USCA1 Opinion
February 18, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1773
ROBERT GOLDMAN,
Plaintiff, Appellant,
v.
FIRST NATIONAL BANK OF BOSTON,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
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Higginbotham,* Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Denise M. Leydon with whom Weston, Patrick, Willard & Redding was
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on brief for appellant.
Richard P. Ward with whom Robert B. Gordon and Ropes & Gray were
________________ ________________ ____________
on brief for appellee.
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February 18, 1993
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*Of the Third Circuit, sitting by designation.
CYR, Circuit Judge. The First National Bank of Boston
CYR, Circuit Judge.
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terminated the employment of appellant Robert Goldman pursuant to
a reduction in force in 1989. Goldman sued the Bank, asserting,
inter alia, age discrimination in violation of 29 U.S.C. 621-
_____ ____
634 ("ADEA") and Mass. Gen. L. ch. 151B, and breach of a lifetime
employment contract. The district court granted summary judgment
in favor of the Bank. We affirm.
I
I
BACKGROUND
BACKGROUND
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In 1957 the Bank hired Robert Goldman as a clerk in its
Settlement Department. Goldman recalls that Lee Beaulieu, the
personnel officer who interviewed him for the job, told him at
the time he was hired that he would not become wealthy working
for the Bank, but would have a job for life unless he committed a
criminal act against the Bank. Goldman also recalls that Beauli-
eu said the Bank had never laid off an employee.2
Over the ensuing thirty-two years, Goldman held various
positions with the Bank. During the final four years, he worked
as a Custody Administrator in the Custody Administration Unit of
Capital Asset Services, a division of the Treasury and Banking
Services Department, providing administrative services relating
____________________
2Goldman recollects that similar representations were
repeated by various supervisors throughout the course of his
employment with the Bank.
to the Bank's custodial security accounts.3
In 1989, the Bank launched a large-scale reduction in
its work force due to mounting losses in its Treasury and Banking
Services operation. The Bank completely reorganized the Treasury
and Banking Services Department, reconfiguring approximately 252
operational functions into approximately 135 functions. As a
result, 119 positions were eliminated. Thomas Keane, Senior
Operations Manager of the Capital Asset Services Department,
determined that it was necessary to eliminate three of the
fifteen positions in the Custody Administration Unit.
After reviewing recent employee performance evaluations
and consulting with unit supervisors, Keane selected three
employees for dismissal: a twenty-four year old, a thirty-seven
year old, and Goldman, then fifty-two. Keane explained that the
twenty-four year old was suspected of misusing a corporate credit
card; the thirty-seven year old and Goldman were considered the
____________________
3The Bank is a custodian of securities for various clients,
including banks, insurance companies, colleges, and other insti-
tutions.
Custody Administrators provide necessary administrative
services for the securities accounts of these clients,
and their work involves settling trades according to
client instructions and assuring the proper and accu-
rate recording of transactions that affect these ac-
counts. The Bank strives to be competitive in this
business by having administrators who provide efficient
customer service, and who communicate frequently with
clients both to assure the accuracy of transactions and
to address any potential problems with the administra-
tion of their accounts.
Affidavit of James W. Curran, Account Mgr., Custody Administra-
tion Unit.
3
weakest performers in the unit. Keane represents that Goldman
was responsible for the fewest customer accounts, with the lowest
aggregate market value, and that Goldman's low volume resulted in
large measure from the reassignment of some of Goldman's accounts
due to client complaints. All three positions were permanently
eliminated and Goldman's duties were absorbed by the remaining
employees in the Custody Administration Unit.
II
II
DISCUSSION
DISCUSSION
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A. Summary Judgment Standard
A. Summary Judgment Standard
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We review a grant of summary judgment de novo, employ-
__ ____
ing the same criteria incumbent upon the district court in the
first instance. Pedraza v. Shell Oil Co., 942 F.2d 48, 50 (1st
_______ _____________
Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 993 (1992).
_____ ______
Summary judgment is appropriate where the record, including the
pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits, viewed in the light most favorable to the
nonmoving party, reveals no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Canal Ins. Co. v. Benner,
___ ______________ ______ __
F.2d , (1st Cir. 1992), No. 92-1360, slip op. at 5 (1st
___ ____
Cir. Nov. 24, 1992); see also Mesnick v. General Elec. Co., 950
___ ____ _______ _________________
F.2d 816, 822 (1st Cir. 1991), cert. denied, ___ U.S. ___, 112 S.
____ ______
Ct. 2965 (1992). The nonmoving party "may not rest upon the mere
allegations or denials of the . . . pleadings, but . . . must set
4
forth specific facts showing that there is a genuine issue for
trial." Fed. R. Civ. P. 56(e). See Anderson v. Liberty Lobby,
___ ________ ______________
Inc., 477 U.S. 242, 248 (1985). There is no trialworthy issue
____
unless there is enough competent evidence to enable a finding
favorable to the nonmoving party. Id. at 249 (citing First Nat'l
___ ___________
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89
_________________ ___________________
(1968)). Moreover, "[e]ven in cases where elusive concepts such
as motive or intent are at issue, summary judgment may be appro-
priate 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).
B. Age Discrimination Claims4
B. Age Discrimination Claims
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1. The Burden-Shifting Paradigm
1. The Burden-Shifting Paradigm
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A plaintiff alleging age discrimination "bears the
ultimate 'burden of proving that his years were the determinative
factor in his discharge, that is, that he would not have been
____________________
4The complaint alleged parallel claims under the ADEA and
its Massachusetts counterpart, Mass. Gen. L. ch. 151B. On
appeal, Goldman asserts for the first time that Massachusetts
applies a less onerous standard of proof to claims brought under
the Massachusetts antidiscrimination statute than this court
applies to ADEA claims, and that his Massachusetts claim there-
fore must be addressed separately. Goldman's opposition to
summary judgment did not distinguish between the federal and
state age discrimination claims, and he relied solely on federal
precedent. Consequently, the district court's analysis did not
distinguish between the state and federal age discrimination
claims. We follow suit, as "theories not raised squarely in the
district court cannot be surfaced for the first time on appeal."
McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st
_____ _________________________________
Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1939 (1992).
____ ______
See Mesnick, 950 F.2d at 829 n.11.
___ _______
5
fired but for his age.'" Mesnick, 950 F.2d at 823 (quoting
_______
Freeman v. Package Machinery Co., 865 F.2d 1331, 1335 (1st Cir.
_______ ______________________
1988)). Absent direct evidence of age discrimination, the
familiar burden-shifting framework established in McDonnell
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Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), comes into
______________ _____
play. Lawrence v. Northrop Corp., ___ F.2d ___, ___ (1st Cir.
________ _______________
1992), No. 92-1702, slip op. at 4 (1st Cir. Nov. 25, 1992);
Mesnick, 950 F.2d at 823; Medina-Munoz, 896 F.2d at 8. First,
_______ ____________
the plaintiff must make a prima facie showing of discrimination,
McDonnell Douglas, 411 U.S. at 802; Lawrence, slip op. at 4;
__________________ ________
Biggins v. Hazen Paper Co., 953 F.2d 1405, 1409 (1st Cir.), cert.
_______ _______________ ____
denied, ___ U.S. ___, 112 S. Ct. 3035 (1992) and cert. granted,
______ ____ _______
___ U.S. ___, 112 S. Ct. 2990 (1992); Mesnick, 950 F.2d at 823;
_______
that is, Goldman must demonstrate 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 qualifica-
tions. Id.; Medina-Munoz, 896 F.2d at 8. A plaintiff whose
___ ____________
employment was terminated in the course of a reduction in force
need not demonstrate that he was replaced, but may show 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); see Lawrence, slip op. at 5;
___ ________
Connell v. Bank of Boston, 924 F.2d 1169, 1173 n.5 (1st Cir.),
_______ _______________
cert. denied, ___ U.S. ___, 111 S. Ct. 2828 (1991).
_____ ______
6
"Establishment of the prima facie case . . . creates a
presumption that the employer unlawfully discriminated against
the employee," Texas Dep't of Community Affairs v. Burdine, 450
_________________________________ _______
U.S. 248, 254 (1981), and the burden of production shifts to the
defendant-employer to "articulate some legitimate, nondis-
criminatory reason" for the termination. McDonnell Douglas, 411
_________________
U.S. at 802; Lawrence, slip op. at 5; Biggins, 953 F.2d at 1409;
________ _______
Mesnick, 950 F.2d at 823. The burden of persuasion remains with
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the plaintiff-employee at all times. Lawrence, slip op. at 5;
________
Mesnick, 950 F.2d at 823 (citing Burdine, 450 U.S. at 253);
_______ _______
Medina-Munoz, 896 F.2d at 9.
____________
The presumption of unlawful age discrimination generat-
ed by the plaintiff-employee's prima facie showing dissipates,
however, provided the employer sustains its burden of production;
the plaintiff-employee must then demonstrate that the proffered
reason for the adverse employment action was simply a pretext for
age discrimination. Lawrence, slip op. at 6; Mesnick, 950 F.2d
________ _______
at 823; Connell, 924 F.2d at 1172. The plaintiff must do more
_______
than cast doubt on the employer's justification for the chal-
lenged action; there must be a sufficient showing that discrimi-
natory animus motivated the action. Lawrence, slip op. at 6-7;
________
Mesnick, 950 F.2d at 824; Villanueva v. Wellesley College, 930
_______ __________ _________________
F.2d 124, 127-28 (1st Cir.), cert. denied, ___ U.S. ___, 112 S.
____ ______
Ct. 181 (1991); 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
7
infer that the employer's decision was motivated by age animus."
Connell, 924 F.2d at 1172 n.3; see also Lawrence, slip op. at 6-
_______ ___ ____ ________
7, Mesnick, 950 F.2d at 825; Villanueva, 930 F.2d at 128.
_______ __________
Under First Circuit caselaw, the plaintiff-employee
must adduce minimally sufficient evidence of pretext and discrim-
___
inatory animus. Lawrence, slip op. at 6-7 (citing Mesnick, 950
________ _______
F.2d at 825; Villanueva, 930 F.2d at 127; Connell, 924 F.2d at
__________ _______
1172; Medina-Munoz, 896 F.2d at 9; Olivera v. Nestle Puerto Rico,
____________ _______ ___________________
Inc., 922 F.2d 43, 48 (1st Cir. 1990)). A showing that the
____
employer's justification was not the actual motive may be enough
if the facts and circumstances raise a reasonable inference of
age discrimination. Connell, 924 F.2d at 1175. Nevertheless,
_______
the plaintiff-employee cannot avert summary judgment if the
record is devoid of direct and circumstantial evidence of dis-
___
criminatory animus on the part of the employer. Lawrence, slip
________
op. at 6-7 n.1.5
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5Appellant argues that our cases place a more onerous burden
on an ADEA plaintiff than that envisioned by the Supreme Court in
McDonnell Douglas and Burdine. Accord Connell, 924 F.2d at 1183
__________________ _______ ______ _______
(Bownes, J., dissenting) (suggesting that Burdine permits a
_______
plaintiff to prove employment discrimination "either by direct
______
evidence of discrimination or by successfully rebutting the
__
employer's articulated reasons."). We do not agree. Fed. R.
Civ. P. 56 requires the nonmoving party to demonstrate the
existence of a dispute of material fact; in order to do so,
Goldman "must raise an inference of discriminatory motive under-
lying the pretextual explanation." Villanueva, 930 F.2d at 128
__________
(citing Medina-Munoz, 896 F.2d at 9). It is not the province of
____________
the courts to sit as "super personnel departments, assessing the
merits or even the rationality of employers' nondis-
criminatory business decisions." Mesnick, 950 F.2d at 825. "The
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'ADEA does not stop a company from discharging an employee for
any reason (fair or unfair) or for no reason, so long as the
decision to fire does not stem from the person's age.'" Id.
___
(quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1341
_______ _____________________
8
The Bank does not challenge the district court ruling
that Goldman made out a prima facie age discrimination claim.
Nor does Goldman challenge the finding that the Bank met its
burden at the second stage of the McDonnell Douglas burden-
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shifting analysis by articulating a nondiscriminatory motive for
____________
Goldman's dismissal; namely, that economic considerations neces-
sitated a reduction in force and Goldman was selected for termi-
nation because he was "the weakest performer and least qualified
employee" in his unit. At the third and final stage of the
McDonnell Douglas analysis, the district court ruled that Goldman
_________________
had failed to present sufficient evidence either to rebut the
Bank's proffered justification for Goldman's dismissal or to
support an inference of discriminatory animus. The Bank accord-
ingly won summary judgment on the state and federal age discrimi-
nation claims. Contending that the district court weighed the
competing evidence, rather than viewing it in the light most
favorable to him, Goldman maintains that there is sufficient
record evidence of pretext and age animus to clear the summary
judgment hurdle.
2. Evidence of Pretext
2. Evidence of Pretext
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"In assessing pretext, [our] 'focus must be on the
perception of the decisionmaker,' that is, whether the employer
________
____________________
(1st Cir. 1988)). Since an employer's nondiscriminatory motiva-
tions for adverse employment decisions are irrelevant in an age
discrimination case, a "mere showing that the employer's articu-
lated reason may shield another (possibly nondiscriminatory)
reason does not create a dispute of material fact" sufficient to
withstand summary judgment. Villanueva, 930 F.2d at 128.
__________
9
believed its stated reason to be credible." Mesnick, 950 F.2d at
_______
824 (quoting Gray v. New England Tel. & Tel. Co., 792 F.2d 251,
____ ____________________________
256 (1st Cir. 1986) (emphasis added)). Goldman does not dispute
that the Bank effected the reduction in force in order to reduce
costs. Instead, he argues that he produced enough evidence to
rebut the Bank's contention that he was the weakest and least
qualified employee in his unit. Goldman established that he had
received merit salary increases on a regular basis throughout his
tenure with the Bank, received commendations and accolades from
Bank clients over the years, and received no warnings relating to
his work performance. Although Goldman received mixed perfor-
mance evaluations, he disputed their accuracy and fairness.
Goldman presented substantial evidence that the Bank
did not consider his work performance unsatisfactory in absolute
terms. But the Bank consistently has maintained that Goldman was
discharged strictly because he was the least qualified employee
_____ _________
in the Custody Administration Unit. It submitted comparative
evidence as to the account workloads of all custody administra-
tors in Goldman's unit. There is no dispute that Goldman, among
all custody administrators, was responsible for the fewest
accounts, having the lowest aggregate market value. In these
circumstances, refutation of the proffered justification for
Goldman's discharge required evidence from which the trier of
fact reasonably could conclude that Goldman's abilities and
qualifications were equal or superior to employees who were
retained. As Goldman made no such evidentiary showing, whatever
10
slight shadow of doubt may have been cast upon the proffered
justification for his dismissal is too faint to raise the spectre
of pretext.
11
3. Evidence of Age Animus
3. Evidence of Age Animus
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Evidence of age animus "need not be of the 'smoking
gun' variety," but the totality of the circumstances must permit
a reasonable inference that the employer's justification for the
challenged action was a pretext for age discrimination. Connell,
_______
924 F.2d at 1175 (citing Burdine, 450 U.S. at 256). Goldman
_______
insists that several pieces of evidence, considered collectively
or individually, support an inference of discriminatory animus on
the part of the Bank.
First, Goldman claims that discriminatory animus is infer-
able from the affidavits of eight former Bank employees, each
stating that the affiant was the eldest, or one of the eldest,
employees in a particular unit at the Bank and was performing
adequately when dismissed pursuant to the reduction in force.
According to Goldman, the fact that several older, long-term
employees with satisfactory performance records were terminated
could lead a reasonable factfinder to conclude that Goldman would
not have been terminated but for his age. On the contrary, as
the district court observed, anecdotal evidence of this sort does
little more than "corroborate what was undisputed: that members
of the protected class were terminated as part of the [reduction
in force]." Evidence that eight employees, among the 119 select-
ed for dismissal, were among the eldest in their respective units
does not give rise to a reasonable inference that older employees
were disproportionately affected by the reduction in force, much
__________________
less that age discrimination motivated their dismissal.
12
Second, Goldman theorizes that the termination of
older, more costly, employees would optimize the cost reductions
achieved through the reduction in force. The implication,
Goldman suggests, is that the Bank was biased against older
employees in effecting the workforce reduction.6 Yet Goldman
submitted no evidence either that older employees were more
costly to the Bank than younger employees or that older employees
were disproportionately affected by the reduction in force. See
___
Mesnick, 950 F.2d at 822 (evidence presented by party opposing
_______
summary judgment "'cannot be conjectural or problematic'")
(quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181
____ ___________________________
(1st Cir. 1989)).
Third, Goldman contends that the Bank's introduction of
a new retirement plan raised an inference of discriminatory
animus. In 1989 the Bank replaced its pension plan with a new
"Cash Balance" plan. The Bank informed its employees, at the
time, that its objective was "to make the Bank's retirement
benefits a visible, attractive benefit to our entire employee
population regardless of age" and to "reward employees based
____________________
6Goldman notes that 41% of the 119 employees terminated in
May 1989 were over forty years of age, but that among the 21 ter-
minated employees subsequently rehired, only 5, or 24%, were over
forty. Statistical evidence that older employees were terminated
at a disproportionate rate may provide strong evidence of age
discrimination. See Mesnick, 950 F.2d at 824; Connell, 924 F.2d
___ _______ _______
at 1177. However, the present record includes no evidence as to
the age composition of the workforce subject to termination, or
of the pool of applicants seeking reemployment, against which to
compare the data Goldman cites. In fact, at oral argument
Goldman disclaimed any statistical argument based on these
incomplete data.
13
upon individual performance." Under the new plan, the Bank
opened a "Cash Balance" account for each employee and credited
the account annually with a percentage of the employee's sala-
ry.7 After five years of service, all funds in the Cash Balance
account may be withdrawn by employees who are no longer employed
by the Bank. Goldman argues that the new plan favors younger
employees and raises an inference of age animus because it
requires the Bank to deposit a decreasing percentage of salary to
the Cash Balance account as the employee reaches the upper
service brackets and because its stated purpose is to make the
plan more attractive to the 85% of Bank employees for whom the
former pension plan represented "a benefit for the distant
future."
Goldman's argument is deficient, however, in that there
is no evidentiary foundation for the premise that the new plan
disadvantages older employees. The fact that the Bank contrib-
utes decreasing percentages of salary to the Cash Balance account
after the employee reaches the thirty-five year service threshold
____________________
7The percentage of salary credited annually to the Cash
Balance account depends on the number of years of service with
the Bank:
Percentage of Salary Credited
Years of Service to Cash Balance Account
________________ ______________________________
0 - 1 0%
1 - 2 3.25%
3 - 4 4%
5 - 9 5%
10 - 14 6%
15 - 19 8%
20 - 34 11%
35 - 39 6%
40+ 0%
14
is insufficient to create an inference of age animus absent
evidence that the resulting retirement benefit would be lower
than the benefit the employee would have received under the
former plan. Moreover, Goldman's argument ignores the safeguards
put in place by the Bank to ensure that employees fifty-five or
older with ten years of service, or employees at any age with
twenty years of service, would experience no reduction in bene-
fits. When an employee in either of these service categories
retires or leaves the Bank, benefits are calculated under both
the old pension plan and the new Cash Balance plan; the employee
is entitled to receive the greater benefit. Thus, these employ-
ees cannot be disadvantaged by the introduction of the new
plan.8
These safeguards do not necessarily cover all employees
in the protected class, however, as those between forty and
fifty-five with less than twenty years of service and those
fifty-five or older with less than ten years of service at the
time the new plan became effective fall outside the scope of the
safeguard provision. Rather, at retirement or termination, these
employees receive benefits under both plans. The retirement
benefit under the former plan is based upon the length of service
as at December 31, 1988; under the new plan the benefit consists
of the funds accumulated in the Cash Balance account after
____________________
8Goldman argues that the safeguards would have been unneces-
sary if the new plan did not deprive these employees of benefits
to which they would have been entitled under the former plan.
Clearly, Goldman's argument entirely ignores the safeguards.
15
December 31, 1988. Goldman has adduced no evidence, nor has he
argued, that benefits calculated under these provisions are lower
than those obtainable under the former pension plan for members
of the protected class. Accordingly, no reasonable inference of
age bias can be drawn on the present record.
Finally, Goldman maintains that the Bank's decision to
disband the "Quarter Century Club," a Bank-sponsored social
organization for employees with twenty-five years or more of
service,9 uniquely and adversely affected older employees and
therefore is indicative of age bias. Goldman does not dispute
that the Bank stopped funding the Quarter Century Club as part of
its program to reduce discretionary costs. There is no direct
evidence that considerations of age, as distinguished from
neutral cost-saving considerations, entered into the decision to
disband the organization, and the bare fact that the Bank stopped
funding the Quarter Century Club to reduce costs clearly is
insufficient to support a reasonable inference that Goldman's
dismissal was motivated by age discrimination.
Even viewed collectively, see Mesnick, 950 F.2d at 824
___ _______
(citing Olivera, 922 F.2d at 50) (We do not "look at evidence of
_______
discrimination . . . in splendid isolation, but as part of an
aggregate package of proof offered by the plaintiff."), the
evidence was insufficient to enable a reasonable factfinder to
____________________
9The record on appeal contains no evidence as to the bene-
fits associated with Quarter Century Club membership. At oral
argument, counsel allowed as how members received small gifts in
recognition of their loyal service and were honored at an annual
dinner.
16
infer that age discrimination motivated the Bank's decision to
dismiss Goldman. Stripped of its speculative chaff, at best the
record reveals that a small number of those discharged were among
the older employees in their respective units, that the Bank
implemented a new pension plan which has in no measure been shown
to have been disadvantageous to older employees, and that the
Bank stopped funding the Quarter Century Club. The gap between
this evidence and an inference of age discrimination could only
be bridged by impermissible inference. As Goldman established
neither pretext nor age animus, the district court correctly
granted summary judgment on the age discrimination claims.
C. Breach of Lifetime Employment Contract
C. Breach of Lifetime Employment Contract
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Goldman maintains that Lee Beaulieu, a personnel
officer, offered him lifetime employment by representing that the
Bank had never laid off employees and that Goldman would have a
job for life unless he committed a criminal act against the
Bank.10 Even though it is far from clear that the sort of
representations made by Beaulieu import an oral offer of lifetime
employment, for present purposes we assume as much arguendo.
________
Under Massachusetts law, a lifetime employment contract
cannot be found absent evidence that it was made or ratified by
an officer or agent with actual or apparent authority to bind the
employer to a lifetime contract. See Rydman v. Dennison Mfg.
___ ______ ______________
Co., 373 Mass. 855, 366 N.E.2d 763 (1977); Porshin v. Snider, 349
___ _______ ______
____________________
10Goldman had no written employment contract with the Bank.
17
Mass. 653, 654, 212 N.E.2d 216, 217 (1965); Thalin v. Friden
______ ______
Calculating Mach. Co., 338 Mass. 67, 70, 153 N.E.2d 658, 660
______________________
(1958); Simonelli v. Boston Hous. Auth., 334 Mass. 438, 440-41,
_________ __________________
137 N.E.2d 670, 672-73 (1956). As there is no evidence that the
Bank invested Beaulieu with actual authority to extend a binding
offer of lifetime employment to anyone, we need only determine
whether Goldman has demonstrated a genuine factual dispute
material to the issue of apparent authority.
"Apparent or ostensible authority 'results from conduct
by the principal which causes a third person reasonably to
__ ___ _________
believe that a particular person . . . has authority to enter
into negotiations or to make representations as his agent.'"
Hudson v. Massachusetts Property Ins. Underwriting Ass'n, 386
______ ________________________________________________
Mass. 450, 457, 436 N.E.2d 155, 159 (1982) (quoting W. A. Seavey,
Agency 8D at p. 13 (1964)) (emphasis added). "It is a 'fundam-
______
ental rule that apparent authority cannot be established by the
putative agent's own words or conduct, but only by the princi-
____ __ ___ _______
pal.'" Sheinkopf v. Stone, 927 F.2d 1259, 1269 (1st Cir. 1991)
___ _________ _____
(quoting Sheldon v. First Fed. Savings & Loan Ass'n, 566 F.2d
_______ _________________________________
805, 808 (1st Cir. 1977)) (emphasis added). We therefore examine
the record for conduct on the part of the Bank that could have
prompted Goldman reasonably to believe that Beaulieu was autho-
rized to hire him as a lifetime Bank employee.
A person appointed to a position with generally recog-
nized functions may be found to possess apparent authority to
perform the duties ordinarily entrusted to one occupying that
18
position. Restatement (Second) of Agency 27 cmt. a (1958).
_______________________________
Clearly, Beaulieu, a personnel officer, had either actual or
apparent authority to hire Bank employees. Ordinary authority to
hire, however, is insufficient to bind the employer to a lifetime
employment contract. Boleman v. Congdon and Carpenter Co., 638
_______ _________________________
F.2d 2, 4 (1st Cir.), cert. denied, 454 U.S. 824 (1981) (applying
____ ______
Massachusetts law). "[R]arely . . . [do] circumstances exist
which would give rise to apparent authority, of even a principal
corporate officer, to employ another for life." Thalin, 338
______
Mass. at 70, 153 N.E.2d at 660; see Annotation, Power of Corpo-
___ ________________
rate Officer or Agent to Hire Employees for Life, 28 A.L.R.2d
___________________________________________________
929, 933 (stating that "[i]n the absence of express authority, it
has generally been held or recognized that corporate officers or
agents do not have the power or authority to hire employees for
life").
Goldman suggests that apparent authority should be
inferred because his only contact at the time he was hired was
with Beaulieu and he had no way of knowing that lifetime employ-
ment contracts with the Bank were extraordinary. As the great
weight of authority makes clear, however, a corporate personnel
officer's general hiring authority does not suffice to establish
apparent authority to bind the employer to a lifetime employment
contract, irrespective of any awareness on the part of the
employee that lifetime employment contracts with the employer
were extraordinary. See Rydman, 373 Mass. at 855, 366 N.E.2d at
___ ______
764 (suggesting that even explicit assurances by corporate
19
officers or agents do not bind a corporate employer to employment
contracts of extraordinary duration unless the contract was
either made or ratified by an officer with actual or apparent
authority to so bind the corporation); Porshin, 349 Mass. at 654,
_______
212 N.E.2d at 217 (finding general manager's authority to hire
and fire insufficient to "clothe him with ostensible authority to
make a contract for permanent employment"); Simonelli, 334 Mass.
_________
at 440-41, 137 N.E.2d at 672 (finding assurances of lifetime
employment made by personnel manager and project director insuf-
ficient to create lifetime employment contract absent ratifica-
tion by the employer); Braden v. Trustees of Phillips Academy,
______ _____________________________
321 Mass. 53, 71 N.E.2d 765 (1947) (holding that comptroller had
no authority to hire assistant comptroller for life absent
conduct by employer that could have caused plaintiff-employee
reasonably to believe the comptroller was authorized to offer
lifetime employment). Holding Beaulieu out as its agent for
general hiring purposes did not constitute conduct warranting an
objectively reasonable belief that Beaulieu had Bank authority
to hire anyone for life.
Apparent authority to offer a binding lifetime employ-
ment contract may be found in the rare circumstance where it is
customary for a particular officer or agent to make such a
lifetime contract. 28 A.L.R. 2d at 938. See Braden, 321 Mass. at
___ ______
55, 71 N.E.2d at 766. The Bank submitted competent affidavits
attesting that Beaulieu had no actual authority to bind the Bank
to a lifetime employment contract and that no employee has a
__ ________
20
lifetime contract with the Bank. Goldman suggests, however, that
an inference that lifetime employment contracts were commonplace
at the Bank can be drawn from the assurances of Beaulieu and
several supervisors that he had a job for life and that no
employee had ever been laid off.
"Lifetime contracts are extraordinary in their nature
and strong proof is required to establish their due formation."
Gregory v. Raytheon Serv. Co., 27 Mass. App. Ct. 1170, 1171, 540
_______ __________________
N.E.2d 694, 695 (1989); accord Boleman, 638 F.2d at 4 (finding a
______ _______
putative lifetime employment contract "well within the category
of extraordinary agreements requiring the strongest proof of
authority by the one making it to bind a corporate employer").
Although widespread knowledge that the Bank had never laid off an
employee except for criminal conduct might prompt the legitimate
belief that employment at the Bank was relatively secure, it
cannot be considered competent proof, let alone "strong proof,"
Gregory, 27 Mass. App. Ct. at 1171, 540 N.E.2d at 695, that any
_______
Bank employee had a lifetime employment contract. Absent evi-
dence of any lifetime employment contract with the Bank at any
level under any circumstances we must conclude that a rational
factfinder could not reasonably find that lifetime employment
contracts with the Bank were customary.
Although Goldman failed to generate a trialworthy issue
as to whether Beaulieu possessed apparent authority to offer
lifetime Bank employment, we must still consider whether any
officer, with authority to bind the Bank, subsequently ratified
____
21
Beaulieu's unauthorized offer of lifetime employment. See
___
Restatement (Second) of Agency 82 (1958); 28 A.L.R. at 938-40;
______________________________
Rydman, 373 Mass. at 855, 366 N.E.2d at 764; Simonelli, 334 Mass.
______ _________
at 441, 137 N.E.2d at 672.
Goldman attests that the concept of lifetime employment
was reinforced by various supervisors throughout his tenure at
the Bank. Ratification is not established, however, unless the
subsequent assurances were made by one with actual or apparent
authority to bind the Bank to a lifetime employment contract.
See Rydman, 373 Mass. at 855, 366 N.E.2d at 764; Restatement
___ ______ ___________
(Second) of Agency 93 cmt. c (1958). As the record contains no
__________________
evidence that any supervisor who represented that Goldman was
employed for life had actual or apparent authority to determine
the terms of Goldman's employment contract, much less bind the
Bank to a lifetime contract, no trialworthy issue was raised
relating to the ratification claim.11
As Goldman generated no trialworthy issue relating to
the lifetime employment contract claim, summary judgment was
proper.
Affirmed.
Affirmed.
________
____________________
11The Bank's pre-1989 practice of not discharging employees
except for criminal conduct is entirely consistent with universal
at-will employment and does not constitute affirmance of a
lifetime contract. See Restatement (Second) of Agency 93
___ ________________________________
(1953) ("affirmance can be established by any conduct of the
purported principal manifesting that he consents to be a party to
the transaction, or by conduct justifiable only if there is
ratification").
22