
USCA1 Opinion

	




          October 7, 1993   UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1050                                  THEODORE LEBLANC,                                Plaintiff, Appellant,                                          v.                          GREAT AMERICAN INSURANCE COMPANY,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The opinion of this  Court issued on September 29,  1993, is          amended as follows:               Page 2, line 8: add a "," after " . . . 1993)"               Page 2, section  I., line 4:   insert "of  this case"  after               "history"               Page  2, third  line  from the  bottom:   delete  ","  after          "appeal"               Page 3, line 12:  add ", 1992," after December 21               Page 4, line 13:  delete "Id;" and insert "Id.; see"                                          __               ___  ___               Page 6, line 8:   delete the sentence beginning  with, "This               conclusion . . . judgment."                          Page 9, section III., line 2: add a "," after "court"               Page  12,  footnote  2:    delete  the  last  two  sentences          beginning      with, "Lack of reference to the . . . (1986))."               Page 13, line 3:  add "the" before "plaintiff"               Page 13, line 4:  add "the" before "plaintiff"               Page 13, line 11:  add "the" before "plaintiff"               Page 13, line 13:  add "the" before "plaintiff"               Page  20, line 9-10:   delete "acting  President" and insert               "then-acting president"               Page 26, footnote 8:  delete "include" and insert "were"               Page 32, line 10:  delete the "s" from "demonstrates"                                       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                                     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                                         -4-            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            _____                                         -5-            (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                                         -6-            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).                                         -7-            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                                      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                                         -8-            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                                         -9-            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                                         -10-            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                                      DISCUSSION            A.   Summary Judgment                 ________________                      Because our  review of a grant  of summary judgment            is  de  novo, we,  like the  district  court, are  obliged to                ________                                         -11-            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.,                                         ________    ___________________                                         -12-            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                                         -13-            finding favorable to the  nonmoving party." Goldman, 985 F.2d                                                        _______            at 1116 (citing Anderson, 477 U.S. at 249).                            ________                                         -14-            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).                                           -15-                      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                                                    _______                                         -16-            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)).                                         -17-                      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.                                         -18-                      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;            ________                      __________                                         -19-            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                                         -20-            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.                                           -21-            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                                         -22-                 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.                                         -23-            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.                                         -25-                      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                                      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.                           ________   __________________                                         -37-
