October 7, 1993 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1050
THEODORE LEBLANC,
Plaintiff, Appellant,
v.
GREAT AMERICAN INSURANCE COMPANY,
Defendant, Appellee.
ERRATA SHEET
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1050
THEODORE L. LeBLANC,
Plaintiff, Appellant,
v.
GREAT AMERICAN INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Walter M. Phillips, Jr., with whom Phillips and Phelan,
Sigmund J. Roos and Peabody & Brown were on brief for appellant.
Kalvin M. Grove with whom Joel W. Rice and Fox and Grove,
Chartered were on brief for appellee.
September 29, 1993
CAMPBELL, Senior Circuit Judge. On October 19,
1990, the defendant-appellee, Great American Insurance
Company ("Great American"), terminated its employment of the
plaintiff-appellant, Theodore L. LeBlanc, who was then fifty-
nine years old. LeBlanc brought this action in the district
court against his former employer pursuant to the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621-
634 (1985 & Supp. 1993), and Mass. Gen. L. ch. 151B, 4.
The district court entered summary judgment in Great
American's favor, and this appeal followed. We affirm.
I.
JURISDICTION
Great American contends that this court is without
jurisdiction over LeBlanc's appeal from the district court's
order granting summary judgment in its favor. To follow this
argument, it is necessary to understand the procedural
history of this case.
The district court rendered its final judgment
granting summary judgment to Great American on November 2,
1992. On November 10, LeBlanc moved for reconsideration
under Fed. R. Civ. P. 59(e). On December 2, 1992, while this
motion for reconsideration was still pending, LeBlanc filed a
notice of appeal from the November 2, 1992, grant of summary
judgment. Because at the time LeBlanc filed his notice of
appeal the district court had not yet ruled on LeBlanc's
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motion for reconsideration, we determined that we were
without jurisdiction to consider the appeal and accordingly
dismissed it. On December 21, 1992, the district court
denied LeBlanc's motion for reconsideration. LeBlanc filed a
second notice of appeal on December 28. The second notice of
appeal asked for relief "from the Order entered December 21,
1992, denying Plaintiff's Motion for Reconsideration of the
court's previously entered order of November 2, 1992,
granting summary judgment in favor of defendant Great
American Insurance Companies [sic]."
Great American argues that LeBlanc's second notice
of appeal, because it only challenges the district court's
denial on December 21, 1992 of LeBlanc's Rule 59(e) motion,
does not confer jurisdiction upon this court to entertain an
appeal from the district court's judgment of November 2,
1992, granting summary judgment. Appellee insists we possess
jurisdiction only to consider the narrower factors relevant
to the district court's denial of LeBlanc's motion for
reconsideration. We disagree.
It is true that Fed. R. App. P. 3(c) states that
"[t]he notice of appeal shall specify the . . . order or part
thereof appealed from." Rule 3(c)'s "commands are
jurisdictional and mandatory." Kotler v. American Tobacco
Co., 981 F.2d 7, 10-11 (1st Cir. 1992) (citing Smith v.
Barry, U.S. , 112 S. Ct. 678, 682, 116 L. Ed. 2d 678
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(1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-
16, 108 S. Ct. 2405, 2407-08, 101 L. Ed. 2d 285 (1988)).
Nevertheless, courts have been admonished to interpret Rule
3(c) liberally. Id.; see Foman v. Davis, 371 U.S. 178, 181-
82, 83 S. Ct. 227, 228-30, 9 L. Ed. 2d 222 (1962).
In general, "an appeal from the denial of a Rule
59(e) motion is not an appeal from the underlying judgment."
Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991)
(citing Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871
F.2d 1, 2-3 (1st Cir. 1989); Pagan v. American Airlines,
Inc., 534 F.2d 990, 992-93 (1st Cir. 1976)). Yet this rule
is not inflexible. This circuit has allowed a timely appeal
from the denial of a timely Rule 59(e) motion to serve as
notice of an appeal from the underlying judgment in cases
where the appellant's intent to appeal from the judgment is
clear. Id.; see Foman, 371 U.S. at 181-82. In making this
assessment, we consider the notice of appeal "in the context
of the record as a whole." Kotler, 981 F.2d at 11.
Foman v. Davis involved facts very similar to those
in this case. The district court had dismissed the complaint
for failure to state a claim upon which relief could be
granted. The next day, plaintiff moved to vacate the
judgment, pursuant to Fed. R. Civ. P. 59(e), and also moved
to amend the complaint. While the motions were still
pending, plaintiff filed a notice of appeal from the district
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court's dismissal of the complaint. Shortly thereafter, the
district court denied the plaintiff's motions. The plaintiff
then filed a second notice of appeal from the denial of the
motions.
Although the parties in Foman briefed and argued
the merits of the district court's dismissal of the complaint
as well as the district court's denial of the plaintiff's
motions, the court of appeals, of its own accord, dismissed
the appeal insofar as it was taken from the district court's
dismissal of the complaint. The court of appeals held that
the second notice of appeal was "ineffective to review the .
. . judgment dismissing the complaint because the notice
failed to specify that the appeal was being taken from that
judgment as well as from the orders denying the motions."
Foman, 371 U.S. at 180-81.
In reversing the court of appeals, the Supreme
Court held that "[t]he defect in the second notice of appeal
did not mislead or prejudice the respondent." Id. at 181.
Although the Court agreed that the first premature notice of
appeal had had no effect,1 it ruled that, "[t]aking the two
notices and the appeal papers together, petitioner's
intention to seek review of both the dismissal and the denial
1. Similarly, the first notice of appeal in this case was
without effect. See Fed. R. App. P. 4(a)(4)(iii) (stating
that a notice of appeal filed before the disposition of a
motion under Rule 59 to alter or amend the judgment shall
have no effect).
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of the motions was manifest." Id. The Court found support
for this conclusion from the fact that both parties had
briefed and argued the merits of the dismissal on appeal.
The Court's decision in Foman seems to us to be
dispositive here. LeBlanc's intent to appeal from the
district court's November 2, 1992, grant of summary judgment
was plain. The two notices taken together revealed LeBlanc's
desire to appeal not just from the motion for reconsideration
but also from the underlying judgment.
II.
BACKGROUND
Great American is an all lines insurance company
with its headquarters in Cincinnati, Ohio. As of October
1990, when Great American dismissed LeBlanc, Great American
was divided into four geographical regions: Northeast, South,
Midwest, and West. In addition to these geographical
divisions, Great American was organized according to the
lines of business, distinguishing between personal and
commercial lines of insurance. At the time of his discharge,
LeBlanc was employed by Great American Northeast, Inc. (the
"Northeast Zone") in its commercial lines division.
Great American hired LeBlanc in October 1980 as a
branch manager in its Wheaton, Maryland, office. At that
time, LeBlanc was forty-nine years old. From 1980 through
1988, LeBlanc worked for Great American in Maryland. In
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January 1989, Great American transferred the fifty-seven-
year-old LeBlanc, with his consent, to eastern Massachusetts
to serve as a commercial lines Agency Operations
Representative ("AOR"). The transfer was approved by Al
Conte, then-acting president of the Northeast Zone, who also
agreed to pay for LeBlanc's moving expenses and to give him a
sixteen percent pay raise.
In his capacity as an AOR, LeBlanc was expected to
market Great American commercial insurance to independent
agents or brokers in eastern Massachusetts and assist those
agents and brokers who were already selling Great American's
insurance products. When LeBlanc started in eastern
Massachusetts, he joined Charles DeMartino, then fifty-six
years old, as one of two AORs marketing Great American
commercial lines insurance in eastern Massachusetts. LeBlanc
and DeMartino worked together in eastern Massachusetts until
LeBlanc's discharge.
According to Great American's evidence, which is
not contradicted, the decision to dismiss LeBlanc had its
genesis in August 1990, when Conte began to prepare a budget
for the upcoming year for the Northeast Zone. Because the
Northeast Zone was experiencing financial problems at the
time, Thomas Hayes, Executive Vice-President of Great
American, instructed Conte to submit a leaner budget to
corporate headquarters. Although Conte sought ways to reduce
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expenses without dismissing personnel, he concluded, in
September and early October 1990, that personnel cuts would
have to be made.
Conte decided, with the approval of Hayes and Human
Resources personnel in Cincinnati, to eliminate or leave
vacant five positions in the Northeast Zone. Those people
directly affected by Conte's decision included LeBlanc,
William St. George, a forty-seven-year-old underwriter
working in the Windsor, Connecticut, headquarters of the
Northeast Zone, and Dwight Bowie, the thirty-eight-year-old
Profit Center Manager in Hartford, Connecticut. In addition,
two other vacant positions in the Northeast Zone were
eliminated. They included the AOR Manager in the Syracuse,
New York, office, a position that had already been vacated by
the resignation of Tim Johnson, age twenty-six, and an
underwriting position in Hartford, Connecticut, that had been
vacant for some time.
On October 19, 1990, Great American informed
LeBlanc that he was being dismissed. LeBlanc was told that
the decision to eliminate his position was based on budget
constraints, and not because of his age or his individual
performance. Immediately after LeBlanc's discharge,
DeMartino, the remaining AOR in eastern Massachusetts, who
was then fifty-seven, assumed responsibility for four or five
of the approximately fifteen insurance agents whom LeBlanc
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had serviced. The remaining agents were assigned to
underwriters in Great American's Lancaster, Pennsylvania,
office, which was responsible for underwriting insurance in
eastern Massachusetts.
Approximately nine months later, in July of 1991,
Great American decided to transfer underwriting
responsibility for eastern Massachusetts from the Lancaster
office to the Windsor, Connecticut, office. At that time,
Anne Daley, a thirty-year-old AOR from the Windsor,
Connecticut, office, began to service agents in eastern
Massachusetts. Daley, who had been hired by Great American
prior to LeBlanc's discharge, and who had previously serviced
agents in Connecticut and western Massachusetts, dropped her
Connecticut agents to service the eastern Massachusetts
agents, but continued to service agents in western
Massachusetts. From July through September 1991, Daley
serviced some of LeBlanc's former eastern Massachusetts
agents. Daley left Great American in September 1991. Since
that time, DeMartino has been the only Great American AOR
servicing agents in eastern Massachusetts.
III.
DISCUSSION
A. Summary Judgment
Because our review of a grant of summary judgment
is de novo, we, like the district court, are obliged to
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review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party's favor. Mesnick v. General Elec. Co., 950
F.2d 816, 820 (1st Cir. 1991), cert. denied, U.S. ,
112 S. Ct. 2965, 119 L. Ed. 2d 586 (1992); Griggs-Ryan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment
is properly granted where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c);
see Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113,
1116 (1st Cir. 1993); Lawrence v. Northrop Corp., 980 F.2d
66, 68 (1st Cir. 1992).
Summary judgment is a procedure that involves
shifting burdens between the moving and the nonmoving
parties. Initially, the onus falls upon the moving party to
aver "`an absence of evidence to support the nonmoving
party's case.'" Garside v. Osco Drug, Inc., 895 F.2d 46, 48
(1st Cir. 1990) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986)).
Once the moving party satisfies this requirement, the
pendulum swings back to the nonmoving party, who must oppose
the motion by presenting facts that show that there is a
"genuine issue for trial." Anderson v. Liberty Lobby, Inc.,
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477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202
(1986) (citing Fed. R. Civ. P. 56(e)); see Goldman, 985 F.2d
at 1116; Lawrence, 980 F.2d at 68; Garside, 895 F.2d at 48
("[A] `genuine issue' exists if there is `sufficient evidence
supporting the claimed factual dispute' to require a choice
between `the parties' differing versions of the truth at
trial.'" (quoting Hahn v. Sargent, 523 F.2d 461, 464 (1st
Cir. 1975), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L.
Ed. 2d 754 (1976))). To oppose the motion successfully, the
nonmoving party "may not rest upon mere allegation or denials
of his pleading." Anderson, 477 U.S. at 256. Moreover, the
evidence presented by the nonmoving party "`cannot be
conjectural or problematic; it must have substance in the
sense that it limns differing versions of the truth which a
factfinder must resolve at an ensuing trial.'" Mesnick, 950
F.2d at 822 (quoting Mack v. Great Atl. & Pac. Tea Co., 871
F.2d 179, 181 (1st Cir. 1989)). Indeed, "[e]ven in cases
where elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party
rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
Thus, to defeat a properly supported motion for summary
judgment, the nonmoving party must establish a trial-worthy
issue by presenting "enough competent evidence to enable a
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finding favorable to the nonmoving party." Goldman, 985 F.2d
at 1116 (citing Anderson, 477 U.S. at 249).
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B. The Age Discrimination Claims2
1. The Legal Framework
In an ADEA discrimination lawsuit, the plaintiff
bears the ultimate "`burden of proving that his years were
the determinative factor in his discharge, that is, that he
would not have been fired but for his age.'" Mesnick, 950
F.2d at 823 (quoting Freeman v. Package Mach. Co., 865 F.2d
1331, 1335 (1st Cir. 1988)). At least when there is little
overt evidence of age discrimination, the case usually
follows the ritualized burden-shifting paradigm in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817,
1824-26, 36 L. Ed. 2d 668 (1973); see, e.g., Goldman v. First
Nat'l Bank of Boston, 985 F.2d 1113 (1st Cir. 1993); Lawrence
v. Northrop Corp., 980 F.2d 66 (1st Cir. 1992); Mesnick v.
General Elec. Co., 950 F.2d 816 (1st Cir. 1991), cert.
denied, U.S. , 112 S. Ct. 2965, 119 L. Ed. 2d 586
(1992). Under this formulation, a plaintiff opens with a
prima facie showing of certain standardized elements
suggestive of possible discrimination. McDonnell Douglas,
411 U.S. at 802; Goldman, 985 F.2d at 1117; Lawrence, 980
F.2d at 69; Mesnick, 950 F.2d at 823.
2. LeBlanc does not specifically argue that the district
court erred in granting summary judgment for Great American
under the Massachusetts Anti-Discrimination Act, Mass. Gen.
L. ch. 151B, 4 (1982 & Supp. 1988).
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The elements of the prescribed prima facie case
vary, within the age discrimination context, depending upon
whether or not the plaintiff was dismissed as part of a
reduction in force. If there was no reduction in force, the
plaintiff establishes the prima facie case by demonstrating
that he "(1) was at least forty years of age, (2) met the
employer's legitimate job performance expectations, (3)
experienced adverse employment action, and (4) was replaced
by a person with roughly equivalent job qualifications."
Goldman, 985 F.2d at 1117; see Mesnick, 950 F.2d at 823. But
if the job loss was part of a reduction in force, the
plaintiff need not show replacement by someone with
equivalent job qualifications. Instead, to satisfy element
(4), the plaintiff may demonstrate either that "the employer
did not treat age neutrally or that younger persons were
retained in the same position." Hebert v. Mohawk Rubber Co.,
872 F.2d 1104, 1111 (1st Cir. 1989), quoted in Goldman, 985
F.2d at 1117; Lawrence, 980 F.2d at 69; Connell v. Bank of
Boston, 924 F.2d 1169, 1173 n.5 (1st Cir.), cert. denied,
U.S. , 111 S. Ct. 2828, 115 L. Ed. 2d 997 (1991).
Establishment of the prescribed prima facie case
creates a presumption that the employer engaged in
impermissible age discrimination. See, e.g., Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct.
1089, 1094, 67 L. Ed. 2d 207 (1981); Goldman, 985 F.2d at
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1117. However, to rebut this presumption, the employer need
only "articulate a legitimate nondiscriminatory reason for
the employee's termination." [Emphasis supplied.] Lawrence,
980 F.2d at 69 (citations omitted). The employer's
obligation is simply one of production. "[T]he burden of
persuasion remains [the employee's] at all times." Id.
(citing Mesnick, 950 F.2d at 823).
Courts have commonly said that once the employer
has proffered a legitimate, nondiscriminatory reason for its
adverse employment decision, the presumption generated by the
employee's prima facie case disappears, and the burden falls
back upon the employee to prove that the reason advanced by
the employer for the adverse employment action constituted a
mere pretext for unlawful age discrimination. See, e.g.,
Goldman, 985 F.2d at 1117; Lawrence, 980 F.2d at 69; Mesnick,
950 F.2d at 823-24. In this circuit, we have always required
not only "minimally sufficient evidence of pretext," but
evidence that overall reasonably supports a finding of
discriminatory animus. Goldman, 985 F.2d at 1117; Lawrence,
980 F.2d at 69-70 (citing Mesnick, 950 F.2d at 825;
Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st
Cir.), cert. denied, U.S. , 112 S. Ct. 181, 116 L. Ed.
2d 143 (1991); Connell, 924 F.2d at 1172; Medina-Munoz, 896
F.2d at 9; Olivera v. Nestle P.R., Inc., 922 F.2d 43, 48 (1st
Cir. 1990)).
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This approach and particularly the latter
aspect, adopted in some but not all circuits was clarified
by the Supreme Court last term. The Court held that, once
the employer succeeds "in carrying its burden of production,
the McDonnell Douglas framework with its presumptions and
burdens is no longer relevant." St. Mary's Honor Ct. v.
Hicks, U.S. , 113 S. Ct. 2742, 2749, L. Ed.2d
(1993). According to the Court:
The presumption [raised by the
plaintiff's prima facie case], having
fulfilled its role of forcing the
defendant to come forward with some
response, simply drops out of the picture
. . . . The defendant's "production"
(whatever its persuasive effect) having
been made, the trier of fact proceeds to
decide the ultimate question: whether
[the] plaintiff has proven "that the
defendant intentionally discriminated
against [him]" because of his race . . .
. The factfinder's disbelief of the
reasons put forward by the defendant
(particularly if disbelief is accompanied
by a suspicion of mendacity) may,
together with the elements of the prima
facie case, suffice to show intentional
discrimination. Thus, rejection of the
defendant's proffered reasons, will
permit the trier of fact to infer the
ultimate fact of intentional
discrimination . . . .
U.S. , 113 S. Ct. at 2749 (citations omitted).
Although the Hicks case arose in the context of a race
discrimination claim brought pursuant to Title VII of the
Civil Rights Act of 1964, the Court's decision seems equally
applicableto agediscrimination lawsuitsbrought underthe ADEA.
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Thus, in an age discrimination case, once the
employer articulates a legitimate, nondiscriminatory reason
for its decision to discharge the employee, the McDonnell
Douglas presumption "drops out of the picture." Hicks,
U.S. , 113 S. Ct. at 2749. The trier of fact must then
simply determine, based on all the evidence, whether the
employer's decision to terminate the plaintiff was motivated
by intentional age discrimination. Id. In reaching this
decision, the trier of fact may consider, along with other
evidence, the evidence put forward to show that the
employer's justification for its adverse employment action
was a pretext. Id. Such evidence, coupled with the elements
of the employee's prima facie case (and, of course, any other
evidence), may (or may not) lead the factfinder to infer that
the employer has engaged in intentional discrimination. Id.
The Hicks decision emanated from an appeal from a
full bench trial. In the context of a summary judgment
proceeding, Hicks requires that, once the employer has
advanced a legitimate, nondiscriminatory basis for its
adverse employment decision, the plaintiff, before becoming
entitled to bring the case before the trier of fact, must
show evidence sufficient for the factfinder reasonably to
conclude that the employer's decision to discharge him or her
was wrongfully based on age. Goldman, 985 F.2d at 1117;
Lawrence, 980 F.2d at 69-70; Villanueva, 930 F.2d at 127-28;
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Connell, 924 F.2d at 1172. "Direct or indirect evidence of
discriminatory motive may do, but `the evidence as a whole .
. . must be sufficient for a reasonable factfinder to infer
that the employer's decision was motivated by age animus.'"
Goldman, 985 F.2d at 1117 (quoting Connell, 924 F.2d at 1172
n.3). Thus, the plaintiff cannot avert summary judgment if
the record is devoid of adequate direct or circumstantial
evidence of discriminatory animus on the part of the
employer. See id. at 1118 (citations and footnote omitted).
2. The Prima Facie Case
The district court granted summary judgment in
Great American's favor on the initial ground that LeBlanc had
failed to make out a prima facie case of age discrimination.
While it is not clear to us that the court erred in this
regard, we prefer because the question is so close to
assume for present purposes that LeBlanc did establish a
prima facie case within the McDonnell Douglas formulation.
This leads us, infra, to examine the adequacy of the evidence
of discriminatory animus, concluding, as we do, that it is
insufficient to create a triable issue.
There is no direct evidence that Great American
discharged LeBlanc because of his age, and the parties agree
that LeBlanc satisfies the first three of the four elements
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of his prima facie case under the McDonnell Douglas
paradigm.3 What is disputed is whether LeBlanc has
established the fourth element of his prima facie case.
Great American argues that, because this is a reduction in
force case, LeBlanc must demonstrate and has failed to do
so that Great American either failed to treat age
neutrally in making its decision to terminate him or retained
younger persons in the same position that he held.4
LeBlanc maintains that Great American did not treat
age neutrally and that it retained younger employees in the
same position that he held because, when Great American
discharged him in October 1990, it continued to employ thirty
other younger AORs in the Northeast Zone. Moreover, LeBlanc
intimates that Great American failed to treat age neutrally
because two of the three people whom Great American actually
discharged as part of its reduction in force, including
LeBlanc, were members of the protected class, i.e., were
3. At the time of his discharge, LeBlanc was fifty-nine
years of age. This satisfies the first element of the
McDonnell Douglas standard, which, in age cases, requires the
plaintiff to be over the age of forty. In addition, LeBlanc
was meeting Great American's job performance expectations.
Finally, LeBlanc experienced adverse employment action,
having been discharged.
4. LeBlanc does not agree that this is a reduction in force
case. He claims that Great American's characterization of
this case as such is merely a pretext for Great American's
discriminatory conduct. Nevertheless, even assuming a
reduction in force occurred, LeBlanc contends that he has
made out a prima facie case.
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forty or older. We are not convinced that the AOR positions
held by the thirty other AORs elsewhere in the region may
properly be considered the "same" position LeBlanc held.
While we agree that the other AOR position in eastern
Massachusetts, which continued to be held by DeMartino (a man
almost identical in age to LeBlanc), was the "same" position,
we are less clear that other AOR positions scattered around
the region say, in Syracuse, New York were the same.
Cf. Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.)
(retention of younger people in other jobs which plaintiff
was qualified to perform not sufficient to establish a prima
facie case), cert. denied, 498 U.S. 878, 111 S. Ct. 211, 112
L. Ed 2d 171 (1990). We also question whether a company can
be said not to treat age neutrally as a matter of law merely
because two of the three people it discharges pursuant to a
reduction in force belong to the protected class. A sample
of three is a small number from which to draw deductions of
this sort. Still, we shall assume, without deciding, that
these two facts taken together would satisfy the fourth
element of the McDonnell Douglas test, bearing in mind the
Court's admonition that "[t]he burden of making out a prima
facie case is `not onerous.'" Mesnick, 950 F.2d at 823
(quoting Texas Dep't of Community Affairs v. Burdine, 450
U.S. at 253).
3. Great American's Justification
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Assuming, without necessarily finding, that LeBlanc has
established a prima facie case of age discrimination, we turn
next to the second prong of the McDonnell Douglas test. This
calls for determining whether Great American has articulated
a legitimate, nondiscriminatory reason for LeBlanc's
dismissal. We hold that it plainly has.
Great American maintains that it reduced its force
in the Northeast Zone in October 1990 because the region was
experiencing financial difficulties. Al Conte, then-acting
president of the Northeast Zone, stated in an affidavit that
the financial difficulties in the Northeast Zone were
attributable to a downturn in the region's economy, high
fixed expenses, and state-mandated residual assessments, or
government pooling requirements, levied against commercial
lines of insurance.5
Great American asserts that it discharged LeBlanc
as part of this economically-driven reduction in force for a
number of interrelated business reasons. Conte, who actually
made the decision to eliminate LeBlanc's position, stated
that he looked to eliminate this Massachusetts position
because Massachusetts was the least profitable state in the
5. These pooling requirements were charges assessed by state
governments against insurance companies in certain lines of
insurance intended to fund otherwise uninsurable business.
These charges were based upon each insurer's pro rata
percentage of total premiums written in that state for a
given line of insurance.
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Northeast Zone. In addition, eastern Massachusetts, an
extremely small geographic area, was being serviced by two
experienced AORs, LeBlanc and DeMartino. Conte believed that
eastern Massachusetts would be the least harmed of the
Northeast Zone regions by the elimination of a full-time AOR
position. Finally, Conte chose to retain DeMartino, then
fifty-eight years old (a year younger than LeBlanc), because
DeMartino had a longer tenure in Massachusetts and had a
claims adjusting background, not possessed by LeBlanc, that
provided Great American with greater versatility in the event
of hurricanes, storms, or floods.
The explanations for LeBlanc's discharge offered by
Conte fully satisfy Great American's burden of production
under the second prong of the McDonnell Douglas test. It has
presented, "`through the introduction of admissible
evidence,' reasons for its actions which, if believed by the
trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action."
St. Mary's Honor Ctr. v. Hicks, U.S. , 113 S. Ct. at
2747 (quoting Burdine, 450 U.S. at 254-55) (emphasis in
original). Accordingly, the presumption of age
discrimination raised by LeBlanc's prima facie case has
vanished. Left to be decided is whether the evidence, in its
entirety, would permit a reasonable factfinder to infer that
-24-
Great American's decision to terminate LeBlanc was inspired
by age animus.
4. LeBlanc's Evidence of Age Animus
LeBlanc points to two types of circumstantial
evidence as supporting an inference that Great American's
decision to terminate him was motivated by intentional age
discrimination. First, LeBlanc contends that the reasons
articulated by Great American for his dismissal could be
found to be mere pretexts offered to disguise the defendant's
age animus. Second, LeBlanc argues that certain statistical
evidence he presented suffices to show that Great American
was engaging in a pattern of discriminatory conduct towards
older employees.
a. Evidence of Pretext
LeBlanc submits that a layoff of only three
employees out of 212 salaried, exempt employees in the
Northeast Zone cannot be characterized as a bona fide
reduction in force.6 Moreover, he claims that Great
American did not engage in a reduction in force because it
hired ten new AORs in 1990 prior to his dismissal. We
conclude, however, that a reasonable factfinder could not
infer pretext or age discrimination from these circumstances.
6. Although LeBlanc fails to spell out the specific
characteristics of a reduction in force as he understands the
term, he insists that a true reduction in force occurs, for
instance, when 1,000 employees out of an employee population
of 5,500 are dismissed.
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An employer need not dismiss any particular number
of employees, or terminate a set percentage of the work
force, to institute a reduction in force. Rather, "[a] work
force reduction situation occurs when business considerations
cause an employer to eliminate one or more positions within
the company." Barnes v. GenCorp Inc., 896 F.2d at 1465
(emphasis added). According to Al Conte, Great American's
corporate headquarters ordered him to submit a leaner budget
for the Northeast Zone for the upcoming year because it was
concerned about the region's financial difficulties. To
comply, Conte decided that it would be necessary to eliminate
five positions, two of which were unfilled at the time.
Under these circumstances, the fact that Conte laid off only
three employees, including LeBlanc, as part of his claimed
initiative to trim expenses does not by itself suggest that
the dismissals were mere pretexts rather than bona fide
reductions in force. Other evidence would be needed from
which to conclude that Great American's stated reasons were
mendacious.
Nor could a rational factfinder conclude that Great
American's purported reduction in force was a pretext for age
discrimination simply because it hired ten younger AORs
elsewhere in the Northeast Zone in the period before
discharging LeBlanc in October 1990. LeBlanc provides no
evidence that the hiring of younger AORs outside of eastern
-26-
Massachusetts was tied in any way to Great American's
decision to eliminate the older LeBlanc's position in eastern
Massachusetts; nothing suggests they were hired to assume
LeBlanc's responsibilities. LeBlanc submits that a
reasonable juror might conclude that a company as
sophisticated as Great American would not legitimately decide
to engage in a reduction in force shortly after adding ten
new positions. But to reach any such conclusion on this
record, a juror would have to indulge impermissibly in
unsupported speculation. See Medina-Munoz, 896 F.2d at 8.
One can imagine perfectly legitimate considerations for
increasing the number of AORs elsewhere in the region while
cutting back in eastern Massachusetts. It is not a court's
role "to second-guess the business decisions of an employer."
Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st
Cir. 1990).
LeBlanc also claims that he was not dismissed
pursuant to a reduction in force because he was replaced by
Anne Daley. It is true that "[a]n employee is not eliminated
as part of a work force reduction when he or she is replaced
after his or her discharge." Barnes, 896 F.2d at 1457.
Nonetheless, Daley did not, in fact, replace LeBlanc. A
discharged employee "is not replaced when another employee
is assigned to perform the plaintiff's duties in addition to
other duties, or when the work is redistributed among other
-27-
existing employees already performing related work." Id.
Rather, "[a] person is replaced only when another employee is
hired or reassigned to perform the plaintiff's duties." Id.
Daley was not hired to perform LeBlanc's duties.
She began working for Great American in its Windsor,
Connecticut, office one month before LeBlanc was discharged,
and did not begin to service agents and brokers in eastern
Massachusetts until July 1991, approximately nine months
after LeBlanc's departure. Prior to then, she serviced
agents only in Connecticut and western Massachusetts. Even
in July 1991, and thereafter, Daley did not perform anything
like all of LeBlanc's former duties. Moreover, while
assigned to some (though not all) of LeBlanc's former agents
in eastern Massachusetts, she continued to service agents in
western Massachusetts. Thus, at most, her temporary
assignment included performing some of LeBlanc's prior
responsibilities while carrying on duties of her own never
performed by him. And even this partial performance of
LeBlanc's duties lasted for only three months. This did not
amount to replacing him.7
LeBlanc next disputes Great American's claim that
it was experiencing financial difficulties in the Northeast
Zone and in Massachusetts in 1990. LeBlanc opines that the
7. Since September 1991, when Daley resigned from Great
American, Charles DeMartino has been the only AOR in eastern
Massachusetts.
-28-
primary method for determining whether a particular state or
a branch office is profitable is by comparing what is
referred to as the total benchmark figure ("TBM") with the
total loss ratio ("TOT"). According to LeBlanc, when the TBM
figure exceeds the TOT figure, it reflects profitability.
LeBlanc asserts that Great American's Gross Accident Year
Analysis Report ("GAYAR") showed that, for the years 1987
through 1991, Massachusetts was the only state among the four
largest producing states in the Northeast Zone8 consistently
to have a TBM figure that exceeded its TOT figure.
The GAYAR, however, was only one of many records
kept by Great American that measured the company's
profitability in the Northeast Zone and in Massachusetts.
The Effective Accident Year Report for Massachusetts, for
instance, revealed that, in 1990, the TOT figure exceeded the
TBM figure fifty to forty-three.9 This was a strong
indication of unprofitability in Massachusetts. In addition,
the profit and loss statements for the various offices in the
Northeast Zone revealed that the region was experiencing
8. The other three states were New York, New Jersey, and
Connecticut.
9. The difference between the GAYAR and the Effective
Accident Year Report is that the former measured loss ratios
on a policy year/accident year basis while the latter
measured loss ratios on a calendar year basis. According to
Robert McGuigan, who was a vice-president for Great American
at the time of LeBlanc's discharge, executives would evaluate
the calendar year loss ratios, not the policy year/accident
year loss ratios, to assess profitability.
-29-
financial difficulties in 1990. For instance, the Lancaster
branch office, to which the eastern Massachusetts region
reported, showed a calendar year underwriting loss in 1990 of
approximately $3.7 million; the New Jersey profit center
reported a calendar year underwriting loss in 1990 of roughly
$4.5 million; and the New England profit center suffered a
calendar year underwriting loss in 1990 of approximately $3.8
million. All told, the Northeast Zone incurred a calendar
year underwriting loss in 1990 of $11.8 million.10
Given this evidence of substantial financial
difficulty, we can find no triable issue over Great
American's assertion that unprofitability concerns fueled its
decision to lay off LeBlanc and the others. The question for
a jury would not be whether Great American's finances, viewed
by one yardstick, might arguably be seen by someone else in a
more optimistic light than did its managers, but whether
there was evidence of profitable performance sufficient to
permit a reasonable jury to infer that Great American's
proffered pessimistic analysis given as a reason for the
layoffs was a mere pretense. Viewing all the financial
evidence together, including the GAYAR data, we think a jury
would lack any rational basis from this evidence to conclude
10. This loss appears to be particularly severe when
compared to the $111 thousand calendar year underwriting
profit that the Northeast Zone realized in 1989.
-30-
that Great American's assertions of financial concern, as a
basis for the discharges, were a sham.
Finally, LeBlanc argues that further evidence of
the pretextual nature of Great American's explanation for
terminating LeBlanc lies in the fact that Al Conte did not
consult with Bruce Rutherford, the branch manager of the
Lancaster office and the person to whom LeBlanc reported,
before he made the final decision to dismiss LeBlanc. In
addition, LeBlanc asserts that Joseph Klimas, the vice-
president in charge of personnel for the Northeast Zone, did
not learn about LeBlanc's impending dismissal until one week
before it was officially announced. Although Conte might
have been well served to consult these people before he
decided to discharge LeBlanc, we are not persuaded that this
evidence either undermines the justifications given by Great
American for its decision to dismiss LeBlanc or shows that
Great American or Conte was motivated by age animus. As we
stated in Mesnick v. General Electric Co., "Courts may not
sit as super personnel departments, assessing the merits or
even the rationality of employers' nondiscriminatory
business decisions." 950 F.2d at 825. LeBlanc points to
nothing in the record to suggest why Conte, who, in January
1989, approved LeBlanc's transfer, at Great American's
expense, to eastern Massachusetts and his corresponding
sixteen percent pay raise, would develop an aversion to older
-31-
people less than two years later, especially where he chose
to retain DeMartino, the other AOR in eastern Massachusetts,
who was only a year younger than the fifty-nine-year-old
LeBlanc. See Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173,
175 (8th Cir. 1992); Proud v. Stone, 945 F.2d 796, 797 (4th
Cir. 1991) ("[I]n cases where the hirer and the firer are the
same individual and the termination of employment occurs
within a relatively short time span following the hiring, a
strong inference exists that discrimination was not a
determining factor for the adverse action taken by the
employer."). We note that Conte, himself, was nearly sixty
years old when he decided to terminate LeBlanc and the
others.
b. Statistical Evidence
LeBlanc offers statistical evidence of Great
American's employment practices that he claims would allow a
reasonable trier of fact to infer that Great American's
decision to terminate him constituted an act of illegal age
discrimination. The district court, however, found
otherwise. It ruled that, in light of the totality of the
record, LeBlanc's statistical evidence was insufficient as a
matter of law to demonstrate that Great American wrongfully
considered age in its decision to dismiss LeBlanc. We agree
with the district court.
-32-
In a disparate treatment case such as
LeBlanc's,11 the central focus "is less whether a pattern
of discrimination existed [at the company] and more how a
particular individual was treated, and why." Cumpiano v.
Banco Santander P.R., 902 F.2d 148, 156 (1st Cir. 1990). As
such, statistical evidence of a company's general hiring
patterns, although relevant, carries less probative weight
than it does in a disparate impact case.12 See id.; Mack
v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 184 n.3 (1st Cir.
1989) (questioning how statistics showing a low percentage of
African Americans and women at A & P would have been
admissible in a disparate treatment case). In this context,
statistical evidence in a disparate treatment case, in and of
itself, rarely suffices to rebut an employer's legitimate,
nondiscriminatory rationale for its decision to dismiss an
individual employee. See Walther v. Lone Star Gas Co., 977
F.2d 161, 162 (5th Cir. 1992). This is because a company's
overall employment statistics will, in at least many cases,
have little direct bearing on the specific intentions of the
11. A "disparate treatment" cause of action accrues "when an
employer treats an employee less favorably than others
because of her race, color, religion, sex, [] national
origin," or age. Cumpiano v. Banco Santander P.R., 902 F.2d
148, 156 (1st Cir. 1990).
12. Disparate impact actions arise "from employment
practices, often facially neutral, which (1) cannot be
justified by business necessity and (2) in fact impose
harsher burdens on employees who share a protected
characteristic." Cumpiano, 902 F.2d at 156.
-33-
employer when dismissing a particular individual. Gadson v.
Concord Hosp., 966 F.2d 32, 35 (1st Cir. 1992). "Without an
indication of a connection between the statistics," the
practices of the employer, and the employee's case,
statistics alone are likely to be inadequate to show that the
employer's decision to discharge the employee was
impermissibly based on age. Id.
In the instant case, we do not think that LeBlanc's
statistical evidence would allow a reasonable trier of fact
to infer that Great American engaged in illegal age
discrimination against LeBlanc. The statistics themselves
are of questionable import, and they stand precariously
unsupported by other probative evidence of age
discrimination. There is, moreover, no evidence whatsoever
to connect the statistics to Great American's specific
decision to dismiss LeBlanc.
The flaws in the statistical evidence itself are
notable. First, the comparison of LeBlanc's age with the
distribution of ages in various groups of AORs in the
Northeast Zone from 1989 through 1991 fails to provide
important information regarding the pool of applicants. We
are not told whether "qualified older employees were
available or applied for those jobs." Simpson v. Midland-
Ross Corp., 823 F.2d 937, 943 (6th Cir. 1987). Indeed, the
fact that recently hired AORs are younger than LeBlanc is not
-34-
necessarily evidence of discriminatory intent, but may simply
reflect a younger available work force.
Second, LeBlanc's statistics that compare the ages
of the employees who left Great American for any reason from
1989 through 1991 with the ages of Great American employees
who kept their jobs during the period fail to distinguish
voluntary from involuntary departures. Voluntary departures
obviously have no bearing on whether Great American engaged
in age discrimination. See id. (improper to include "all who
left the company during the relevant period even though they
might have retired . . . or accepted jobs elsewhere"). In
addition, of the twenty-two people who left Great American
either voluntarily or involuntarily during the three-year
period, seventeen left in 1991, the year following LeBlanc's
dismissal. Significantly, the average age of those seventeen
people was actually younger than the average age of the
employees who stayed with Great American.13 We cannot see
how the data from 1991 demonstrate any pattern of age
discrimination whatsoever. Accordingly, if we disregard the
data from 1991, LeBlanc's statistics are based on the
departure of only five employees, including LeBlanc, over two
13. Even when the 1990 hires and the trainees, who are
presumably younger in age than other employees, are excluded
from the employee pool during the three-year period, the
statistical comparisons between jobs that were eliminated and
jobs that were not eliminated in 1991 do not raise an
inference of age discrimination.
-35-
years from an average annual employee population in the
Northeast Zone of approximately 215 people. "[S]uch a small
statistical sample carries little or no probative force to
show discrimination." Fallis v. Kerr-McGee Corp., 944 F.2d
743, 746 (10th Cir. 1991); see Simpson v. Midland-Ross Corp.,
823 F.2d 937, 943 (6th Cir. 1987); Sengupta v. Morrison-
Knudsen Co., 804 F.2d 1072, 1075-76 (9th Cir. 1986); Coates
v. Johnson & Johnson, 756 F.2d 524, 541 (7th Cir. 1985);
Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984). We
conclude that LeBlanc's statistical evidence does not provide
a sufficient basis for a reasonable jury to find that Great
American terminated LeBlanc because of his age.
IV.
CONCLUSION
On the record before us, we find that LeBlanc has
adduced insufficient evidence for a reasonable trier of fact
to infer that Great American's decision to terminate his
employment in October 1990 was motivated by age animus. In
other words, "[t]he evidence presented by [LeBlanc], viewed
in the light most favorable to him, [fails] to create a
genuine issue of material fact as to whether `but for his
employer's motive to discriminate against him because of his
age, [LeBlanc] would not have been discharged.'" Menard v.
First Sec. Servs. Corp., 848 F.2d 281, 289 (1st Cir. 1988)
(quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.
-36-
1979)). Indeed, LeBlanc's arguments are based largely upon
conclusory allegations, improbable inferences, and
unsupported speculation. The district court's decision to
enter summary judgment in Great American's favor was proper.
Affirmed. Costs to appellees.
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