Izen v. Toshiba

[NOT FOR PUBLICATION]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:
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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:
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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 .
. . .
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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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