April 18, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2033
HARVEY BLOOM,
Plaintiff, Appellant,
v.
AGFA CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Zachary R. Karol, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Donald L. Conn, Jr., with whom Conn, Austin, Conn & Senior
was on brief, for appellant.
John F. Welsh, with whom Marie H. Bowen and Testa, Hurwitz &
Thibeault were on brief, for appellee.
Per Curiam. We have carefully reviewed the briefs and
Per Curiam.
the record in this case, and have given due consideration to the
matters raised at oral argument. Because we agree, for the most
part, with the magistrate judge's thoughtful opinion, see Bloom
v. Agfa Corp., No. 90-10856-ZRK, 1994 WL 548050 (D. Mass. Aug.
10, 1994), we affirm the judgment below substantially on the
basis of that opinion. We add only two brief comments.
First, plaintiff concedes that if his proffered
"statistical evidence" lacked probative force, he had no other
competent proof of an age-based animus. On reflection, we are
persuaded that this evidence is not evidence at all. To say that
a reduction in force discriminated against older workers merely
because 60% of the managers who were laid off were over 40 years
of age proves nothing of consequence about age discrimination in
the absence of complementary evidence as to the ages of all the
managers employed in the unit under analysis. See LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (noting in a
disparate treatment case that appellant's statistical evidence
was flawed inasmuch as it failed to provide important information
anent the applicant pool), cert. denied, 114 S. Ct. 1398 (1994).
We think this proposition has particular cogency where,
as here, logic suggests that the universe of managers might well
be weighted toward the protected class. After all, on average,
one would expect managers in a large corporation to be
experienced hands and, thus, older rather than younger. Given
2
this logical expectation, plaintiff's incomplete equation,
without more, does not supply a sufficient predicate on which to
found a reasonable inference of age-based animus.
Second, we do not believe that the district court
abused its discretion in denying plaintiff's tardy motion to
compel discovery. See generally Mack v. Great Atl. & Pac. Tea
Co., 871 F.2d 179, 186 (1st Cir. 1989) (discussing trial court's
broad discretion in respect to discovery orders). Plaintiff let
three years lapse after the court denied his original motion to
compel without prejudice, and only renewed the motion after the
case had been reached for trial. Parties who, like Bloom, have
easily foreseeable needs for pretrial discovery cannot wait until
the district court is performing rites of interment before
attempting to secure necessary facts. See, e.g., Fusco v. Gen.
Motors Corp., 11 F.3d 259, 266 (1st Cir. 1993) (affirming
district court's denial of appellant's eve-of-trial motion to
compel production when appellant knew a year earlier that
appellee intended to offer evidence on the issue); Medeiros v.
United States, 621 F.2d 468, 470 (1st Cir. 1980) (affirming
dismissal for lack of prosecution when record reflected
"unreasonable delay" by plaintiff in conducting pretrial
discovery). In this instance, plaintiff's effort was too little
too late.
We need go no further. It is clear beyond peradventure
that the trial court did not err either in ordering judgment for
the defendant as a matter of law based on plaintiff's opening
3
statement or in denying plaintiff's belated motion to reopen
discovery. Because this appeal does not yield a substantial
question of law or fact, we summarily affirm the judgment below.
See 1st Cir. R. 27.1.
Affirmed.
Affirmed.
4