September 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1186
ROBERT F. KELLEHER,
Plaintiff, Appellant,
v.
LORAL INFRARED AND IMAGING SYSTEMS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Robert F. Kelleher on brief pro se.
Alan B. Pearl, Pearl & MacKenzie, P.C., Leonard Paris and
Laurence I. Cohen on brief for appellee.
Per Curiam. Plaintiff-appellant alleged age
discrimination in the termination of his eighteen-year
employment as a quality assurance engineer during a company-
wide reduction in force which occurred shortly after his
former employer was acquired by another corporation. The new
employer, LIRIS, responded that the elimination and
consolidation of employee positions was a necessary cost-
cutting move, and that it had treated age neutrally in the
process. After lengthy discovery, the district court granted
summary judgment to LIRIS because plaintiff's proof failed to
create a genuine issue of fact as to LIRIS's motivation.
Reviewing the judgment de novo, and after a close
examination of the record and briefs, we find no substantial
reason to disagree with the district court's conclusion.
Accordingly, we summarily affirm the judgment, adding only
the following comments in response to two of appellant's
arguments on appeal.
(1) We have reviewed with care the excerpts from
appellant's deposition testimony which he claims were
overlooked by the district court. The testimony does not
identify the anonymous declarant(s) who reported that LIRIS
was prejudiced against older workers and "taking a hard look
at anyone over 40 years of age and earning over 40K."
Appellant named employees who "discussed," "referenced," or
"mentioned" the anonymous statements, not those who initially
-2-
uttered them. Appellant's reliance on Conway v. Electro
Switch Corp., 825 F.2d 593 (1st Cir. 1987), and Woodman v.
Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995) is thus
misplaced. In Conway, we held that the district court did
not abuse its discretion in a gender discrimination case by
admitting into evidence testimony reflecting two prior
instances of gender bias in the treatment of women employees.
The witnesses testified that in each instance a named company
manager explained a decision to deny a pay increase to a
woman employee on the basis of the woman's gender. The named
declarants had authority to make the statements, and one of
them was the president of the company at the time that
plaintiff's employment was terminated. We held that under
Fed. R. Evid. 401, the statements were not wholly irrelevant
to the issues at hand because they might circumstantially
evidence a "corporate state-of-mind" or a "discriminatory
atmosphere."
In Woodman, an age discrimination case, we held
admissible a named supervisor's statement purporting to
communicate management's desire for a younger workforce. The
supervisor was in a position to know of management's
intentions; she was "directly involved" in implementing the
challenged reduction in force; and the statement was
admissible under Fed. R. Evid. 801(d)(2)(D) because it
-3-
concerned matters within the scope of her employment.
Woodman, 51 F.3d at 1093-94.
In contrast, appellant's proof is that anonymous
statements reporting a discriminatory animus were "abound"
during the layoff period, and "bantered about" by numerous
employees. There was no evidence that the banterers were in
a position to know of management's sentiments nor that they
had any responsibility for communicating or implementing
LIRIS's policy. The identification of one of the banterers
as a "supervisor" does not alone provide the missing link,
especially since this supervisor was himself a victim of the
new management's layoff.
Proof of "bantering" by employees fearful of a new
employer's motives for a layoff does not suffice to establish
a genuine issue of fact as to the employer's actual mindset.
Cf. Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th
Cir. 1996) (holding that "rumors, conclusory allegations and
subjective beliefs [are] wholly insufficient evidence to
establish a claim of discrimination as a matter of law"). As
the district court observed, too, appellant's proof did not
satisfy the foundation requirements for admissibility under
Fed. R. Evid. 801(d)(2)(C)(D).
(2) Appellant's evidence also was insufficient to
establish a genuine issue of fact in support of his theory
that he was "replaced" in his position by a younger employee
-4-
and/or that LIRIS retained younger employees in the "same"
position. Viewing the evidence in the light most favorable
to appellant, it could not support a reasonable inference
that any employee assumed a position that was coextensive
with, or identical to, the duties which appellant had
performed. See LeBlanc v. Great American Ins. Co., 6 F.3d
836, 846 (1st Cir. 1993) (an employee is not "replaced" when
another is assigned to perform his duties in addition to
other duties, or when the work is redistributed among other
existing employees already performing related work), cert.
denied, 114 S.Ct. 1398 (1994); cf. Hebert v. Mohawk Rubber
Co., 872 F.2d 1104, 1114 (1st Cir. 1989) (finding sufficient
proof to survive summary judgment where the younger retained
person "exactly" conducted the work of riffed employee, with
only minor modifications).
Appellant's motion for reconsideration of the order
submitting this case for decision without oral argument is
denied. The judgment is affirmed. See Loc. R. 27.1.
-5-