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,
TORRES,

District
Judge.
District
Judge
________________

Polaroid

Corporation

("Polaroid") appeals

from a judgment

entered in favor

of Ollie

Lattimore with respect to several claims of racial harassment and

employment

discrimination

brought

2000(e)-1 et seq. ("Title VII")

__ ___

("Chapter

erred

151B").

in denying

judgment

of law

to

42

U.S.C.

and Mass. Gen. L. ch. 151B,

contends that

Polaroid's motions

as a matter

conclude that

have

Polaroid

pursuant

the District

for summary

and for a

the motion for judgment as

Court

judgment, for

new trial.

Because we

a matter of law should

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.

Polaroid,

1978,

resulted

limited

his supervisor

was Bill

Lattimore

sustained

in his

being placed

his

duties to

bending, twisting

pounds.

During part of Lattimore's tenure at

tasks

Mitchell, a

job-related

on a

In

injury

that

"medical restriction"

that

that did

not

back

require repetitive

or lifting objects weighing

The restriction was

white man.

more than fifteen

renewed each year

until 1989 and,

because of it, Lattimore was assigned to light-duty work.

At trial,

Mitchell assigned

heavier

lifting.

Lattimore testified that, in

him to certain janitorial

When

restriction prevented

Lattimore

-2-

tasks that required

protested

him from performing

March of 1989,

that his

medical

those tasks, Mitchell

allegedly replied, "I'm

sick of

you people all

the time

trying to skip work.

There is the door.

the ass."

interpreted the statement as a

Lattimore

and stated that

feared

tasks

he began

for his job.

prohibited

lazy,

Don't let it hit you in

doing the janitorial

racial slur

work because

he

Mitchell denied asking Lattimore to perform

by his

medical

restriction

making the statement attributed to him.

and also

denied

According

to

Lattimore, on

March

16,

1989, he

injured his back while emptying a barrel into a dumpster.

that day,

he was seen by

treating him

provided

that

for his

pre-existing back

Later

who had been

problems.

Dr. Hillier

Lattimore with the first in a series of reports stating

Lattimore

was

disabled

following

day, Lattimore

allegedly

said,

You're

Dr. Hillier, a physician

re-

all

"I'm

lazy all

from

returning

presented the

getting sick

the time."

and

to

report to

tired

work.

The

Mitchell who

of

you people.

Mitchell denied

making that

statement, too.

In any event, Polaroid immediately placed

short-term disability

("STD") status pursuant

short-term disability policy.

Under

eligible for

medical reports

STD benefits if

Lattimore on

to the

company's

that policy, an employee is

submitted by

the

employee's

treating physician

support the

employee is totally disabled.

in the event that

disagrees

with

conclusion that

The policy further provides

Polaroid's Medical Review Board ("the

the

assessment

by

the

employee's

Polaroid may require an independent medical examination

the

that

Board")

physician,

("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,

chairman

Dr. Kantrowitz, Polaroid's medical

director and the

of the Medical Review Board, spoke to Dr. Hillier about

Lattimore's condition.

improving and

examination

Dr.

Hillier indicated that Lattimore was

should be able to return to work

scheduled

for

July

21 showed

the

on July 24 if an

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

reports and on

the results

examination performed

Lattimore

was

Dolphin's

findings had

on ambiguities in

of a July

13 workers'

by Dr. James Dolphin

able to

perform

Dr. Hillier's

light

which indicated that

work.

caused Lattimore

compensation

to be

Apparently,

Dr.

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.

to

any

The IME was performed on August 23.

According

Lattimore, the examination was very brief and did not include

diagnostic tests.

that the

Dr.

examination was

Ramos, on the

other hand, indicated

thorough and lasted

-4-

approximately one

and one-half hours.

The

corporate

Ramos

following

benefits administrator,

had determined

that he could return

could

resume full

instructed

Williams'

day,

Richard

Williams,

informed

that Lattimore

Polaroid's

Lattimore that

was not

totally disabled;

to light-duty work immediately and

duties in

two weeks.

Lattimore to return to

statements

regarding

that he

Accordingly, Williams

work the next

Dr.

Dr.

Ramos'

day.

Although

conclusions

were

consistent

with the

findings

contained in

Dr. Ramos'

report, the report was not issued until one week later.

sought

related

to explain

this

by testifying

that

written

Williams

the findings

were

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

September 9, Lattimore's

presented evidence

Lattimore's new

terminating

was

employment

that the

totally

disabled.

was terminated.

decision was

supervisor, based

employees who

from STD status.

still

made by

Polaroid

Eddy Montes,

upon the company's

refused to

work after

On

policy of

being removed

Procedural History
Procedural History
__________________

On

October

administrative charge

27,

1989,

Lattimore

with the Massachusetts

filed

written

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
_____________________
treated

me.

operator
on

Ray

been harassed

been.

(Lnu),

in my department,

workers comp

not

the way

I believe

they have
a

has been out

numerous times
and fired

machine

and has

as I

have

I was fired and treated

differently due to my race, black, and my

handicap,

back injury,

. .

. (emphasis

added).

After investigating

believe

MCAD

that Polaroid

dismissed the

and finding no

probable cause

had discriminated against

charge.

The

EEOC

did

not

to

Lattimore, the

conduct

any

independent investigation but accepted

MCAD's finding and issued

Lattimore a right-to-sue letter on March 24, 1992.

On June

this

action in

detailed than

the same

the

District Court.

It alluded

attributed to

to

would have

complaint

he applied

referred to

duties inconsistent

disability payments.

Lattimore's

after being

removed from that

for workers' compensation

supplemented his

more

back injury which

It also stated that,

placed on STD status, Lattimore was wrongfully

status when

was

but covered essentially

to the March 16

being assigned

with his medical restriction.

pro se, commenced

___ __

His complaint

the administrative charge

ground.

Lattimore

22, 1992, Lattimore, acting

termination for

benefits that

Finally, the

refusing to

-6-

return to work

Like

despite his claim

the administrative

because

charge,

of his race, Lattimore

was entitled.

the

unable to do

complaint asserted

was denied benefits

More specifically, it stated:

believe that

the fact
to

that he was

the Polaroid

that I was an

Corp. used

uneducated black

hinder my every effort to receive the

compensation
through

which

was

the Workmen's

due

me

both

Compensation laws

so.

that,

to which he

and

the Company's

Short

Term and

Long

Term Disability programs.

Nine months

amended his

time,

later, after retaining

complaint.

alleged that, on

1979 back

harassed

The

amended complaint,

unspecified occasions

injury, "supervisors

. . .

harassment

was

[him] . .

"coupled

counsel, Lattimore

for the

after Lattimore's

and other employees

. about

his handicap"

with verbal

first

reference

at Polaroid

and that such

to Lattimore's

race."

The amended complaint contained five counts asserting a

variety of claims for both handicap and race discrimination.

District Court

with respect

respect to

granted

Polaroid's motion

to three of the

for summary

counts but denied the

the other two counts.

The

judgment

motion with

The case proceeded to trial on

those

two counts

which

harassment by co-employees

encompassed four

claims:

(1)

racial

in violation of Title VII; (2) racial

harassment by co-employees in violation of Chapter 151B; (3) race

discrimination regarding terms

violation

of Title

VII; and

and conditions

(4) race

of employment

in

discrimination regarding

terms and conditions of employment in violation of Chapter 151B.

-7-

During trial,

four claims.

evidence was

presented relating

to all

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

essentially the

previous

four claims.

same as

motion for

summary judgment, the

The grounds for

the grounds

summary

relied upon

judgment.

motions for

those motions were

in Polaroid's

Like the

judgment as a

motion

for

matter of

law

were denied.

The District Judge

but

questionnaire

charged the jury on all four claims

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

the affirmative

and fixed

first two

questions in

damages at $400,000.

After denying

District Court

Polaroid's motion

entered judgment for

for a new

trial, the

Lattimore in the

amount of

____________________

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.

In his brief,

Lattimore's counsel erroneously

questionnaire

as

asking

whether

discriminated."

Appellee's Br. at 3.

Polaroid

describes the

"unlawfully

-8-

$562,000

interest.

representing

the

damages

fixed

by

the

jury

plus

It is from that judgment that Polaroid appeals.

In its appeal, Polaroid asserts that the District Court

erred in

denying Polaroid's

judgment as a matter of law

a new trial.

Our analysis

the

for

motion

judgment

motion for summary

judgment and/or

and in denying Polaroid's motion for

is limited to reviewing the denial of

as

matter

of

law

because

the

conclusions we reach render the remaining claims of error moot.

Discussion
Discussion
__________

Polaroid argues

matter

that it was entitled to

judgment as a

of law on the harassment claims asserted under both Title

VII and Chapter 151B

of Lattimore's

because those claims were beyond

administrative charge.

Polaroid also

the scope

contends

that judgment in its favor should have been entered regarding the

Title VII harassment claim because Lattimore provided no evidence

that

Polaroid

harassment.

knew

Finally,

or

should

Polaroid

harassment claim is barred

not filed

law.

have

known

asserts that

of

the

alleged

the Chapter

151B

because the administrative charge was

within the period of time

prescribed by Massachusetts

With

argues

that

because

sine
____

qua
___

respect

to

the discrimination

Lattimore failed

to establish a

claims

Polaroid

prima facie
_____ _____

case

he presented no evidence that he was totally disabled, a

non
___

of eligibility

for

addition, Polaroid maintains that

continued

STD

it is entitled to

status.

In

judgment on

the discrimination claims because there was insufficient evidence

-9-

that

its proffered

status

and

later

reason for

denying Lattimore

terminating his

employment

was

continued STD

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.
I.

We

review,

Standard of Review
Standard of Review
__________________

de novo,
__ ____

a District

motion for judgment as a matter of law.

v.

Court's denial

of a

Sandy River Nursing Care

________________________

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.
II.

The Harassment Claims

The Harassment Claims
_____________________

Harassment based on membership

one

form of

cases,

coerce an

threats

It may

of

quid pro
____ ___

In

that workplace

unfavorable

quo harassment).
___

harassment may

treatment

take

of favorable

calculated

to

unwelcome sexual advances

Lipsett
_______

881, 897 (1st Cir. 1988).

of offensive,

sex discrimination

consist of promises

employee into submitting to

Rico, 864 F.2d

____

consist

recognized

two forms.

treatment or

(i.e.,

employment discrimination.

we have

either of

in a protected class is

gender-based conduct

v. Univ. of Puerto
________________

Alternatively, it may

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

to be abusive.

21, 114

by the victim

Harris v. Forklift Systems, Inc., 510 U.S.

______
_______________________

S. Ct. 367, 370 (1993).

While the concept

17,

of quid pro
____ ___

quo harassment
___

has no application to

the concept of hostile environment

Essex Group, Inc.,

__________________

937 F.2d

race discrimination cases,

harassment does.

1264 (7th

Teamsters Local Union No. 559,

______________________________

Daniels
_______

Cir. 1991);

1995 WL 355304

v.

Johnson v.
_______

(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

adversely

benefits

protected

affects

and it

class.

F.3d 668, 672

an

that occurs when action

employee's

is based

See,
___

(8th Cir.

upon the

job

status,

is taken that

remuneration or

employee's membership

in a

e.g., Tart v. Hill Behan Lumber Co., 31

____ ____
______________________

1994). Thus, when

both harassment

and

"job status"

discrimination claims

separately.

See,
___

e.g.,
____

are made, they

Lipsett,
_______

864

are analyzed

F.2d

881

discrimination);

Edwards v. Wallace Community College,

_______
__________________________

1517

1993)

(11th Cir.

discrimination

claim is

(race

discrimination).

not converted

into a

(sex

49 F.3d

job

status

harassment claim

simply because it is labeled as such.

In this case, Lattimore's harassment claims are hostile

work environment

charge relating

claims.

to the denial of

and continued STD status

does

not alter

Moreover, although

the fact

the administrative

workers' compensation benefits

uses the word "harassment,"

that the

-11-

harassment claims

that label

are based

entirely upon the

the allegation

comments allegedly made

by Mitchell and

that Mitchell coerced Lattimore

inconsistent with

harassment must

his medical restriction.

have

occurred

on or

upon

to perform tasks

Clearly the alleged

before

March

16,

1989,

because that is when Lattimore ceased work and, therefore, was no

longer

subject

confirmed

claims

as

to

any

by Lattimore's

being

"for

hostile

work

brief which

the

March

environment.

describes

1989

events

That

is

the harassment

which

led

to

Lattimore's total disability."

Appellee's Br. at 2.

Polaroid does not seriously question

1989 conduct

alleged by

Lattimore was

so severe

that it created a hostile work environment.

argument is that

the harassment claims

are

scope

beyond

the

of the

whether the March

and pervasive

Polaroid's principal

are barred because

administrative

charge

they

filed by

Lattimore.

Both Title VII and Chapter 151B

file an administrative

civil

action for

charge as a prerequisite to

employment discrimination.

2000e-5(f); Mass. Gen. L. ch. 151B,

requirement

require an employee to

5-9.

See
___

The

commencing a

42 U.S.C.

purpose of that

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

-12-

the employee were

permitted to allege

later allege

action.

one thing in

something entirely different in

Consequently,

discrimination

the administrative charge

we

have

stated

and

a subsequent civil

that,

in

employment

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

Powers, 915 F.2d at 38 (quoting Less v. Nestle Co.,

______
____
__________

110, 112 (W.D.N.Y. 1988));

charge."

705 F. Supp.

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.

Waukesha Dresser/Waukesha Engine Div.,

______________________________________

855 F. Supp.

Westphal v.
________

1009, 1015

(E.D.

Wis. 1994); Pickney

_______

687, 690 (E.D. Ark.

v. Am. Dist. Tel. Co.,

___________________

1983).

As we have said, an

required to comprehensively set

568 F. Supp.

employee is not

forth with "literary exactitude"

all of

the facts and

theories upon

which his or

her claim

based.

See Powers, 915 F.2d at 38 (citations omitted).

___ ______

However, pro se status does not relieve an employee

___ __

the obligation

law.

1991).

to meet

See United States

___ _____________

Even

a pro se
___ __

procedural

requirements established

v. Michaud, 925
_______

complainant is

F.2d 37, 41

the claim and to identify

which it rests. Id.

___

Moreover, the latitude

employment

discrimination cases does

of

by

(1st Cir.

required to describe

essential nature of

is

the

the core facts on

extended in pro
___

not allow

se
__

the complainant

"to file general charges

with the [administrative agency] .

. .

-13-

and

then expect that this

race-based discrimination

F.3d at 673

1112

(quoting Rush
____

(7th Cir. 1992)).

allegation will permit

in a subsequent

law suit."

v. McDonald's Corp.,
________________

Nor does it

all claims of

Tart, 31
____

966 F.2d

1104,

entitle the complainant to

make

a specific

assert

claim based

an entirely

on one

different

unrelated set of facts.

set of

claim based

facts and,

on

later,

a different

and

Pickney, 568 F. Supp. at 690.

_______

In this case, Lattimore's administrative charge plainly

and

specifically

describes

his

claim

discriminated against because, unlike

injured and

applied for

relate

construed

to

that

he

solely

to

include

any

was

white workers who had been

he was

was fired when he refused.

Polaroid after Lattimore's March

_____

be

be

workers' compensation benefits,

directed to return to work and

allegations

to

employment
__________

decisions
_________

Those

made

by

16 injury and cannot reasonably

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

administrative

his

Lattimore filed in

although

focused

charge.

The

pro
___

the District Court nearly

more detailed

than

the

se
__

complaint

three years later,

administrative

entirely on Lattimore's removal

that

charge,

also

from STD status and his

subsequent termination which he attributed to his application for

workers' compensation

Like the administrative

benefits and the

charge, it

fact that he

failed to

injury harassment by Mitchell or anyone else.

-14-

was black.

mention any

pre-

That claim was not

raised until ten months later when an amended complaint was filed

by Lattimore's counsel.

For many

find that the

scope of

charge.

harassment claims were

an agency investigation

An

investigation

particular matter.

of

of the reasons already

When it

is

charge.

are guided

Although

not reasonably within

of Lattimore's

systematic

by

the

inquiry

direction and

the allegations

an investigation is

the

administrative

is launched in response to

employment discrimination,

investigation

mentioned, we further

into

a charge

scope of

the

contained in

the

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,

termination

occurred

and

Lattimore's

the

after his

that, before his

anyone else.

charge focused

events leading

injury.

up

exclusively

to

It contains no

injury, Lattimore was

it,

on his

all of

hint of

which

any claim

harassed by Mitchell

or

It makes no mention of Mitchell or any incidents of

harassment.

The two claims are based upon different facts that

separate

and distinct

addition, they

both

relate to

qualitatively and

the conduct of

temporally.

are

In

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

human resources department.

who

engaged

in

the

alleged

consulting with

On the other hand, it

harassment.

Polaroid's

was Mitchell

Therefore,

it

is

March

16

scope of

an

-15-

difficult

reasonably

to

see

could

how

be

Mitchell's

expected to

conduct

be

agency's investigation of the charge.

within

See Tart,
___ ____

before

the

31 F.3d at 672-

73.

Our

Notice of

finding in

this

regard is

Final Disposition which

investigation

did

not

extend

Mitchell.

MCAD's

termination

and do not include

buttressed by

indicates that, in

to

findings focus

any

alleged

exclusively

MCAD's

fact, its

harassment

on

any reference to

by

Lattimore's

claims of pre-

injury harassment.

Having

decided that the

the scope of Lattimore's

judgment

as

law

Polaroid with respect to the

for

us

to

harassment

are beyond

administrative charge, we conclude that

matter of

both Title VII and

harassment claims

should

in

favor of

harassment claims made pursuant

Chapter 151B.

consider Polaroid's

claim fails due to

be entered

Accordingly, there

arguments

that

the absence of

to

is no need

the Title

VII

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.
III.

The

The Job Status Discrimination Claims

The Job Status Discrimination Claims
____________________________________

analytical

framework

discrimination

claims where

discrimination

is well

prove a prima facie

_____ _____

to

a protected class

which

applicable

there

is no

established.

to

employment

"direct" evidence

First, the

of

employee must

case by demonstrating that he or she belongs

and was denied a

the employee was qualified.

-16-

position or benefits for

The burden then shifts to the

employer to

its

action.

opportunity

present a

If that

to prove

legitimate non-discriminatory

is

that the

See McDonnell Douglas Corp.

___ _______________________

S.

F.3d

S.

done,

the employee

proffered reason

is

reason for

afforded an

is pretextual.

v. Green, 411 U.S. 792,

_____

802-805, 93

Ct. 1817, 1824-26 (1973); Smith v. Stratus Computer, Inc., 40

_____
______________________

11, 15-16 (1st Cir. 1994),

Ct.

1958 (1995);

Blare v.
_____

cert. denied, ___ U.S. ___, 115

_____ ______

Hicky Injection Molding Systems

________________________________

Boston, Inc., 646 N.E.2d 111, 114-17 (Mass. 1995).

____________

It is at this point

law

diverge.

Since

that Massachusetts law and federal

Massachusetts

is

"pretext

only"

jurisdiction, proof of pretext is sufficient to warrant a finding

of

discrimination under Chapter 151B.

In

contrast, Title

pretext, the

VII requires

employee

also must

motivated by a discriminatory

Blare, 646 N.E.2d at 117.

_____

that, in

prove

purpose.

addition

that the

to proving

employer

was

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

the

employer's

articulated

reason

for the

proving "(1) that

job

action

is

pretext, and (2) that the true reason is discriminatory");

___

Woods
_____

v. Friction Materials, Inc., 30

_________________________

1994)

F.3d 255, 260

(1st Cir.

(employee must prove "both that the employer's articulated reason

____

is false, and that

discrimination was the actual reason

employment action.").

and disbelief of the

that

proof

the employer

When

the prima facie case is

_____ _____

very strong

proffered reason provides cause to

was

motivated by

of pretext "may" be

sufficient.

-17-

a discriminatory

Hicks,
_____

for its

believe

purpose,

509 U.S. at 511,

113 S. Ct.

n.3;

at 2749; Smith, 40 F.3d at 16;

_____

see also Connell

________ _______

Woods, 30 F.3d at 261

_____

v. Bank of Boston, 924

_______________

F.2d 1169

(1st

Cir.), cert. denied, 501 U.S. 1218, 111 S. Ct. 2828 (1991).
_____ ______

Polaroid argues

respect

to both the

that it

Chapter 151B

is entitled to

and Title

judgment with

VII discrimination

claims because Lattimore's evidence was insufficient to establish

either a prima facie case or that Polaroid's proffered reason was

_____ _____

pretextual.

for

the

Polaroid also argues that the Title VII claim fails

additional reason

that there

was

no evidence

of any

discriminatory intent on the part of Polaroid.

A.
A.

The Prima Facie Case

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

work.

Instead, Lattimore claims

was fired despite being able to

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.

is whether

Lattimore's evidence was

Consequently, the

sufficient to make

issue

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

submitting

noted,

an

employee

periodic reports

may

from a

establish

eligibility

physician stating

by

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

the

devoid

any

dispute.

Polaroid

argues

that

record is

of

evidence that Lattimore was "totally" disabled.

based

principally on

notwithstanding

Lattimore

testimony by

his previous

was totally

limited forms of

That argument is

Dr. Hillier

reports to

conceding that,

Polaroid

disabled, Lattimore

stating that

was able

light duty work at the time

to perform

his STD status was

discontinued.

However,

testimony

does not

contrary

negate

opinion that, in August

to

Polaroid's

Dr. Hillier's

contention,

previously

expressed

of 1989, Lattimore was "disabled."

does it preclude a finding that Lattimore

that

Nor

was "totally disabled"

within the meaning of Polaroid's STD policy.

It is

clear that, both

time of trial, Dr.

in August

of 1989 and

at the

Hillier considered Lattimore totally disabled

from

performing

his

usual

Lattimore to work at all.

job and

felt

The fact that Dr.

it

inadvisable

for

Hillier also viewed

Lattimore as capable of performing some light duty tasks does not

undercut that opinion.

perfectly

Furthermore, Dr. Hillier's assessment is

compatible with

Polaroid's own

definition of

disability" because on August 23, when Lattimore

return to work, he

light duty, he would

any

kind.

"total

was directed to

was told that, after two weeks of unspecified

be expected to work without

restriction of

Thus, Lattimore was not offered work that Dr. Hillier

-19-

considered him able to perform.

Moreover, in

reports,

Dr. Hillier's

there was testimony from Lattimore

physically

Thus,

addition to

there

disability"

unable to

do any

was sufficient

element

of

work because

evidence

Lattimore's

conflict between that evidence

prima
_____

himself that he was

of his

back injury.

establish the

facie
_____

resolve.

Pretext
Pretext
_______

"total

case.

and conflicting medical

presented by Polaroid, in rebuttal, was

B.
B.

to

testimony and

Any

evidence

a matter for the jury to

Lattimore's

principally of

effort

evidence that,

to

prove

pretext

consisted

in discontinuing his

STD status

and later terminating his

employment, Polaroid deviated from its

established

practices.

such

policies and

irregularities were

Polaroid argues

insufficient, as

that any

a matter of

law, to

prove pretext.

Most of

little more

was

the "deviations" cited by

than quibbling

"disagreement"

justified Polaroid's

evidence from which a

decision to

over semantics (e.g.,

between

Polaroid and

request for

an IME).

discontinue Lattimore's

As already

Dr.

whether there

Hillier

However,

STD status was

had obtained the results of

noted, Dr. Ramos' report

that

there was

jury reasonably could have found

the Medical Review Board

IME.

Lattimore amount to

that the

made before

Dr. Ramos'

was not issued

until

approximately one

testimony

that

week after the Board's

_____

he

learned

of

the

decision and Williams'

results

via

telephone

-20-

conversation with Dr. Ramos,

addition,

Vincent Pina,

was contradicted by Dr. Ramos.

Polaroid

director, testified

In

that,

under Polaroid's STD policy, it was unimaginable that an employee

who had provided physicians' reports indicating

be

removed from

STD status

before the

disability would

Board reviewed

the IME

suggesting that the

results

results.

There, also, was evidence

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

letter, Williams must

those

have known,

findings were going to be.

examination

Ramos,

to those

was

and the

diagnostic

a perfunctory

evidence

in his

in advance of

August

the IME,

23

what

Lattimore's testimony that the

one,

that Dr.

examinations or

findings

review

although

Ramos

disputed by

did not

perform

Lattimore's medical

Dr.

any

records

could provide additional support for such an inference.

In

short, although

the evidence

of pretext

is thin,

disputed

and

sufficient

to

Massachusetts

proof

susceptible

create

alone,

varying

jury

law provides

of pretext,

denying

to

interpretations,

question.

that

Accordingly,

an employee

the District

Polaroid's motion for judgment

it

Court

since

may prevail

did not

as a matter

is

err

upon

in

of law with

respect to the Chapter 151B claim.

C.
C.

Discriminatory Intent
Discriminatory Intent
_____________________

As already noted, Title VII requires proof of something

more

than pretext.

It

also

requires proof

-21-

of discriminatory

intent.

Polaroid argues

decisions

to

discontinue

Lattimore's STD

terminate his employment,

intent.

were motivated

no evidence that

status

by any

and,

its

later,

discriminatory

We agree.

Lattimore's claim

entirely

upon

decisions

and

administrator

the

that there is

plant

on

of

discriminatory intent

allegations that

upon the

fact

Mitchell

that

was

is

involved in

Polaroid's human

based

the

resources

was called to the scene when Lattimore returned to

August 24

and

the

Williams apparently became heated.

discussion

between him

and

As already noted, Polaroid presented evidence

decisions at

support

issue were made

of his

assertion

decisions, Lattimore

by the Board

that Mitchell

cites evidence

that the

and by Montes.

participated in

In

those

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

than

to

prove

continued

to be

That fact,

was

anything

other

Lattimore's

that

"supervisor" during

alone, has little significance

out of

insufficient

participated,

work and

not being

to support

in any way,

Mitchell

in the

that

have

period.

inasmuch as Lattimore

supervised.

reasonable

may

By itself,

inference that

decision to

it is

Mitchell

remove Lattimore

from STD status or

for concluding

to fire him.

that any

Nor

does it provide any

alleged racial prejudice

basis

on Mitchell's

part infected those decisions.

-22-

Similarly,

Polaroid's

human

participate in

the

fact

resources

that

Florence

administrator,

the discussion with

Ramos-Jones,

was

Lattimore on August

asked

to

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

participation

termination

is

as

dealt

evidence

that

"racial

Polaroid

"racial matter."

evidence regarding

why Ms.

discussion.

If,

for

Lattimore,

himself,

participation

with

viewed

However,

example,

provide

she

became

question

there was

any basis

involved

of

her

Lattimore's

Ramos-Jones became involved

raised the

would not

issues,"

no

in that

because

racial bias,

for inferring

her

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.

discussion, there

Ramos-Jones'

is no

participation

in

justification for the

the

August

24

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.

judgment

matter

as

Therefore, Polaroid

of

law

on

the

Title

IV.
IV.

New Trial
New Trial
_________

Polaroid

was

is entitled to

VII

status

discrimination claim.

Having

determined

that

judgment as a matter of law on three

we

turn our attention

to

of Lattimore's four claims,

to whether that

-23-

entitled

determination requires a

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

jury was a

jury to

one page

noted, the

"jury questionnaire" that

answer three questions.

Lattimore was harassed; whether

caused injury

awarded.

only document completed

See
___

to him and,

Appendix A.

called upon

Those questions

the amount of

Because

the document

the

asked whether

any such harassment

if so,

by the

proximately

damages to

be

was entitled

"questionnaire" rather than "verdict" and because it consisted of

nothing

or

more than "written

other brief

questions susceptible of categorical

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

little

general

any

event,

under those

difference whether

or

special

the

response is

verdict.

It

is

submitted

to a

multiple

claims are

verdict

is returned,

a new

trial is

claims

should

have

been

consideration

not

of those

Sunkist Growers, Inc.

_____________________

370 U.S.

claims

circumstances,

law that,

and only

required if

submitted

may have

makes

characterized as

settled

jury

it

and

when

general

some of

the

affected the

the

jury's

verdict.

v. Winckler & Smith Citrus Products Co.,

______________________________________

19, 29-30, 82 S. Ct. 1130, 1136 (1962); see also Brochu

________ ______

v. Ortho Pharmaceutical,
____________________

642 F.2d

652, 662 (1st

Although we know of no authority directly on

this

Cir. 1981).

point, we hold that

principle is equally applicable to special verdicts.

A new

-24-

trial

ordinarily

is required

encompasses multiple

when

facts and claims

special verdict

some of which

finding

should not

have

been

impossible

submitted

to

tell

to

the

whether

jury.

In either

consideration

of

case,

the

it

is

improperly

submitted claims may have affected the verdict.

In this

case, we believe

the jury's verdict

been affected

by its consideration of

claims.

the

If

finding

that

may have

the erroneously submitted

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.

resulted from

status

to

if the

consideration of both

discrimination claims,3

whether or

verdict.

Alternatively,

what extent

finding of

the harassment and

there

is no

the harassment

way

the job

to determine

claims affected

In either case, a new trial is required.

Conclusion
Conclusion

"harassment"

the

__________

For all of the foregoing reasons we vacate the judgment

entered by the

case

for

District Court,

new

trial

reverse in part

with

respect

to

and remand

the

job

the

status

discrimination claim asserted pursuant to Chapter 151B.

Reversed in part, vacated in part and remanded.

_________________ ________________ _____________

No
__

costs.
_____

____________________

The evidence presented related to both the harassment

status

discrimination claims and

both types of

claims were the

subject of counsels' arguments and the court's charge.

-25-

and job

"Concurrence Follows"

-26-

SELYA,
SELYA,

Circuit Judge
Circuit Judge
_____________

(concurring).
(concurring).

I join

fully in

Judge Torres' comprehensive opinion.

It is, however, unfortunate

that neither attorney suggested that the verdict form require the

jury to report the

Though,

results of its deliberations count

ordinarily, little can

milk, past

be gained

mistakes sometimes teach

by crying

by count.

over spilt

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.
__ _____

commend that

practice to district judges in future multi-count cases.

-27-