require an employee to          file an administrative  charge as a prerequisite to  commencing a          civil  action for  employment discrimination.   See  42 U.S.C.                                                             ___          2000e-5(f); Mass. Gen. L. ch. 151B,    5-9.  The  purpose of that          requirement  is to provide the employer with prompt notice of the          claim and to create  an opportunity for early conciliation.   See                                                                        ___          Powers  v.  Grinnell  Corp., 915  F.2d  34,  37  (1st Cir.  1990)          ______      _______________          (addressing charge requirements under the ADEA); Ruffino v. State                                                           _______    _____          Street Bank  and Trust  Co., 908  F. Supp.  1019, 1037 (D.  Mass.          ___________________________          1995).                    That purpose  would be frustrated if  the employee were                                         -12-          permitted to allege  one thing in  the administrative charge  and          later allege  something entirely different in  a subsequent civil          action.    Consequently,  we  have  stated  that,  in  employment          discrimination  cases, "[t]he scope of the civil complaint is . .          . limited by the charge filed with the EEOC and the investigation          which can reasonably  be expected  to grow out  of that  charge."          Powers, 915 F.2d at 38 (quoting Less v. Nestle Co.,  705 F. Supp.          ______                          ____    __________          110, 112 (W.D.N.Y. 1988));  see also Johnson v. General Electric,                                      ________ _______    ________________          840 F.2d 132, 139 (1st Cir. 1988).                    In  cases where, as here, the employee acts pro se, the                                                                ___ __          administrative charge  is liberally construed in  order to afford          the complainant the benefit of any reasonable doubt.  Westphal v.                                                                ________          Waukesha Dresser/Waukesha  Engine Div.,  855 F. Supp.  1009, 1015          ______________________________________          (E.D.  Wis. 1994); Pickney  v. Am. Dist.  Tel. Co.,  568 F. Supp.                             _______     ___________________          687, 690 (E.D. Ark.  1983).  As we have said, an  employee is not          required to comprehensively set  forth with "literary exactitude"          all of  the facts and  theories upon  which his or  her claim  is          based.  See Powers, 915 F.2d at 38 (citations omitted).                  ___ ______                    However, pro se status does not relieve an employee  of                             ___ __          the obligation  to meet  procedural  requirements established  by          law.   See United States  v. Michaud, 925  F.2d 37, 41  (1st Cir.                 ___ _____________     _______          1991).  Even  a pro se  complainant is  required to describe  the                          ___ __          essential nature of  the claim and to identify  the core facts on          which it rests. Id.   Moreover, the latitude  extended in pro  se                          ___                                       ___  __          employment  discrimination cases does  not allow  the complainant          "to file general charges  with the [administrative agency] .  . .                                         -13-          and  then expect that this  allegation will permit  all claims of          race-based discrimination  in a subsequent  law suit."   Tart, 31                                                                   ____          F.3d at 673  (quoting Rush  v. McDonald's Corp.,  966 F.2d  1104,                                ____     ________________          1112  (7th Cir. 1992)).   Nor does it  entitle the complainant to          make  a specific  claim based  on one  set of  facts and,  later,          assert  an entirely  different  claim based  on  a different  and          unrelated set of facts.  Pickney, 568 F. Supp. at 690.                                   _______                    In this case, Lattimore's administrative charge plainly          and  specifically  describes   his  claim  to  be   that  he  was          discriminated against because, unlike  white workers who had been          injured and  applied for  workers' compensation benefits,  he was          directed to return to work and  was fired when he refused.  Those          allegations   relate  solely  to  employment  decisions  made  by                                            __________  _________          Polaroid after Lattimore's March  16 injury and cannot reasonably                   _____          be  construed  to  include  any  harassment  by  Mitchell  before                                           __________                ______          Lattimore's injury.                    Indeed,  there are  indications that  Lattimore himself          did not  consider the events occurring before March 16 to be part          of  his  administrative  charge.    The  pro  se  complaint  that                                                   ___  __          Lattimore filed in  the District Court nearly  three years later,          although  more detailed  than  the  administrative  charge,  also          focused  entirely on Lattimore's removal  from STD status and his          subsequent termination which he attributed to his application for          workers' compensation  benefits and the  fact that he  was black.          Like the administrative  charge, it  failed to  mention any  pre-          injury harassment by Mitchell or anyone else.  That claim was not                                         -14-          raised until ten months later when an amended complaint was filed          by Lattimore's counsel.                    For many  of the reasons already  mentioned, we further          find that the  harassment claims were  not reasonably within  the          scope of  an agency investigation  of Lattimore's  administrative          charge.    An  investigation  is  a  systematic  inquiry  into  a          particular matter.  When it  is launched in response to  a charge          of  employment discrimination,  the  direction and  scope of  the          investigation  are guided  by  the allegations  contained in  the          charge.  Although  an investigation is  not strictly confined  to          allegations  in the charge, it is not a "fishing expedition" that          should be expected to extend to matters unrelated to the charge.                    Here,  Lattimore's  charge focused  exclusively  on his          termination  and  the  events leading  up  to  it,  all of  which          occurred  after his  injury.   It contains no  hint of  any claim          that, before his  injury, Lattimore was  harassed by Mitchell  or          anyone else.  It makes no mention of Mitchell or any incidents of          harassment.                    The two claims are based upon different facts that  are          separate  and distinct  both  qualitatively and  temporally.   In          addition, they  relate to  the conduct of  different individuals.          The record indicates that the decision to discontinue Lattimore's          STD  status  was  made by  the  Board  and  that the  termination          decision  was made  by  Montes after  consulting with  Polaroid's          human resources department.   On the other hand, it  was Mitchell          who  engaged  in  the  alleged  harassment.    Therefore,  it  is                                         -15-          difficult  to   see  how  Mitchell's  conduct   before  March  16          reasonably  could  be  expected to  be  within  the  scope of  an          agency's investigation of the charge.  See Tart,  31 F.3d at 672-                                                 ___ ____          73.                    Our  finding in  this  regard is  buttressed by  MCAD's          Notice of  Final Disposition which  indicates that, in  fact, its          investigation  did  not  extend  to  any  alleged  harassment  by          Mitchell.    MCAD's  findings focus  exclusively  on  Lattimore's          termination  and do not include  any reference to  claims of pre-          injury harassment.                    Having  decided that the  harassment claims  are beyond          the scope of Lattimore's  administrative charge, we conclude that          judgment  as  a  matter of  law  should  be entered  in  favor of          Polaroid with respect to the  harassment claims made pursuant  to          both Title VII and  Chapter 151B.  Accordingly, there  is no need          for  us  to  consider Polaroid's  arguments  that  the Title  VII          harassment  claim fails due to  the absence of  any evidence that          Polaroid  knew or  should have  known of  the alleged  harassment          and/or that the Chapter 151B harassment claim is time barred.                      III.  The Job Status Discrimination Claims                      III.  The Job Status Discrimination Claims                            ____________________________________                    The  analytical  framework  applicable   to  employment          discrimination  claims where  there  is no  "direct" evidence  of          discrimination  is well  established.   First, the  employee must          prove a prima facie  case by demonstrating that he or she belongs                  _____ _____          to  a protected class  and was denied a  position or benefits for          which  the employee was qualified.  The burden then shifts to the                                         -16-          employer to  present a  legitimate non-discriminatory  reason for          its  action.    If that  is  done,  the employee  is  afforded an          opportunity  to prove  that the  proffered reason  is pretextual.          See McDonnell Douglas Corp.  v. Green, 411 U.S. 792,  802-805, 93          ___ _______________________     _____          S.  Ct. 1817, 1824-26 (1973); Smith v. Stratus Computer, Inc., 40                                        _____    ______________________          F.3d  11, 15-16 (1st Cir. 1994),  cert. denied, ___ U.S. ___, 115                                            _____ ______          S.  Ct.  1958 (1995);  Blare v.  Hicky Injection  Molding Systems                                 _____     ________________________________          Boston, Inc., 646 N.E.2d 111, 114-17 (Mass. 1995).          ____________                    It is at this point  that Massachusetts law and federal          law   diverge.     Since  Massachusetts   is  a   "pretext  only"          jurisdiction, proof of pretext is sufficient to warrant a finding          of  discrimination under Chapter 151B.  Blare, 646 N.E.2d at 117.                                                  _____          In  contrast, Title  VII requires  that, in  addition  to proving          pretext, the  employee  also must  prove  that the  employer  was          motivated by a discriminatory  purpose.  St. Mary's Honor  Center                                                   ________________________          v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993); Smith,             _____                                                   _____          40 F.3d at 16 (employee has ultimate burden of  proving "(1) that          the  employer's  articulated  reason  for the  job  action  is  a          pretext, and (2) that the true reason is discriminatory");  Woods                   ___                                                _____          v. Friction Materials,  Inc., 30  F.3d 255, 260  (1st Cir.  1994)             _________________________          (employee must prove "both that the employer's articulated reason                                ____          is false, and that  discrimination was the actual reason  for its          employment action.").  When  the prima facie case is  very strong                                           _____ _____          and disbelief of the  proffered reason provides cause to  believe          that  the employer  was  motivated by  a discriminatory  purpose,          proof  of pretext "may" be  sufficient.  Hicks,  509 U.S. at 511,                                                   _____                                         -17-          113 S. Ct.  at 2749; Smith, 40 F.3d at 16;  Woods, 30 F.3d at 261                               _____                  _____          n.3;   see also Connell  v. Bank  of Boston, 924  F.2d 1169  (1st                 ________ _______     _______________          Cir.), cert. denied, 501 U.S. 1218, 111 S. Ct. 2828 (1991).                 _____ ______                    Polaroid argues  that it  is entitled to  judgment with          respect  to both the  Chapter 151B  and Title  VII discrimination          claims because Lattimore's evidence was insufficient to establish          either a prima facie case or that Polaroid's proffered reason was                   _____ _____          pretextual.   Polaroid also argues that the Title VII claim fails          for  the  additional reason  that there  was  no evidence  of any          discriminatory intent on the part of Polaroid.                               A.  The Prima Facie Case                               A.  The Prima Facie Case                                   ____________________                    Ordinarily, when  a claim of  discriminatory firing  is          made, the "qualified"  prong of the  employee's prima facie  case                                                          _____ _____          consists of proof that the employee was adequately performing the          job in question.  However, this case is somewhat atypical because          Lattimore does not claim that he  was fired despite being able to          work.   Instead, Lattimore claims  that he was  denied STD status          even though he was physically unable to work and that the loss of                                        __          STD status resulted in his termination.  Consequently, the  issue          is whether  Lattimore's evidence was  sufficient to make  a prima                                                                      _____          facie showing that he was qualified for STD status.          _____                    Under  Polaroid's  STD  policy,  an  employee  must  be          totally disabled from performing his or her job or any other work          _______          offered by  the company in order  to qualify for STD  status.  As          already   noted,  an  employee   may  establish   eligibility  by          submitting  periodic reports  from a  physician stating  that the                                         -18-          employee is disabled.  If the Medical Review Board disagrees with          the physician's opinion,  it may  require an IME  to resolve  the          dispute.                    Polaroid  argues  that  the  record is  devoid  of  any          evidence that Lattimore was "totally" disabled.  That argument is          based  principally on  testimony by  Dr. Hillier  conceding that,          notwithstanding  his previous  reports to  Polaroid  stating that          Lattimore  was totally  disabled, Lattimore  was able  to perform          limited forms of  light duty work at the time  his STD status was          discontinued.                    However,  contrary  to   Polaroid's  contention,   that          testimony  does not  negate  Dr. Hillier's  previously  expressed          opinion that, in August  of 1989, Lattimore was "disabled."   Nor          does it preclude a finding that Lattimore  was "totally disabled"          within the meaning of Polaroid's STD policy.                    It is  clear that, both  in August  of 1989 and  at the          time of trial, Dr.  Hillier considered Lattimore totally disabled          from  performing  his  usual  job and  felt  it  inadvisable  for          Lattimore to work at all.  The fact that Dr.  Hillier also viewed          Lattimore as capable of performing some light duty tasks does not          undercut that opinion.   Furthermore, Dr. Hillier's assessment is          perfectly  compatible with  Polaroid's own  definition of  "total          disability" because on August 23, when Lattimore  was directed to          return to work, he  was told that, after two weeks of unspecified          light duty, he would  be expected to work without  restriction of          any  kind.  Thus, Lattimore was not offered work that Dr. Hillier                                         -19-          considered him able to perform.                    Moreover, in  addition to  Dr. Hillier's  testimony and          reports,  there was testimony from Lattimore  himself that he was          physically  unable to  do any  work because  of his  back injury.          Thus,  there  was sufficient  evidence  to  establish the  "total          disability"  element  of  Lattimore's  prima  facie  case.    Any                                                 _____  _____          conflict between that evidence  and conflicting medical  evidence          presented by Polaroid, in rebuttal, was  a matter for the jury to          resolve.                                     B.  Pretext                                     B.  Pretext                                         _______                    Lattimore's   effort   to   prove   pretext   consisted          principally of   evidence that,  in discontinuing his  STD status          and later terminating his  employment, Polaroid deviated from its          established  policies and  practices.   Polaroid argues  that any          such  irregularities were  insufficient, as  a matter of  law, to          prove pretext.                    Most of  the "deviations" cited by  Lattimore amount to          little more  than quibbling  over semantics (e.g.,  whether there          was  a  "disagreement"  between  Polaroid and  Dr.  Hillier  that          justified Polaroid's  request for  an IME).   However,  there was          evidence from which a  jury reasonably could have found  that the          decision to  discontinue Lattimore's  STD status was  made before          the Medical Review Board  had obtained the results of  Dr. Ramos'          IME.  As already  noted, Dr. Ramos' report  was not issued  until          approximately one  week after the Board's  decision and Williams'                                  _____          testimony  that  he  learned  of  the  results  via  a  telephone                                         -20-          conversation with Dr. Ramos,  was contradicted by Dr. Ramos.   In          addition,  Vincent Pina,  a  Polaroid  director, testified  that,          under Polaroid's STD policy, it was unimaginable that an employee          who had provided physicians' reports indicating  disability would          be  removed from  STD status  before the  Board reviewed  the IME          results.                    There, also, was evidence  suggesting that the  results          of the  IME may have been preordained.  If a jury determined that          Williams never talked with Dr. Ramos about his findings, it could          infer  that, in  alluding  to those  findings  in his  August  23          letter, Williams must  have known,  in advance of  the IME,  what          those  findings were going to be.  Lattimore's testimony that the          examination  was  a perfunctory  one,  although  disputed by  Dr.          Ramos,  and the  evidence  that Dr.  Ramos  did not  perform  any          diagnostic  examinations or  review  Lattimore's medical  records          could provide additional support for such an inference.                    In  short, although  the evidence  of pretext  is thin,          disputed  and  susceptible  to  varying  interpretations,  it  is          sufficient  to  create  a  jury  question.    Accordingly,  since          Massachusetts  law provides  that  an employee  may prevail  upon          proof  of pretext,  alone,  the District  Court  did not  err  in          denying  Polaroid's motion for judgment  as a matter  of law with          respect to the Chapter 151B claim.                              C.  Discriminatory Intent                              C.  Discriminatory Intent                                  _____________________                    As already noted, Title VII requires proof of something          more  than pretext.   It  also  requires proof  of discriminatory                                         -21-          intent.     Polaroid argues  that there is  no evidence that  its          decisions  to  discontinue  Lattimore's STD  status  and,  later,          terminate his employment,  were motivated  by any  discriminatory          intent.  We agree.                    Lattimore's claim  of  discriminatory intent  is  based          entirely  upon  allegations that  Mitchell  was  involved in  the          decisions  and  upon the  fact  that  Polaroid's human  resources          administrator  was called to the scene when Lattimore returned to          the  plant  on  August 24  and  the  discussion  between him  and          Williams apparently became heated.                    As already noted, Polaroid presented evidence  that the          decisions at  issue were made  by the Board  and by Montes.    In          support  of his  assertion  that Mitchell  participated in  those          decisions, Lattimore  cites evidence  that, until shortly  before          Lattimore's termination, Mitchell retained custody of Lattimore's          time cards and received  copies of all medical  reports regarding          Lattimore's physical condition.   However, that evidence does not          tend  to  prove  anything  other  than  that  Mitchell  may  have          continued  to be  Lattimore's  "supervisor" during  that  period.          That fact,  alone, has little significance  inasmuch as Lattimore          was  out of  work and  not being  supervised.   By itself,  it is          insufficient  to support  a  reasonable  inference that  Mitchell          participated,  in any way,  in the  decision to  remove Lattimore          from STD status or  to fire him.  Nor  does it provide any  basis          for concluding  that any  alleged racial prejudice  on Mitchell's          part infected those decisions.                                         -22-                    Similarly,   the   fact   that  Florence   Ramos-Jones,          Polaroid's   human   resources   administrator,   was   asked  to          participate in  the discussion with  Lattimore on August  24 does          not establish  any reasonable ground for  finding that Polaroid's          decision was motivated by racial animus.   Lattimore argues that,          because   Ms.  Ramos-Jones   dealt  with  "racial   issues,"  her          participation   is  evidence  that  Polaroid  viewed  Lattimore's          termination  as  a  "racial matter."      However,  there was  no          evidence regarding  why Ms.  Ramos-Jones became involved  in that          discussion.    If,  for  example,  she  became  involved  because          Lattimore,  himself,  raised the  question  of  racial bias,  her          participation  would not  provide  any basis  for inferring  that          Polaroid's decision was discriminatory.                    In  the absence  of any  evidence  regarding Mitchell's          involvement in the termination decisions or the circumstances and          nature  of  Ms.  Ramos-Jones'  participation  in  the  August  24          discussion, there  is no  justification for the  inferential leap          urged  by  Lattimore.   Submitting  the  issue of  discriminatory          intent to a jury on this record would amount to nothing more than          an invitation to  speculate.  Therefore, Polaroid  is entitled to          judgment  as  a   matter  of   law  on  the   Title  VII   status          discrimination claim.                                    IV.  New Trial                                    IV.  New Trial                                         _________                    Having  determined   that  Polaroid  was   entitled  to          judgment as a matter of law on three  of Lattimore's four claims,          we  turn our attention  to whether that  determination requires a                                         -23-          new  trial. We answer that question in the affirmative because it          is impossible to ascertain  whether or to what extent  the jury's          verdict was based on the three flawed claims.                    As already  noted, the  only document completed  by the          jury was a  one page  "jury questionnaire" that  called upon  the          jury to  answer three questions.   Those questions  asked whether          Lattimore was harassed; whether  any such harassment  proximately          caused injury  to him and,  if so,  the amount of  damages to  be          awarded.   See  Appendix A.   Because  the document  was entitled                     ___          "questionnaire" rather than "verdict" and because it consisted of          nothing  more than "written  questions susceptible of categorical          or  other brief  answer" (Fed.  R.  Civ. P.  49(a)), we  view the          jury's response as a "special verdict" within the meaning of Rule          49(a).                    In  any  event,  under those  circumstances,  it  makes          little  difference whether  the  response is  characterized as  a          general  or  special  verdict.   It  is  settled  law that,  when          multiple  claims are  submitted  to a  jury  and only  a  general          verdict  is returned,  a new  trial is  required if  some of  the          claims   should  not   have   been  submitted   and  the   jury's          consideration  of those  claims  may have  affected the  verdict.          Sunkist Growers, Inc.  v. Winckler &  Smith Citrus Products  Co.,          _____________________     ______________________________________          370 U.S.  19, 29-30, 82 S. Ct. 1130, 1136 (1962); see also Brochu                                                            ________ ______          v. Ortho Pharmaceutical,  642 F.2d  652, 662 (1st  Cir. 1981).                ____________________          Although we know of no authority directly on  point, we hold that          this  principle is equally applicable to special verdicts.  A new                                         -24-          trial  ordinarily  is required  when  a  special verdict  finding          encompasses multiple  facts and claims  some of which  should not          have  been  submitted  to  the  jury.    In either  case,  it  is          impossible  to  tell  whether  consideration  of  the  improperly          submitted claims may have affected the verdict.                    In this  case, we believe  the jury's verdict  may have          been affected  by its consideration of  the erroneously submitted          claims.    If  the  finding  that  Lattimore  was  "harassed"  is          construed to mean that the jury found for Lattimore solely on the          basis of the harassment claims, the verdict was based entirely on          those  claims.   Alternatively,  if the  finding of  "harassment"          resulted from  consideration of both  the harassment and  the job          status  discrimination claims,3   there  is no  way  to determine          whether or  to  what extent  the harassment  claims affected  the          verdict.  In either case, a new trial is required.                                      Conclusion                                      Conclusion                                      __________                    For all of the foregoing reasons we vacate the judgment          entered by the  District Court,  reverse in part  and remand  the          case  for  a   new  trial   with  respect  to   the  job   status          discrimination claim asserted pursuant to Chapter 151B.                    Reversed in  part, vacated in  part and  remanded.   No                    _________________  ________________ _____________    __          costs.          _____                                        ____________________          3  The evidence presented related to both the harassment  and job          status  discrimination claims and  both types of  claims were the          subject of counsels' arguments and the court's charge.                                         -25-                                                      "Concurrence Follows"                                         -26-                    SELYA,  Circuit Judge  (concurring).   I join  fully in                    SELYA,  Circuit Judge  (concurring).                            _____________          Judge Torres' comprehensive opinion.  It is, however, unfortunate          that neither attorney suggested that the verdict form require the          jury to report the  results of its deliberations count  by count.          Though,  ordinarily, little can  be gained  by crying  over spilt          milk, past  mistakes sometimes teach  valuable lessons.   Thus, I          write separately to emphasize, for the benefit of the trial bench          and bar in days to come, that the need  for retrial may well have          been avoided in this instance by the simple expedient of taking a          separate  verdict on  each statement  of claim.   I  commend that                            __  ____ _________  __ _____          practice to district judges in future multi-count cases.                                         -27-
