United States Court of Appeals
For the First Circuit
No. 03-2495
ROBERT P. JOYAL,
Plaintiff, Appellant,
v.
HASBRO, INC., d/b/a HASBRO GAMES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Tani E. Sapirstein with whom Sapirstein & Sapirstein was on
brief for appellant.
Neil Jacobs with whom Jessica A. Foster and Hale and Dorr LLP
were on brief for appellee.
August 17, 2004
BOUDIN, Chief Judge. Robert Joyal, the plaintiff-
appellant in this age discrimination case, had worked in Hasbro,
Inc.'s games division for 31 years when he was fired on December
28, 2000. He was then 55 years old, and was replaced by a
subordinate who was 37 years old. After exhausting administrative
remedies, Joyal then brought suit in state court against Hasbro,
which removed the matter to federal court on diversity grounds.
Joyal's complaint charged that Hasbro had illegally
discriminated against Joyal by firing him on the basis of age, in
violation of Mass. Gen. Laws ch. 151B, §4(1B) (2002). In two
further counts, Joyal claimed that Hasbro had breached its
employment contract with him by failing to use progressive
discipline and had improperly deprived him of an end-of-year bonus
to which he was entitled under the company's management incentive
plan.
Following discovery, Hasbro moved for summary judgment on
all three of Joyal's claims. The magistrate judge, acting on the
matter with the consent of the parties, 28 U.S.C. § 636(c) (2000);
Fed. R. Civ. P. 73, granted summary judgment to Hasbro on all
counts on October 27, 2003. Joyal now appeals. We consider de
novo whether the district court properly granted summary judgment,
see Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607,
611 (1st Cir. 2000), and draw all reasonable inferences in favor of
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Joyal, Sparks v. Fidelity Nat'l Title Ins. Co., 294 F.3d 259, 265
(1st Cir. 2002).
The main subject of Joyal's appeal is his statutory age
discrimination claim. The Massachusetts statute, like the federal
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634
(2000), generally prevents employment action taken against older
employees because of their age. Massachusetts case law uses a
burden-shifting device akin to federal law to force the employer to
supply reasons for his action once an easily made prima facie case
is established. Compare Abramian v. President & Fellows of Harvard
Coll., 731 N.E.2d 1075, 1084-86 (Mass. 2000), with McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Here, Joyal provided the prima facie case, primarily by
showing that he was in the age-protected group and was replaced by
a substantially younger man. See Blare v. Husky Injection Molding
Sys. Boston, Inc., 646 N.E.2d 111, 115 (Mass. 1995). Hasbro in
turn provided three specific reasons for the firing, coupled with
facts colorably supporting the reasons: Joyal's misuse or attempted
misuse of company property for personal benefit; retaliation
against an employee who had refused to cooperate with that misuse;
and an abusive management style.
Under Massachusetts law, as under federal law, the
employer's provision of a non-discriminatory reason or reasons
rebuts the presumption of discrimination created by the prima facie
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case, and the issue of discriminatory intent then turns upon the
evidence. Abramian, 731 N.E.2d at 1084-86. Under federal law,
that evidence may include inferences drawn against the employer if
his alleged reason or reasons for the adverse action are shown to
be "pretextual." Udo v. Tomes, 54 F.3d 9, 12-13 (1st Cir. 1995).
Massachusetts law is similar, but in one relevant respect
perhaps even more friendly to plaintiffs. Under Lipchitz v.
Raytheon Co., 751 N.E.2d 360, 366 (Mass. 2001), a plaintiff may be
able--automatically and regardless of circumstances--to avoid a
directed verdict and reach a jury if he or she proves that at least
one of the reasons given by the defendant was pretextual. This
subtlety was not at issue in Fite v. Digital Equip. Corp., 232 F.3d
3, 7 (1st Cir. 2000), where we said that federal and Massachusetts
law were aligned, but were dealing mainly with jury instructions
and not a directed verdict.
If Lipchitz does authorize the jury to decide for the
plaintiff merely because the employer lied in one respect and
regardless of circumstances, this may seem an oddly mechanical
rule; one can imagine easily a case where an unimpeached and
powerful nondiscriminatory reason is proved but the jury finds
"pretextual" a further reason also given by the employer as a make-
weight. But, like the magistrate judge, we will assume arguendo
that under Massachusetts law any deliberately false reason would
get Joyal to a jury.
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In this case, there is no direct evidence, such as
slighting remarks or express admissions, see, e.g., Blare, 646
N.E.2d at 113-14, 118; Fontaine v. Ebtec Corp., 613 N.E.2d 881,
885-86 (Mass. 1993), that Hasbro was hostile to older workers or
that Joyal's dismissal was motivated by age. However, Joyal argues
that the circumstances of the dismissal--above all, the alleged
falsity of one or more of the reasons given--would permit a
reasonable jury to infer that one or more of the reasons was
pretext and therefore, under Lipchitz, that age discrimination was
an actual motive for Joyal's dismissal.
This is the most familiar of issues on summary judgment:
whether, resolving reasonable doubts in his favor, the evidence so
far could rationally support a jury verdict for the plaintiff. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Contrary to Joyal's intimation on appeal, there is no indication
that the magistrate judge misunderstood the legal framework
adversely to Joyal. But, by the same token, our obligation is
independently to assess the evidence and reach our own conclusion.
The basis offered for Hasbro's actions is easily
summarized based on the summary judgment record. Hasbro is a major
toymaker headquartered in Rhode Island with operations in various
other locations. Over a 31-year period, Joyal worked his way up to
a senior vice president position at the company's plant in East
Longmeadow, Massachusetts. David Wilson was the division president
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based at the facility and, at the time of the firing, Joyal
reported to Wilson--who in turn reported to Alfred Verrecchia,
Hasbro's president and chief executive officer in Pawtucket, Rhode
Island.
In August 1999, Joyal through another employee asked a
subordinate, Scott Aye, for the keys to a Hasbro truck so that
Joyal could transport personal materials to his home. This might
appear to be a trivial matter, but Hasbro had a history of criminal
and civil litigation in the 1990s involving corruption and misuse
of company assets. See generally United States v. Serafino, 281
F.3d 327 (1st Cir. 2002). Its company handbook prohibited such
misuse, and an explicit policy statement specifically regarding the
use of company vehicles for private purposes had been circulated to
Joyal's division in March 1999.
Aye refused to give Joyal the truck keys, noting that to
do so would be a violation of company policy. Joyal became angry
and expressed his anger to Aye's immediate supervisor, who gained
the impression that Joyal was planning to retaliate. In September
1999, Joyal demoted Aye to a lower management position and withdrew
certain job responsibilities from him, and during the following
year Aye received a below-average bonus and wage increase. Joyal
then proposed that Aye be supervised by another employee (David
Dunican), whom Aye particularly disliked, even though Aye had
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previously been assured by the company that he would not be thus
assigned.
In the summer of 2000, Aye told the division's director
of human resources that he was seeking legal advice and complained
to Wilson of the apparent retaliation. In August, Wilson met with
Joyal and Aye; Wilson promised Aye that he would not have to report
to Dunican and Aye withdrew a proposed letter of complaint to
corporate headquarters. Wilson also spoke privately to Joyal and
told him to fix his relationship with Aye. Additionally, Wilson
told Joyal to stop his practice of bringing trash from home to the
plant to be disposed of by Hasbro employees.
In this period and in the fall, Wilson also became
concerned about Joyal's management style in dealing with other
subordinates, particularly allegations of harsh language and abuse.
An employee opinion survey around this time showed that Joyal's
department ranked significantly lower than others in categories
such as leadership, teamwork, and fairness of employee treatment;
Wilson's follow-up conversations with Aye and another employee
previously under Joyal's supervision reinforced these concerns.1
In the late fall, Aye was informed by his supervisor that
Joyal was still considering making him report to Dunican. Aye
1
In preparation for litigation, other previous subordinates of
Joyal confirmed his abusive management style; two of them issued
affidavits stating that his behavior had been a contributing cause
to their resignations from Hasbro.
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complained to Wilson, who then contacted the Rhode Island
headquarters. After discussions with other executives and an
investigation by a company lawyer, Verrecchia accepted Wilson's
recommendation that Joyal be terminated, and the termination
occurred on December 28, 2000.
On this appeal, Joyal picks at details, but the evidence
for this history is solid. Joyal says, for example, that he asked
to use the truck but did not succeed, as if this matters. He says
that he "promoted" Aye, but this is a no more than an unpersuasive
gloss on Joyal's acknowledged change of Aye's employment
responsibilities. Joyal claims that the subordinate who replaced
him denied mistreatment at his hands, which is true, but the
subordinate confirmed that other employees had complained to him of
mistreatment by Joyal.
This is a sample, but the other objections are mostly of
the same order. Such minor quibbles are insufficient to create
"genuine issues of material fact" precluding summary judgment.
Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 181-82 (1st
Cir. 1989). Without discussing each contention in detail, it is
enough to say that Joyal's disagreements do not cast serious doubt
on Hasbro's evidence as to what happened.
Joyal also suggests that a jury might think it
implausible that a senior manager would be fired after over 30
years of employment without further discussion and an opportunity
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to mend his ways. But two of the charges against Joyal were fairly
serious--systematic harshness toward subordinates and retaliation
against an employee who sought to frustrate Joyal's violation of
company policy. And Joyal's conduct was not a single incident, but
a set of arguably related deficiencies occurring over a period of
time.
In some measure Joyal was offered an opportunity to
square himself in the initial meeting with Wilson and Aye.
Seemingly, it was the last straw when Wilson learned of the survey
and of Aye's renewed complaint that the Dunican assignment was
still under consideration. Wilson had promised Aye that the
Dunican matter had been dropped and did not want the original
retaliation charge widely aired; and the survey suggested that the
anecdotal reports as to Joyal's management style were well founded.
Against this background, the addition of the truck keys
charge to the list does not rationally suggest that it was
pretextual. Arguably, given the 1990s background this was a more
serious matter than it might have been in other companies--but the
real point is that this delinquency did not stand alone. It was
one of a group of reasons listed for the discharge. The fact that
it was perhaps less serious than the others, and might not have
sufficed standing alone, does not suggest that it was false or
pretext.
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Whether Hasbro was fair or wise does not matter to this
claim, nor does it matter whether Wilson was right in perceiving
Joyal as a harsh manager and one who could not give up a grudge; it
is enough that Wilson so believed. "[I]f the reason given by the
employer is the real reason for its action," it does not matter if
"the employer's action was arbitrary or unwise." Wheelock Coll.
355 N.E.2d at 315. Joyal has pointed to nothing that would entitle
a jury to find that Hasbro disbelieved the reasons it gave or
otherwise based its decision upon Joyal's age.
Joyal also appeals the two contract or contract-related
claims stated in his complaint. One is easily addressed. Joyal
was a senior manager holding his office at will. Nevertheless, he
asserts that two documents issued by the company constituted a
contract between him and the company, binding the latter to provide
"progressive discipline" for misconduct rather than discharge. The
two documents are the company's "Employee Handbook" and its "Guide
to Corporate Conduct."
Massachusetts law does in some circumstances allow an
employee to premise a contract claim on published company
procedures. See O'Brien v. New England Tel. & Tel. Co., 664 N.E.2d
843, 846-50 (Mass. 1996); Jackson v. Action for Boston Comm. Dev.,
Inc., 525 N.E.2d 411, 414-16 (Mass. 1988). Although "[t]here is no
explicit test or 'rigid list of prerequisites' to aid in
ascertaining if a personnel manual comprises a binding contract
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under Massachusetts law," Hinchey v. Nynex Corp., 144 F.3d 134, 141
(1st Cir. 1998) (quoting O'Brien, 664 N.E.2d at 847), both
documents here contain explicit disclaimers stating that they are
no more than guidelines subject to change at will.
Even if they were arguably contracts, it would not affect
the outcome. Joyal points to nothing in them that promises
progressive discipline for employees; the portions of the handbook
provided to the court contain no such language at all, and the
guide simply lists different possible disciplinary actions. As to
Joyal's claim that in practice the company applied progressive
discipline, the company witness relied upon for this view made
clear that there was certainly no such policy for management
employees.
This brings us to Joyal's third and final claim, which is
not for reinstatement but for payment of a bonus (of unspecified
amount). Averring that his department met its financial goals for
2000, Joyal says that under the company's management incentive plan
he would have been entitled to a year-end bonus for 2000 if he had
remained employed into 2001. Under the terms of the plan, he was
ineligible for the bonus because he was let go before the end of
2000.
Under Massachusetts law, an employee who would be
entitled to a bonus or commission based on his past performance and
who is deprived of it by a discharge without "good cause" may
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recover the sum already "earned" even though contingent on a
condition not fulfilled.2 The theory is that even in a contract
for employment at will, there is an implied obligation of good
faith and fair dealing. Recovery is only for this already accrued,
albeit contingent compensation; the implied obligation does not
otherwise give the employee protection against discharge without
cause. Cort, 431 N.E.2d at 911.
One might think from its origin and some of the case law
language that liability under this line of cases would arise only
for "bad faith" discharges, such as a deliberate attempt to deprive
the employee of his bonus or compensation. But Massachusetts
decisions hold that even without a malign motive, a discharge
without "good cause" is enough to make the defendant liable for
contingently due bonuses. Thus in Gram, the Supreme Judicial Court
stated:
[T]he obligation of good faith and fair
dealing . . . requires that the employer be
liable for the loss of compensation that is so
clearly related to an employee's past service,
when the employee is discharged without good
cause. . . . [A]bsence of good faith need not
be proved to the extent that there must be a
showing of an improper motive for the
discharge.
429 N.E.2d at 29.
2
See Cort v. Bristol-Myers Co., 431 N.E.2d 908, 910-11 (Mass.
1982); Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 29 (Mass.
1981); Fortune v. Nat'l Cash Register Co., 364 N.E.2d 1251, 1255-59
(Mass. 1977).
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The incentive plan in this case did not give Joyal an
unqualified right to the bonus if he remained employed into 2001;
all bonuses under the plan were also expressly contingent upon the
approval of Hasbro's CEO. Possibly this would make a difference to
Massachusetts courts, cf. Harrison v. NetCentric Corp., 744 N.E.2d
622, 629-31 (Mass. 2001); Cheney v. Automatic Sprinkler Corp. of
Am., 385 N.E.2d 961, 963-64 (Mass. 1979), especially if the CEO
ordinarily exercised discretion; but we will assume arguendo that
under Cort the CEO's veto would also require good cause.
This poses squarely the question, little discussed in the
Massachusetts cases, of what exactly constitutes "good cause." One
possibility is that someone, conceivably the jury, is left to weigh
the equities and assess whether the particular default merits the
particular penalty (here, the amount of the bonus). Labor
arbitrators sometimes assume such powers under collective
bargaining agreements where discharge or other penalties are at
stake. See Poland Spring Corp. v. United Food & Commercial Workers
Int'l Union, Local 1445, 314 F.3d 29, 33-36 (1st Cir. 2002), cert.
denied, 124 S. Ct. 177 (2003); Keebler Co. v. Truck Drivers, Local
170, 247 F.3d 8, 12-14 (1st Cir. 2001).
The other alternative, which we think better founded in
Massachusetts case law, is to posit an objective standard and to
ask whether the asserted "cause" for discharge is a legitimate one
as opposed to one that is dishonest, arbitrary or trivial. If the
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cause turned on material disputed facts, then a jury would resolve
them and apply the standard; on undisputed facts, who would decide
is less clear, although this is a different issue.3
While the phrase "good cause" in the Cort context has not
been well construed, the concept of "just cause" for discharge has
been glossed several times by Massachusetts courts, see, e.g., G &
M Employment Serv., Inc. v. Commonwealth, 265 N.E.2d 476 (Mass.
1970); Goldhor v. Hampshire Coll., 521 N.E.2d 1381, 1385 (Mass.
App. Ct. 1988), which have also equated the two phrases.4 G & M
involved a statute requiring refunds by employment agencies to
employees discharged early on without just cause. Justice Cutter
stated:
The standard of 'just cause' . . . in the
context of a statute regulating employment
agencies, would require determination (among
other matters) whether there existed (1) a
reasonable basis for employer dissatisfaction
with a new employee, entertained in good
faith, for reasons such as lack of capacity or
diligence, failure to conform to usual
standards of conduct, or other culpable or
inappropriate behavior, or (2) grounds for
discharge reasonably related, in the
3
On some issues--such as contract interpretation--the judge
decides. On others (negligence is the prime example) the jury gets
to apply the standard even on undisputed facts if the case could
reasonably be decided either way. See United States v. Rule
Indus., Inc., 878 F.2d 535, 541-42 (1st Cir. 1989). The choice is
partly one of policy, but is also a product of history. See, e.g.,
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).
4
See Gram, 429 N.E.2d at 28 & n.8; cf. Amoco Oil Co. v.
Dickson, 389 N.E.2d 406, 408-10 (Mass. 1979) (defining "due cause"
by reference to definitions of "good cause" and "just cause").
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employer's honest judgment, to the needs of
his business. Discharge for a 'just cause' is
to be contrasted with discharge on
unreasonable grounds or arbitrarily,
capriciously, or in bad faith.
G & M Employment Serv., Inc., 265 N.E.2d at 480.
A less elaborate but similar definition was given for
good cause in a much earlier case, Rinaldo v. Dreyer, 1 N.E.2d 37,
38 (Mass. 1936), which offered perhaps even greater latitude to the
employer: "If the cause assigned is at least fairly debatable and
is asserted honestly, and not as a subterfuge, that is enough."
Whether or not the Supreme Judicial Court today would go quite so
far might be debated, but G & W has not been disapproved and has
been treated as a governing precedent. See Moriearty et al., 45
Massachusetts Practice: Employment Law § 2.4 (2003).
Measured by G & W's language, there can be no doubt that
good or just cause existed for Joyal's discharge. Even if the
issue were for the jury in a close case, no rational jury could
fail here to find "a reasonable basis for employer dissatisfaction"
based upon "culpable or inappropriate behavior." At the very
least, facts not fairly disputed put Joyal's conduct in the latter
category, permitting under Cort the forfeiture of the contingently
accrued bonus.
Cort by its own terms is designed to prevent the loss of
such contingent payments based upon dishonest or arbitrary action
by the employer. Here, there is no basis for imputing dishonesty
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to Hasbro, and no jury could reasonably describe as "arbitrary" the
discharge of a senior manager who sought to violate clear company
policy, who retaliated against one who complained and who
maintained a poor relationship with other employees under his
authority.
Affirmed.
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