Izen v. Toshiba

• Court: Court of Appeals for the First Circuit
• Decided: December 1, 1997
• Docket: 97-1122
• Status: Published

Opinion

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[NOT FOR PUBLICATION]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.


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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


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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


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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.


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