Lattimore v. Polaroid Corp.

• Decision Date: 30 July 1996
• Docket Number: No. 96-1104,96-1104
• Citation: 99 F.3d 456
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 397, 36 Fed.R.Serv.3d 569 Ollie LATTIMORE, Plaintiff-Appellee, v. POLAROID CORPORATION, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 456

99 F.3d 456

72 Fair Empl.Prac.Cas. (BNA) 397, 36

Fed.R.Serv.3d 569

Ollie LATTIMORE, Plaintiff-Appellee, v. POLAROID CORPORATION, Defendant-Appellant.

No. 96-1104.

United States Court of Appeals First Circuit.

Heard July 30, 1996.

Decided Nov. 5, 1996.

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.

Before SELYA, Circuit Judge, TORRES ^* and SARIS, ^** District Judges.

TORRES, 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 pursuant to 42 U.S.C. § 2000e 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

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 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"), 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 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

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 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 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 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.

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 ...