USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit

____________________

No. 97-1122

MARK S. IZEN,

Plaintiff - Appellee,

v.

TOSHIBA AMERICA CONSUMER PRODUCTS, INC.,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Hill,* Senior Circuit Judge,

____________________

and Pollak,** Senior District Judge.

_____________________

_____________________

John A. Ridley, with whom

______________

Richard S. Zackin and Crummy, Del

_________________
___________

Deo, Dolan, Griffinger & Vecchione were on brief for appellant.

__________________________________
John D. Deacon, Jr. for appellee.
___________________

____________________

November 21, 1997

____________________

____________________

**

Of the Eleventh Circuit, sitting by designation.

Of

the

Eastern

District

of

Pennsylvania,

sitting

by

designation.

Per Curiam.
Per Curiam.
__________

A jury awarded Mark Izen both compensatory

and punitive

this

damages on his

diversity case

Laws, ch.

151B

claim of

brought pursuant

4.

court, in

to Massachusetts

Toshiba American Consumer

defendant below, appeals this verdict.

district

retaliatory discharge

granting

discharged and did

General

Products, Inc.,

Because we find that the

Izen's 50(a)

motion,

found as a matter of law -- and instructed the jury --

was

in

not resign, we reverse

erroneously

that Izen

and remand for a

new trial.

I.

Mark Izen worked for Toshiba managing sales accounts in

Boston and reported

Donahue.

to the New

Izen claims

Toshiba, Donahue

that,

expressed

England Regional Manager,

during

antisemitic

the

time he

bias

which

worked

James

for

materially

affected

Izen's

working

evaluation from Donahue

recommended that

and

began

conditions.

in April of 1992 --

Izen be demoted

pursuing

After

his

receiving

an evaluation which

-- Izen consulted

complaint

of

after he brought Donahue's behavior

Toshiba's management,

yelled at him.

1992,

Donahue called

Izen also alleges

an attorney

discrimination

Toshiba's internal dispute resolution program.

shortly

a poor

through

Izen claims that,

to the attention of

Izen into

his office

that, during May and

and

June of

Donahue harassed him through phone calls, conferences, and

memoranda and intentionally

did not invite

sales meeting.

-2-

Izen to a

quarterly

The

hearing in

Donahue and

Baesler

Izen

Toshiba dispute

front of David

Izen

had not been

their sides

decision, in

monitor

the

if

work

of

the

which he

discriminated against but

between Donahue and Izen was poor.

would intervene

began

with a

Baesler, Donahue's supervisor.

presented

issued a written

resolution program

conflict

and

concluded that

that communication

Baesler assured Izen that

future conflicts

relationship

Both

with

arose

and that

Donahue

through

he

he

would

monthly

meetings.

to

After Baesler's decision issued, Izen

Baesler

and

disagreement

Toshiba's

with

senior

Baesler's

management

decision

but

wrote a letter

expressing

reaffirming

his

his

commitment to the company.

On

June

17,

Toshiba's personnel

1992,

Robert

Valentine,

representing

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

attorney, John

Deacon, responded

Donahue's

letter

continuing

retaliation,

as a ratification

stating that:

resolved.

with a

On July

1, Izen's

letter complaining

characterizing

of Donahue's retaliatory

of

Valentine's

actions, and

As a

result of Mr. Donahue's misconduct, and

the

company's

Izen's

refusal to

employment

intolerable
termination.

and

correct

conditions
constitute

All

have
a

it, Mark
become

constructive

remedies available by

law

will be pursued.

On

July 8,

Anderson

responded

to

Deacon's

stating in part:

-3-

I am sincerely sorry that Mark has decided to

leave

the company.

I am

also disappointed

letter,

that he has elected not to try to resolve his

problem within

the Company.

Toshiba's effort

I believe that

to resolve

the matter

was

genuine and sincere.

Anderson

should

concluded

get

in

his

touch

concerning

his

disputing

Anderson's

reasserting

letter by

with

final

his

informing

Valentine

check.

Deacon

assertion

claim

that

to

make

Izen

had

that Izen

arrangements

responded

that

Toshiba

Deacon

on July

had

10,

resigned,

endorsed

Donahue's

actions, and further stating that:

If

the

Company

termination
retract

of

its

discriminatory

wishes
Mark's

of

mistreatment,

Mark follow

your

retract

employment

endorsement

me in writing by July
have

to

15.

Mr.

and

its
to

Donahue's

please contact

Otherwise, I will

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

to

what

do

his

job

under

conditions" and affirming

concluded.

he

perceives

to

be

be unable

intolerable

that the separation process

should be

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

retaliated and

ultimately discharged

Mass. Gen. Laws Ann. ch. 151B

4.1

that violation, Toshiba

him, all

Izen's claims went before

____________________

Section 4 provides in relevant part that:

It shall be an unlawful practice:

-4-

in violation

of

jury and, at the close

to Fed. R. Civ.

was terminated

of all the evidence, Izen

P. 50(a) for the district court to

and did not

resign.

The district

Izen's motion and, accordingly, instructed

retaliatory

discharge claim

the

jury

was

whether Izen was terminated in retaliation

discrimination.

discrimination.

moved pursuant

The jury was

find that he

court granted

the jury that on

to

determine

the

only

for his complaints of

also instructed on Izen's claim of

against

The

jury

Izen

but

termination;

jury

found

that

that Toshiba

retaliation was

based on its

awarded

had

not

the

discriminated

cause

finding of retaliatory

Izen $36,680

for

Post-trial,

economic loss

of

Izen's

discharge the

and

$150,000 in

punitive

damages.

$120,337

in

attorney's

judgment

as

In

this appeal, Toshiba claims that the district court

matter

the district court

fees and

of

law

denied

on

the

awarded Izen

Toshiba's

claim

of

motion for

retaliatory

discharge.

erred in not allowing the

jury to consider whether Izen resigned

____________________

1)

For

an employer,

agent, because of
. .

by

the . . .

himself or

his

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

organization
discharge,

person,

or
expel

employer,

employment
or

labor

agency

to

otherwise discriminate

against any person because he has opposed any

practices

forbidden

under

this

chapter

. . .

-5-

or was terminated.

Toshiba also claims that:

1) the trial court

erred

in limiting

writing

Anderson's

the letters

to Deacon;

damages and attorneys'

new

to his

2) the

motives for

award of

Because

punitive

we find, for

of this opinion, that a jury

could

have concluded that Izen resigned, and that therefore

the district court

we

and

fees was improper.

the reasons given in part II

reasonably

testimony as

erred in taking that question

reverse the judgment

of the district court

from the jury,

and remand for a

trial on Izen's claim of retaliatory discharge.

reversal on this

ground, we find it unnecessary to

In light of

reach any of

the other errors urged by Toshiba.

II.

Judgment as a matter of law

evidence viewed from the

movant is

so one-sided

may be granted only if the

perspective most favorable to the

that the movant

is plainly

non-

entitled to

judgment, for

outcome.

1994).

reasonable

Gibson
______

minds

could

not

v. City of Cranston, 37
__________________

differ

F.3d 731

as

to

the

(1st Cir.

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

the letters

resigned

exchanged in June

and,

matter of law

found that no jury could infer from

therefore,

and July

the district

of 1992

court

that Toshiba terminated Izen.

district court stated

In

that Izen

determined

-6-

as a

so finding, the

that, even if Anderson's letter

was motivated by a sincere belief

had

of July 8

that Izen had resigned ("I

am

sincerely sorry

Deacon's July

notion

that Mark

has decided

10 letter should

("If the

to leave

the company"),

have disabused Anderson

company wishes

to retract

its

of that

termination of

Mark's employment . . . ").

The

July

10

However,

continuing

district court's result would be sound if Deacon's

letter

maintained only

that letter appeared

his employment

that

Izen

to lay out

with Toshiba.

had not

resigned.

conditions for Izen's

Specifically, Deacon

stated

that Anderson should write

wanted "to

retract

to him by

retract its termination

its

endorsement

mistreatment," and

of

of Mark's employment

Mr.

that "[o]therwise,

Donahue's

I will

your instruction to make arrangements with Mr.

final check."

been no

July 15 if Toshiba

discriminatory

have Mark

follow

Valentine for his

Given Toshiba's basic position --

"termination" or

and to

that there had

"discriminatory mistreatment" of

Izen

and that Toshiba's actions in no way constituted an "endorsement"

of

such

alleged

"mistreatment" --

satisfy Izen's request.

Toshiba

clearly

could not

jury could reasonably have found that

Izen's conditions for his return implied that he had already left

the

company,

whether

constructive discharge.

through

resignation,

For this reason,

termination,

we conclude that

or

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

based on

that

we reverse

and

verdict and

the judgment

in

Izen's favor

-7-

verdict

cannot be

sustained.

In consequence,

remand for a new trial on Izen's claim of retaliatory discharge.

Toshiba

for

judgment as

constructively

argues that this court should grant its motion

a matter

of

discharged.

motion because it

law and

The

find that

Izen

was not

district court denied Toshiba's

ruled that Izen

was terminated, thus

mooting

the question of whether a reasonable person in his position would

feel compelled

to

resign.

district court's Rule 50(a)

Now

the

jury is

have ruled

that

the

determination was erroneous, whether

Izen has put forth sufficient

go to

that we

once again

proof of constructive discharge to

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.

-8-