Woodman v. Haemonetics Corp.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1727

FRANK B. WOODMAN,

Plaintiff, Appellant,

v.

HAEMONETICS CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Stuart DeBard for appellant.

Jeffrey M. Hahn, with whom Foley, Hoag & Eliot was on brief for

appellee.

April 14, 1995

CYR, Circuit Judge. Plaintiff Frank B. Woodman appeals
CYR, Circuit Judge.

from a district court order granting summary judgment for

Haemonetics Corporation ("HC"), Woodman's former employer, and

dismissing his claim for wrongful discharge under the Age Dis-

crimination in Employment Act ("ADEA"). We vacate the district

court judgment and remand for factfinding.

I
I

BACKGROUND1
BACKGROUND

Woodman was hired by HC in January 1981 at age forty-

eight. For ten years he worked as a machinist, primarily in HC's

machine shop at Holbrook, Massachusetts. Throughout his employ-

ment as a machinist he consistently earned favorable performance

reviews. He was promoted twice, receiving commensurate wage

increases from $5.28 per hour as a Machinist Trainee, to $11.75

per hour as a Machinist B.

In December 1990, at age fifty-seven, Woodman was

transferred to the "bowl department" in Braintree, Massachusetts,

where HC manufactures disposable components for medical equipment

designed to facilitate the collection, separation and cleansing

of blood and blood constituents. The medical equipment manufac-

tured in the bowl department is fabricated under sterile condi-

tions in a controlled-access area known as the "clean room."

1The essential facts are recited in the light most favorable
to appellant Woodman, the party resisting summary judgment.
Velez-Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874 (1st Cir.

1993).

2

On January 24, 1991, Woodman received a flawless

performance report from his bowl department supervisor, Mary

LeBlanc. Not only did he earn the highest possible rating in all

six review categories, but LeBlanc commented: "[Y]our work since

joining bowls has been exceptional. You have made a positive

contribution in work and in adapting to change."

Thereafter, in late March 1991, Mary LeBlanc was

succeeded by Rick Lucas as Woodman's supervisor in the bowl

department. Lucas began training Woodman in two non-assembly

line tasks "material handling" (i.e., retrieving raw materials

for use in the clean room) and "bowl packing" (i.e., packaging

the finished product). The record discloses but one performance

review of Woodman by Lucas, in late July 1991. Though less

favorable than the LeBlanc report, the Lucas report indicated

that Woodman was performing at an acceptable level. Woodman was

rated "exceptional" in terms of dependability and "above average"

in terms of both customer/supplier relations and quality of work.

In no category did Woodman receive a rating lower than "average."

Lucas added, "Frank is a highly organized, consistent performer."

John Barr became Vice President of Operations for HC in

mid-September 1991. Shortly thereafter, Barr directed all HC

managers to reevaluate their employees, with particular emphasis

on flexibility (i.e., susceptibility to cross-training and to

multiple production-line responsibilities), reliability, partici-

pation (i.e., the capacity to provide suggestions and contribute

to improved operational efficiencies) and quality and quantity of

3

work product. The record on appeal does not reflect a perfor-

mance rating on Woodman under Vice President Barr's revised

performance review procedure in the fall of 1991. The record is

clear, however, that many HC employees did receive performance

ratings considered unacceptable by Barr. The record evidence

also discloses that Barr determined that HC could terminate its

"C performers" without jeopardizing its production, while dramat-

ically reducing labor costs.

Sometime in the fall of 1991, Mary LeBlanc resumed her

supervisory role over Woodman in the bowl department. Around

this same time, LeBlanc was privy to at least one discussion,

among members of HC's upper management, in which future employee

terminations were discussed. Following such a meeting, and in

the presence of Woodman, LeBlanc referenced the management

discussion relating to future terminations: "These damn people

they want younger people here. They will be the one[s] that

will be successful here." Woodman's affidavit attests that

LeBlanc made similar statements on several occasions.

During the time that HC's management was deciding which

employees were to be terminated, Mary LeBlanc submitted a memo-

randum, dated November 15, 1991, describing Woodman's work

performance as having been unsatisfactory throughout the period

"since July 1991." The November 15 memorandum made no reference

to the performance review by Lucas in late July 1991. LeBlanc

described Woodman as an "unmotivated worker" who "would prefer to

sit in the Bowl Prep area and read for extended periods of time

4

up to several hours." She noted further that Woodman was slow,

routinely requiring a minimum of thirty minutes to dress for the

sterile conditions in the clean room, whereas the requisite

procedures should take no longer than ten minutes. LeBlanc

reported that Woodman possessed limited skills: "Frank cannot

perform 50% of line operations to standard requirement. He can

only be assigned 2 off line jobs in the clean room, where his

performance will not affect production quantities." Furthermore,

she stated, despite Woodman's training on most assembly-line

operations, his inability to perform those operations in a

satisfactory manner had led to the abandonment of further train-

ing efforts. LeBlanc concluded: "I recommend Frank be relieved

from his current duties."

Five days later, in a reduction in force ("RIF"),

thirty-three HC employees were terminated; twelve, including

Woodman, were bowl department employees. HC presented statisti-

cal evidence demonstrating that the ratio of older to younger

employees in the bowl department increased slightly during the

reduction in force; viz., 41% over age 40 before the RIF; 44%

after the RIF.2

Woodman received written notice of his immediate

termination on November 20, which advised that HC had decided

that it could "eliminate a group of its poorest performers and

2However, since the company-wide data neither support nor

undermine the contention that the RIF had no discriminatory
impact, additional information would be needed to draw any
pertinent conclusion from these data.

5

still meet the production plan." Later, HC reported to the

Massachusetts Department of Employment Training that Woodman was

discharged as part of a reduction in force involving the company-

's "poorest performers." On March 2, 1993, Woodman initiated the

present suit in federal district court, alleging age discrimina-

tion in violation of the ADEA.

In due course, the statement attributed to Mary LeBlanc

by the Woodman affidavit submitted in opposition to HC's motion

for summary judgment was excluded by the district court as

inadmissible "totem-pole" (i.e., multiple) hearsay, "unavailing

on a motion for summary judgment." The court went on to conclude

that though Woodman had made out a prima facie case of age dis-

crimination, HC had rebutted the resulting presumption of unlaw-

ful age discrimination by producing enough evidence, if credited,

to enable a rational trier of fact to find a nondiscriminatory

basis for Woodman's dismissal; viz., poor work performance.

Ultimately, the district court awarded summary judgment to HC on

the ground that Woodman had not proffered competent evidence

sufficient to generate a trialworthy issue as to whether imper-

missible age-based discrimination constituted a determinative

factor in the dismissal. Woodman appealed.

II
II

STANDARD OF REVIEW
STANDARD OF REVIEW

We examine a grant of summary judgment de novo, viewing

the evidence, and all reasonable inferences therefrom, in the

light most favorable to the party resisting summary judgment.

6

O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.), cert. denied,

114 S. Ct. 634 (1993). Summary judgment is inappropriate unless

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the 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); Henley Drilling Co. v. McGee, 36 F.3d 143,

144 (1st Cir. 1994). No credibility assessment may be resolved

in favor of the party seeking summary judgment. Velez-Gomez v.

SMA Life Assurance Co., 8 F.3d 873, 877 (1st Cir. 1993).

III
III

DISCUSSION
DISCUSSION

A. The Burden-Shifting Paradigm
A. The Burden-Shifting Paradigm

The burden-shifting framework announced in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) ["McDonnell

Douglas"], and imported for use in ADEA cases, see Keisling v.

SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994);

LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993),

cert. denied, 114 S. Ct. 1398 (1994), allocates burdens of

production and orders the presentation of evidence so as "pro-

gressively to sharpen the inquiry into the elusive factual

question of intentional discrimination." Texas Dept. of Communi-

ty Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981); see St.

Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2746 (1993).

At the first stage in the McDonnell Douglas matrix,

Woodman was required to make a prima facie showing that he (1)

7

was at least forty years old, (2) met HC's legitimate job perfor-

mance expectations, (3) experienced adverse employment action,

and (4) since the challenged action was part of a reduction in

force, that HC did not treat age neutrally or it retained younger

persons in the same position. Goldman v. First Nat'l Bank of

Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); LeBlanc, 6 F.3d at

842. The required prima facie showing is not especially burden-

some, see Greenberg v. Union Camp Corp., No. 94-1312, slip op. at

4 (1st Cir. Feb. 17, 1995); Smith v. Stratus Computer, Inc., 40

F.3d 11, 15 n.4 (1st Cir. 1994), and once established, gives rise

to a rebuttable presumption that the employer engaged in inten-

tional age-based discrimination. Goldman, 985 F.2d at 1117

(citing Burdine, 450 U.S. at 254). As Justice Scalia stated in

Hicks, the rebuttable presumption ultimately results in "a

required conclusion [viz., unlawful discrimination] in the

absence of explanation." Hicks, 113 S. Ct. at 2747 (emphasis

added).

At the second stage in the burden-shifting praxis, the

defendant-employer must produce sufficient competent evidence,

"taken as true," to permit a rational factfinder to conclude that

there was a "nondiscriminatory reason," id. at 2748 (emphasis in

original), for the challenged employment action, thereby displac-

ing the legal presumption of intentional discrimination generated

by the plaintiff-employee's prima facie case. Goldman, 985 F.2d

at 1117. Since neither credibility issues nor other factual

matters in genuine dispute are to be resolved under it, "the

8

McDonnell Douglas framework . . . is no longer relevant" once the

defendant-employer has met its burden of production at the second

stage. Hicks, 113 S. Ct. at 2749. The attendant legal presump-

tion of intentional discrimination having served its purpose

that of "forcing the defendant to come forward with some re-

sponse" it "drops out of the picture." Id.

At that point, the defendant-employer's motion for

summary judgment cannot succeed if the plaintiff-employee, with

whom the ultimate burden of persuasion remains throughout, Vega

v. Kodak Caribbean, Ltd., 3 F.3d 476, 478 (1st Cir. 1993), has

proffered sufficient admissible evidence, if believed, to prove

by a preponderance of the evidence each essential element in a

prima facie case and that the employer's justification for the

challenged employment action was merely a pretext for impermissi-

ble age discrimination. Id. at 479. The plaintiff-employee may

rely upon the same evidence to establish both pretext and dis-

crimination, provided it is adequate to enable a rational fact-

finder reasonably to infer that intentional age-based discrimina-

tion was a determinative factor in the adverse employment action.

Goldman, 985 F.2d at 1117-18.

Where the elements of a sufficient prima facie case

combine with the factfinder's belief that the ostensible basis

for dismissing the employee was pretextual, "particularly if . .

. accompanied by a suspicion of mendacity," the factfinder is

permitted to infer the intentional age-based discrimination

required to enable the plaintiff-employee to prevail on the

9

merits. Hicks, 113 S. Ct. at 2749 ("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.") (emphasis added); Woods v.

Friction Materials, Inc., 30 F.3d 255, 260 n.3 (1st Cir. 1994).

We conclude that Woodman made out just such a case in the dis-

trict court, thereby precluding summary judgment for HC.

B. Woodman's Prima Facie Case
B. Woodman's Prima Facie Case

The district court correctly concluded that Woodman had

established a prima facie case of impermissible age-based dis-

crimination in employment. At age fifty-seven, Woodman was

discharged as part of a reduction in force, while younger persons

were retained in the bowl department. See Goldman, 985 F.2d at

1117. As the district court noted, the only substantial question

was whether Woodman had met the employer's legitimate job-perfor-

mance expectations. Woodman cleared this hurdle with his proffer

of substantial wage increases and ten years of positive perfor-

mance reviews, blemished by but one negative performance evalua-

tion five days prior to the reduction in force. See, e.g.,

Woods, 30 F.3d at 261 (history of largely favorable performance

reviews and extensive experience in industry adequate to generate

at least a genuine issue as to plaintiff-employee's ability to

meet legitimate job expectations); Keisling, 19 F.3d at 760

(similar). It then became incumbent upon HC to rebut the result-

10

ing legal presumption that the determining factor in its decision

to discharge Woodman was impermissible age-based discrimination.

11

C. HC's Rebuttal
C. HC's Rebuttal

At the second stage in the McDonnell Douglas analysis,

the district court concluded again correctly that HC had

rebutted the legal presumption of intentional age discrimination

with evidence relating to Woodman's work performance since

joining the bowl department. See Hicks, 113 S. Ct. at 2748 ("By

producing evidence (whether ultimately persuasive or not) of non-

discriminatory reasons, [defendants] sustained their burden of

production . . . ."). Crediting the competent evidence adduced

by HC, see id., Woodman's performance in the machine shop may

have been very good, but he never mastered the tasks required in

the bowl department. Thus, the presumption of unlawful age

discrimination vanished from the case. Id. at 2749; Vega, 3 F.3d

at 479.

In order to avoid summary judgment at that point it was

essential that Woodman proffer sufficient competent evidence to

generate a trialworthy issue on the ultimate question whether

intentional age-based discrimination was a determinative factor

in his dismissal. Id.

First, Woodman attacked the final performance evalua-

tion by Mary LeBlanc on November 15, 1991 five days before the

reduction in force by contrasting the laudatory performance

review of January 24, 1991, with the final review less than

nine months later in which LeBlanc's assessment plummeted from

high praise to a recommendation that Woodman be relieved of his

current duties. The Woodman affidavit itself attested to facts

12

directly contradicting several key assertions made by LeBlanc in

her final work performance evaluation. He also tendered state-

ments from a former supervisor in the machine shop and a former

group leader in the bowl department, attesting to the high

quality of his work. Second, and most importantly, the Woodman

affidavit asserted that Mary LeBlanc had stated in his presence,

following a meeting with upper management shortly before HC

implemented its reduction in force: "These damn people they

want younger people here. They will be the one[s] that will be

successful here."

Under the summary judgment analysis required once the

McDonnell Douglas framework dropped out of the picture, see

Hicks, 113 S. Ct. at 2749, the district court was required to

consider whether Woodman presented sufficient competent, i.e.,

admissible, evidence, see Murphy v. Timberlane Regional Sch.

Dist., 22 F.3d 1186, 1196 (1st Cir.) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied, 115 S. Ct.

484 (1994), to warrant a trial on the ultimate question whether

unlawful age-based discrimination was a determinative factor in

his dismissal by HC. It was at this juncture that the district

court excluded the linchpin in Woodman's opposition to summary

judgment the vicarious admission that Woodman attributed to

LeBlanc as inadmissible "totem-pole" hearsay.

D. Woodman's Demonstration of Pretext
D. Woodman's Demonstration of Pretext

The twofold thrust implicit in the evidentiary prof-

fers made by Woodman was that the November 15, 1991, LeBlanc

13

memorandum severely denigrating his work performance was a

pretext for unlawful age-based discrimination on the part of HC,

as indicated not only by Woodman's own work-performance evidence

but by the vicarious HC admission, through LeBlanc, that new

management disfavored older employees.

The factfinding inquiry into pretext focuses on "wheth-

er the employer believed its stated reason to be credible."

Goldman, 985 F.2d at 1118 (quoting Mesnick, 950 F.2d at 824)

(emphasis added). Thus, Woodman's evidence, including the

vicarious admission made through LeBlanc if credited by the

factfinder would be adequate not only to permit a reasonable

inference that HC's articulated justification for Woodman's

dismissal was a mere pretext for intentional age discrimination,

but also to generate a grave "suspicion of mendacity" respecting

the highly unfavorable performance rating made in the LeBlanc

memorandum five days prior to Woodman's dismissal. See Hicks,

113 S. Ct. at 2749.3 Consequently, the putative vicarious

3The statistical evidence presented by HC, in an effort to
show that older workers as a whole were not more severely affect-

ed by the reduction in force, is clearly relevant and might
strengthen the employer's defense. See Healy v. New York Life

Ins. Co., 860 F.2d 1209, 1217 (3d Cir. 1988), cert. denied, 490

U.S. 1098 (1989) (disparate treatment claim); see also Connecti-

cut v. Teal, 457 U.S. 440, 454 (1982) ("[A] nondiscriminatory

'bottom line' and an employer's good-faith efforts to achieve a
nondiscriminatory work force, might in some cases assist an
employer in rebutting the inference that particular action had
been intentionally discriminatory."). But by itself, rarely will
an employer's statistical evidence relating to company-wide
workforce composition provide a conclusive defense against a
disparate treatment discrimination claim at summary judgment
where the employee has established a prima facie case and pretext
accompanied by a suspicion of mendacity. See Healy, 860 F.2d at

1218 (expressing skepticism concerning conclusiveness of employe-

14

admission by HC, through LeBlanc, is crucial to our de novo

determination whether HC was entitled to summary judgment as a

matter of law. See Goldman, 985 F.2d at 1116.

(i) The Vicarious Admission
(i) The Vicarious Admission

On appeal, HC argues that the excluded statement does

not come within Evidence Rule 801(d)(2)(D) because LeBlanc was

only a "first-line" supervisor, with no authority to make termi-

nation decisions.4 However that may be, Rule 801(d)(2)(D) does

not contemplate as HC seems to suppose that the statement

be shown to have been made by the employee at the instance of her

employer, compare Fed. R. Evid. 801(d)(2)(C) with Fed. R. Evid.

801(d)(2)(D), but only that the declarant's statement concern

matters within the scope of her agency or employment. Fed. R.

Evid. 801(d)(2)(D). See, e.g., Union Mut. Life Ins. Co. v.

r's uncontested data showing no change in workforce composition,
both department-wide and company-wide, after reduction in force);
see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978)

("A racially balanced work force cannot immunize an employer from
liability for specific acts of discrimination.") (disparate
treatment claim); Teal, 457 U.S. at 455 ("Congress never intended

to give an employer license to discriminate against some employ-
ees . . . merely because he favorably treats other members of the
employees' group.") (disparate impact case).

4Rule 801(d)(2)(D) states that

[a] statement is not hearsay if . . . [the]
statement is offered against a party and is
. . . . a statement by the party's agent or
servant concerning a matter within the scope

of the agency or employment, made during the
existence of the relationship.

Fed. R. Evid. 801(d)(2)(D) (emphasis added).

15

Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986); Hoptowit v. Ray,

682 F.2d 1237, 1262 (9th Cir. 1982).

The record reflects that LeBlanc was acting within the

scope of her employment in (i) attending the HC management

meeting, (ii) assessing the performance of bowl department

employees under her supervision (including Woodman), and (iii) in

recommending that Woodman be relieved from his duties. Thus, the

circumstantial evidence proffered in the Woodman affidavit

provided a plainly sufficient foundation, see Fed. R. Evid.

103(a)(2), for finding both that LeBlanc was directly involved in

the reduction in force and that the excluded statement concerned

matters within the scope of her employment. Indeed, any contrary

suggestion is belied by HC's firm reliance on LeBlanc's adverse

performance evaluation as the principal justification for its

decision to terminate Woodman. Finally, the circumstantial

evidence proffered in the Woodman affidavit attests, and the

excluded statement itself reflects, that LeBlanc purported to be

communicating to Woodman information acquired at the HC manage-

ment meeting.

We conclude that though the Woodman affidavit may

reflect that LeBlanc's description of HC management's attitude

toward older workers was predicated on more than one statement

made at the management meeting in LeBlanc's presence, her state-

ment to Woodman was not hearsay, even though offered for its

truth. See Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir.

1990) (finding no error where trial court, in ADEA action,

16

admitted into evidence the statement made by manager to sub-

ordinate that "it's a concern of some of the guys in New York

that some of our people in their sixties are going to be

replaced"); see also Brookover v. Mary Hitchcock Memorial Hosp.,

893 F.2d 411, 417-18 (1st Cir. 1990) (holding that nurses'

statements that bed restraints should have been used on patient

were made within scope of nurses' employment); Union Mut. Life

Ins. Co., 793 F.2d at 8-9 (holding that statement by lower level

accountant, charged with preparing billings relating to employer-

's leases, concerned matter within scope of accountant's employ-

ment, in circumstances where information upon which proffered

statement was based was located in file in accountant's posses-

sion within the scope of employment). Accordingly, the eviden-

tiary ruling constituted an abuse of discretion, as it was based

upon a misapplication of Rule 801(d)(2)(D) and resulted in a

denial of Woodman's right to trial on the ADEA claim. See Siegal

v. American Honda Motor Co., Inc., 921 F.2d 15, 17 (1st Cir.

1990).

IV
IV

CONCLUSION
CONCLUSION

A rational factfinder could conclude that the errone-

ously excluded non-hearsay statement attributed to Mary LeBlanc

provided cogent evidence probative not only of pretext and

impermissible age-based discrimination on the part of HC, see

Goldman, 985 F.2d at 1117-18 (plaintiff-employee may rely on same

evidence to prove both pretext and discrimination), but also of

17

the untruthfulness of the LeBlanc performance review immediately

preceding Woodman's dismissal. See Hicks, 113 S. Ct. at 2749.

We express no view whatever on these credibility issues, of

course, except to note that at summary judgment such questions

were to be resolved in favor of Woodman. See Velez-Gomez, 8 F.3d

at 877. HC was not entitled to summary judgment, given the

competent evidentiary proffer that its articulated reason for

discharging Woodman was an untruthful pretext for intentional

age-based discrimination. See Hicks, 113 S. Ct. at 2749.

Consequently, the district court judgment must be vacated and the

ADEA claim must be remanded for factfinding.

The district court judgment is vacated. The case is
The district court judgment is vacated. The case is

remanded for further proceedings consistent with this opinion.
remanded for further proceedings consistent with this opinion.

Costs are awarded to appellant.
Costs are awarded to appellant.

18