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,
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Torres* and Saris,** District Judges.
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_____________________
Stephen B. Deutsch, with whom Michael L. Rosen and Foley,
__________________ _________________ ______
Hoag & Eliot were on brief for appellant.
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Stephen Wald, with whom William F. Macauley, Anthony D.
_____________ ____________________ ___________
Rizzotti and Craig and Macauley were on brief for appellee.
________ __________________
____________________
November 1, 1996
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____________________
* 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
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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
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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
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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
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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
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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
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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.
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$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
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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
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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
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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.
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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
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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
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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
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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] . . .
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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"Concurrence Follows"
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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.
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