               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 93-1406

                     DANIA R. KEISLING,

                    Plaintiff, Appellee,

                             v.

            SER-JOBS FOR PROGRESS, INC., ET AL.,

                  Defendants, Appellants.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF RHODE ISLAND

   [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                       

                                        

                           Before

                    Breyer, Chief Judge,
                                       
                   Boudin, Circuit Judge,
                                        
            and Pollak,* Senior District Judge.
                                              

                                        

Paul L. Foster for appellants.
             
Alicia Murphy with whom Rosemary Healey  and Edwards &amp; Angell were
                                                            
on brief for appellee. 

                                        

                       March 29, 1994
                                        

                

* Of the Eastern District of Pennsylvania, sitting by designation.

POLLAK, District Judge.  This  case involves a claim under the
                      

Age  Discrimination in  Employment  Act  ("ADEA"),  29  U.S.C.

sections  621  et seq.  (1988),  with  a pendent  claim  under
                      

sections 28-5-1 et seq. of the Rhode Island General Laws.  The
                       

plaintiff,  Dania  Keisling, claims  that  her  firing by  the

corporate defendant, SER-Jobs for Progress, Inc.  ("SER"), was

the result of unlawful  age discrimination on the part  of SER

and  individual defendants Alma  F. Green and  Lois K. Turner.

Finding  liability both  under ADEA  and under state  law, the

jury  (1) awarded  Keisling  $32,874  in compensatory  damages

against all three defendants, and (2) awarded Keisling $50,000

in exemplary  damages against  defendant Green and  $25,000 in

exemplary  damages against defendant  Turner.   Memorandum and

Order  at 1 (D.R.I. Mar.  11, 1993).   Appendix of Defendants-

Appellants  (hereinafter "A.")  121.1   SER, Green  and Turner

now appeal.  Because we conclude that the district court erred

                    

1         Rhode Island law  permits the  award of  "punitive
damages"  in  cases  of discrimination  involving  "reckless
indifference" to the plaintiff's rights.  See R.I. Gen. L.  
                                             
28-5-29.1.   Keisling sought an additional  award of $32,874
in "liquidated  damages" pursuant to  the ADEA, 29  U.S.C.  
626(c).   The district court denied  this request, reasoning
that because liquidated damages  under the ADEA are punitive
in nature, permitting Keisling both liquidated damages under
federal  law  and punitive  damages  under  state law  would
result in a double recovery for a single wrong. A. 121-23.  

                              -2-

in excluding testimony proffered by the defendants, we reverse

and remand for a new trial.

I.  FACTS

          The record developed at trial would  support factual

findings as follows:

          SER  is  a non-profit  Rhode  Island social  service

agency whose operations are primarily geared to Rhode Island's

Hispanic  population.    Dania Keisling  became  an  associate

director of SER in 1984.  From 1984 until mid-1989, Keisling's

work was supervised by Carlos Pedro, SER's executive director.

Keisling also had extensive dealings with Alma Green, who  was

the president of SER's  board of directors.  During  this time

period, Keisling received regular increases in pay, and as SER

expanded   its   services   Keisling's  job   responsibilities

increased  dramatically.    Keisling did  not  receive  formal

evaluations of  her performance; she testified,  however, that

"[m]any times" Green "said  that I was always there  and I was

doing a real good job" and "that I was always actually running

that   agency."       Transcript   of    Defendants-Appellants

(hereinafter "T.") 45.

                              -3-

          In  July 1989, Pedro resigned as executive director,

and  SER began  the  chore of  finding  a replacement.    Both

Keisling  and Lynn  Trudell, SER's  other associate  director,

applied to fill  the vacancy.   Keisling testified that  after

she  applied   for  the   position  she   had  at   least  two

conversations  with  Green  in  which  Green made  age-related

comments.  As recounted by Keisling, the comments were:

          Sure,  you can run that agency but do you want to do
          that at your age?

          Sure, you can run  this agency and you have  done it
          but do  you want to  do that  and do  you want  that
          aggravation at your age?

T.  49.    Two  other  witnesses,  an  independent  bookkeeper

employed by SER and the executive director of a sister agency,

testified that  Green made similar comments  about Keisling to

them  during the  time  that  SER  was  searching  for  a  new

executive director.  T. 182, 218.

          In November  1989, SER hired  Dr. Lois K.  Turner as

executive consultant to the Board of Directors, a position  in

which  Turner  functioned  essentially  as  interim  executive

director,  supervising the  daily operation  of the  agency in

consultation  with Green.  Among  other duties, Dr. Turner was

responsible  for   performing  an  extensive  review   of  the

functioning of SER and  for assisting in the  hiring of a  new

executive director.  A. 164-65.  In reviewing the operation of

                              -4-

the agency, Turner  purportedly discovered some  problems with

Keisling's  performance.  On January 19, 1990, Turner met with

Keisling  and advised her of matters that had come to Turner's

attention.   Specifically,  Turner  told  Keisling that  staff

members had  complained that Keisling  had yelled at  them and

had used profanity and obscene gestures.  Turner also asserted

that  Keisling had failed  to complete some of  her tasks in a

timely manner.  T. 58-9.

          Turner memorialized the meeting  with Keisling in  a

memorandum  dated  February  1,  1990  --  a  memorandum  that

Keisling  stated she received  on February 9.   The memorandum

repeated the  charges of inappropriate behavior,  and also set

forth   a  number  of   alleged  deficiencies   in  Keisling's

performance.    In  the  memorandum, Turner  gave  Keisling  a

thirty-day probationary period, beginning February 1, in which

to   demonstrate  appropriate  professional  behavior  and  to

improve her performance.  A. 133, 135.   Keisling responded to

the  February 1 memorandum with  memoranda of her  own, one to

the Board of Directors and one to her personnel file, in which

she attempted to refute Turner's allegations.  A. 136, 138.

          On March  2, at  the conclusion of  the probationary

period, Turner and  Green met with  Keisling and informed  her

that  her employment  was to  be terminated.   They  presented

                              -5-

Keisling with a memorandum, dated March  2, stating that Green

and  the  Executive Committee  of  SER  had endorsed  Turner's

decision to  terminate Keisling's employment.   A. 144.   They

also presented Keisling with a letter from Turner, also  dated

March   2,   detailing   additional   instances   of   alleged

inappropriate  behavior and  inadequate  performance. A.  141.

Keisling was given an opportunity to appeal her termination to

the  Board of Directors, which upheld the termination.  At the

time she was terminated, Keisling was over 40 years old.

II.  ANALYSIS

          From  the  jury's  verdict  in  favor  of  plaintiff

Keisling, the  three defendants  have appealed.   Four grounds

for appeal are  advanced.  Of  these, it is only  necessary to

address  two in  detail.2   First, defendants  claim that  the

district  court erred  in  failing to  grant their  post-trial

motion for judgment as  a matter of  law.  Second, they  argue

that  the  district  court   committed  prejudicial  error  in

excluding testimony regarding age-related statements allegedly

made  by  defendant  Green  and  by  Keisling  herself.  These

arguments will be addressed in turn.

A.        Denial of Motion for Judgment as a Matter of Law
                                                          

                    

2         The remaining two issues are discussed infra, note
                                                      
10.

                              -6-

          Defendants  argue that  the district court  erred in

denying their motion  for judgment as  a matter of law.   They

claim  that Keisling  failed  to introduce  evidence at  trial

sufficient   even  to   establish  a   prima  facie   case  of
                                                   

discrimination,  much less  to  carry her  ultimate burden  of

proof.

          Defendants' argument suffers from two flaws.  First,

as Keisling  points out,  defendants failed to  preserve their

argument properly for appeal  by failing to make a  motion for

judgment as  a matter of  law at  the close  of all  evidence.

Rule 50(a) of the  Federal Rules of Civil Procedure  permits a

motion for judgment as a matter of law to be made "at any time

before  submission of the case  to the jury."   Defendants, in

compliance with this  rule, made  a motion for  judgment as  a

matter of law  at the close of Keisling's case.  T. 289.  That

motion, however,  was insufficient to preserve  the issue that

defendants  are  now  seeking to  present  on  appeal.   If  a

defendant wishes to renew a motion for judgment as a matter of

law at the post-trial  stage, with a view to  having denial of

that  motion considered by the court of appeals, the defendant

is required to  have moved for judgment as a  matter of law at

                              -7-

the  close of  all  the evidence.   Fed.  R.  Civ. P.  50(b).3

Requiring  the  motion to  be  made at  the  close of  all the

evidence gives the opposing party an opportunity to respond to

any evidentiary deficiencies noted by the motion by seeking to

reopen the evidence  prior to  submission of the  case to  the

jury.  See  Fed. R.  Civ. P. 50(a)  advisory committee's  note
          

(1991).   This  court  therefore has  held  that it  will  not

consider claims of  insufficient evidence unless  the district

court was presented with a motion  for judgment as a matter of

law at  the close of all  the evidence.  See  Jusino v. Zayas,
                                                             

875 F.2d 986, 991 (1st Cir. 1989).  

          At oral argument, defendants contended that the rule

of Jusino should not apply in the present case.   They claimed
         

that the comments of the district judge in denying defendants'

motion  at the close of  plaintiff's case led  them to believe

that their motion was preserved for post-verdict consideration

by  both the  district court  and this  court, and  that their

                    

3         Rule 50(b) of the Federal Rules of Civil Procedure
states:

       Whenever a motion  for a  judgment as a  matter of  law
       made at the close of all the evidence is  denied or for
       any  reason is not granted, the court is deemed to have
       submitted  the action  to the jury  subject to  a later
       determination  of  the legal  questions  raised  by the
       motion. 

                              -8-

reasonable reliance on  the district judge's  comments removed

the necessity for  a renewed motion  at the close  of all  the

evidence.4

          We are far from  persuaded that the district judge's

comments could reasonably  have been taken as  an assurance by

the  judge that  defendants need  not move  for judgment  as a

matter  of law at  the close  of all  the evidence.   However,

assuming arguendo that defendants did  not read too much  into
                 

the judge's comments, defendants'  asserted reliance on  those

comments was,  nonetheless, insufficient  to obviate  the need

for conformity with  the requirement that the adequacy  of the

                    

4         The  comments  of  the  district  judge  on  which
defendants  claim to  have relied were  as follows:   First,
after hearing argument on  the defendants' motion, the court
stated:

       That's  a  tough standard  and  I  think applying  that
       standard,  I  think,  counsel  for  the  plaintiff  was
       correct  in her assertions and  I will deny your motion
       in that regard and of course note an exception for you.

T.  309.   Shortly thereafter,  after a  brief discussion  of the
standards   for  the   imposition  of   punitive  damages   on  a
corporation, the court stated:

       Maybe we are not going to resolve this case until after
       the jury returns a  verdict.  If they return  a verdict
       for  the plaintiff, I can  see where I'm  going to have
       some  very  interesting  post-trial  briefs.    If they
       return a verdict for  the defendant, then the Appellate
       Court can worry about it from that point on.

Appendix at T. 313.

                              -9-

plaintiff's  case  be  challenged  at  the close  of  all  the

evidence.   To  be  sure, the  obligation  to conform  to  the

requirement  is not  absolute, but  this court  has emphasized

that only  very unusual circumstances will  justify treating a

motion at the close of the plaintiff's case as a surrogate for

a   motion  at  the  close   of  all  the   evidence.    Those

circumstances  --  which, we  have  said,  constitute a  "very

narrow  exception," Della  Grotta  v. Rhode  Island, 781  F.2d
                                                   

343,  350 (1st  Cir. 1986),  to the  rule that  the motion  be

renewed at the close of all the evidence --  are presented "in

a   case   ...   combining   judicial   assurance   concerning

preservation of rights at the time of the motion and ... brief

and  inconsequential evidence  following  the motion.  . .  ."

Bayamon Thom McAn,  Inc. v. Miranda, 409  F. 2d 968,  972 (1st
                                   

Cir.  1969); Beaumont v. Morgan,  427 F.2d 667,  670 (1st Cir.
                               

1970).  In  the present case,  whatever reliance the  district

court's  statements  may  have   induced,  the  evidence  that

defendants presented following the  district court's ruling on

their motion  was undeniably  substantial and relevant  to the

issues  raised  in  the   motion.    If  defendants  believed,

following the presentation of their case, that the totality of

the evidence  permitted only one conclusion,  it was incumbent

upon them to make that belief known to the court and to permit

                             -10-

Keisling an opportunity to respond prior  to the submission of

the case  to the jury.  Having failed to come within the "very

narrow  exception"  of  Della Grotta,  Bayamon  and  Beaumont,
                                                             

defendants have waived the right to contend before this  court

that they are entitled to judgment as a matter of law.

          Second,  even if defendants  had preserved the right

to present their argument  to this court, they have  failed to

meet  the  stringent standards  necessary  for  judgment as  a

matter of  law.  A court  is without authority to  set aside a

jury verdict and direct the entry of a contrary verdict unless

the evidence points so strongly and overwhelmingly in favor of

the moving party that no reasonable jury could have returned a

verdict  adverse to that party.  See Acevedo-Diaz v. Aponte, 1
                                                           

F.3d  62, 66  (1st Cir.  1993).   In determining  whether this

standard  has been met, the court must examine the evidence in

the light most favorable to the non-moving party; in addition,

the  non-moving  party  is  entitled to  "the  benefit  of all

inferences  which the  evidence fairly  supports, even  though

contrary inferences  might reasonably be drawn."   Cochrane v.
                                                              

Quattrocci, 949  F.2d  11, 12  n.1  (1st Cir.  1991)  (quoting
          

Continental  Ore Co. v. Union Carbide &amp; Carbon Corp., 370 U.S.
                                                    

690, 696  (1962)), cert. denied, --- U.S. ---, 112 S. Ct. 2965
                               

(1992).

                             -11-

          Under the now-familiar  standard first set  forth in

McDonnell  Douglas Corp. v.  Green, 411 U.S.  792, 802 (1973),
                                  

and  later adapted for cases  under the ADEA,  a plaintiff may

establish a prima facie case by showing  that (1) she was over
                       

40 years of  age, (2) she suffered an  adverse job action, (3)

her  job  responsibilities  were  assumed  by another  person,

demonstrating the employer's continuing need for an individual

of the plaintiff's skills,  and (4) she was qualified  for the

position  that she held and performing well enough to rule out

the possibility that the adverse job action was for inadequate

job  performance.5  See  Olivera v. Nestle  Puerto Rico, Inc.,
                                                             

922  F.2d 43,  45 (1st  Cir. 1990).   Defendants  concede that

Keisling established the first two elements of the prima facie
                                                              

case, namely  that she was over  40 years of age  and that she

was terminated  by SER.   They argue,  however, that  Keisling

failed to introduce sufficient evidence to establish the final

two  elements of  the  prima facie  case,  and that  they  are
                                  

therefore entitled to judgment as a matter of law.

                    

5         This court does not  require a plaintiff under the
ADEA  to establish, as an  element of her  prima facie case,
                                                      
that she was replaced by an individual younger than herself,
or  by someone outside the  protected class.   See Hebert v.
                                                            
Mohawk Rubber Co., 872 F.2d 1104, 1110 n.10 (1st Cir. 1989).
                 

                             -12-

          Defendants argue that  Keisling failed to  establish

the  third element of the  prima facie case,  namely, that her
                                      

job responsibilities were assumed by  another.  In making this

argument, defendants note that SER did not hire a  replacement

for  Keisling.   This  fact,  however,  is not  determinative.

Keisling presented  evidence  that Lynn  Trudell, SER's  other

associate director, assumed Keisling's duties after Keisling's

discharge.   This  evidence is  sufficient  to show,  for  the

purpose of establishing  a prima  facie case, that  SER had  a
                                       

"continued  need for the same  services and skills."   Loeb v.
                                                              

Textron, Inc., 600 F.2d  1003, 1013 (1st Cir. 1979);  see also
                                                              

Kale v. Combined  Ins. Co. of America, 861 F.2d  746, 760 (1st
                                     

Cir. 1988).  Keisling was not required to show that  SER hired

a replacement or specifically designated an existing  employee

as such.   See Loeb, 600  F.2d at 1013 n.11.   Defendants have
                   

failed  to show  that, viewing  the evidence  in a  light most

favorable to Keisling, no  reasonable jury could conclude that

Keisling  established the  third  element of  the prima  facie
                                                              

case.

          Defendants  also  argue  that  Keisling   failed  to

establish the fourth element of  the prima facie case, namely,
                                                

that  her performance  was sufficient  to meet  the legitimate

expectations  of  SER.    Defendants  contend  that  the  only

                             -13-

evidence  Keisling offered  of her acceptable  job performance

was  her own  assessment  of her  achievements and  abilities.

Defendants are correct that  such evidence, standing alone, is

insufficient  to establish  the  fourth element  of the  prima
                                                              

facie case; indeed, were evidence  of this type sufficient, it
     

is a rare plaintiff  who would fail to establish a prima facie
                                                              

case.   Defendants  fail, however,  to take  into  account the

entirety  of  Keisling's evidence.    Keisling testified  that

while  employed at  SER, her  responsibilities  were increased

substantially,  she received  positive  feedback  (e.g.,  from

defendant Green)  regarding her performance, and  she received

regular pay  increases.  Keisling also  introduced a favorable

letter of  recommendation  written by  SER's former  executive

director,  Carlos Pedro.  It  is true that  this evidence does

not extend fully to the time at which Keisling was discharged.

The  evidence  does,  however,   support  an  inference   that

Keisling's  job performance at  the time of  her discharge was

adequate  to  meet  SER's  legitimate needs.    Keisling  thus

succeeded  in establishing  the  fourth element  of the  prima
                                                              

facie case.
     

          Defendants note that  they introduced evidence that,

at the  time of her discharge, Keisling's  job performance was

inadequate.  They argue that  Keisling failed to overcome this

                             -14-

evidence,  and  that this  failure  amounted to  a  failure to

establish  a  prima  facie  case.    This  argument  fails  to
                          

apprehend  the  burden-shifting  structure of  an  ADEA  case.

Under  McDonnell  Douglas,  the  burden initially  is  on  the
                         

plaintiff to  establish all  the elements  of the  prima facie
                                                              

case.    Once  the  plaintiff  has  done  so,  the  burden  of

production shifts  to the  defendants, and the  defendants are

required  to present evidence  of a legitimate  reason for the

adverse job action taken  against the plaintiff, evidence that

explodes  the presumption  of  discrimination  created by  the

prima facie case.   If  the defendants carry  their burden  of
           

production,  the  plaintiff must  respond  to  the defendant's

evidence and  demonstrate that the adverse  action suffered by

the   plaintiff   was   indeed   the   product   of    illegal

discrimination.   See St. Mary's Honor Ctr. v. Hicks, --- U.S.
                                                    

---, 113 S. Ct. 2742, 2747 (1993).  The shifting of the burden

of production  in  an ADEA  case  does not  always  correspond

neatly  to  the orderly  presentation  of  evidence at  trial.

Thus,  it is not unusual  for a plaintiff  to introduce in her

case-in-chief  evidence  that,  within  the  McDonnell Douglas
                                                              

framework,  is  best  understood  as  responsive  to  evidence

introduced by defendants to counter the prima facie case.  The
                                                   

fact that a plaintiff introduces such evidence in her case-in-

                             -15-

chief, rather than waiting for the defendants to present their

case,  does not  mean that  anticipation  and rebuttal  of the

defendants'  case constitute  an  element of  the prima  facie
                                                              

case.   To  hold otherwise  would belie  the assertion  of the

Supreme Court  that the burden  of establishing a  prima facie
                                                              

case is "not onerous."   See Texas Dep't of  Community Affairs
                                                              

v.  Burdine, 450  U.S. 248,  253 (1981);  see also  Mesnick v.
                                                              

General  Elec.  Co.,  950  F.2d  816,  823  (1st  Cir.  1991);
                   

Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.),
                               

cert. denied, --- U.S. ---, 112 S. Ct. 181 (1991).
            

          Viewed  in  this  manner, the  proper  question  for

defendants  to  ask is  not  whether  Keisling has  failed  to

establish a prima facie case, but rather whether Keisling  has
                       

failed  to  carry  the  ultimate  burden  of  persuasion  upon

consideration of all the evidence presented at trial.  For the

purposes  of  this  appeal,  we must  conclude  that  Keisling

succeeded  in meeting her  burden.   Granted, the  evidence of

discrimination   that   Keisling   presented  was   far   from

overwhelming.   It is certainly conceivable  that a reasonable

jury, viewing all the evidence, could conclude that Keisling's

discharge was  a legitimate response  to inappropriate on-the-

job behavior, or  even that her  discharge, while unfair,  was

not  the product of illegal  age discrimination.   It seems to

                             -16-

us, however, that a determination of  the cause for Keisling's

termination  requires  a  weighing   of  the  credibility   of

defendants'  witnesses,  who   described  Keisling's   alleged

inappropriate behavior,  against that of Keisling,  who denied

that  she  ever  behaved  improperly.   Such  assessments  are

peculiarly  within the  province  of the  jury.   An appellate

court  may  not  interpose  a  judgment  different  from  that

obtained at trial simply because it disagrees  with the jury's

credibility determinations.  See  Nydam v. Lennerton, 948 F.2d
                                                    

808, 810 (1st Cir. 1991).  

          In  sum, both because  defendants' post-trial motion

for judgment as a matter of law was procedurally defective and

because  it was, on the  record made at  trial, inapposite, we

conclude  that the district court  did not err  in denying the

motion.

B.        Exclusion  of  Testimony  Concerning  Statements  by
                                                              

          Plaintiff and Defendant Green
                                       

          During   the   presentation  of   defendants'  case,

defendants  presented  testimony  by  SER's  former  executive

director, Carlos Pedro.   In the course of  Pedro's testimony,

defendants'  counsel  questioned  Pedro concerning  statements

made  by   both  Keisling  and  defendant  Alma   Green.    In

particular, defendants'  counsel sought  to elicit from  Pedro

                             -17-

statements  by  Keisling and  Green  to the  effect  that each

respectively was  getting too  old to endure  the travails  of

their jobs.   Defendants'  counsel posed  the question  in two

forms, as follows:

          Q:   During from [sic] the period of 1987 until 1989
          when you were employed  at the agency, did  you have
          occasion,  while in  the presence  of Alma  Green or
          Dania Keisling, to hear conversation where the words
          to the effect  were [sic] "I'm  getting too old  for
          this crap or too old for this stuff" were used?

          Q:   In 1987  until 1989  when you left  the agency,
          Mr.  Pedro, did  you ever  hear conversation  in the
          agency where reference to age was used?

T.  514-15.  Keisling's counsel objected  to both questions as

calling  for  hearsay   responses,  and  the   district  court

sustained  the  objections.   Defendants  now  claim that  the

exclusion of the testimony was error warranting a new trial.

          We  agree.   Rule  801(c)  of the  Federal  Rules of

Evidence  defines hearsay as "a statement, other than one made

by the  declarant while  testifying at  the trial  or hearing,

offered  in  evidence  to  prove  the  truth  of  the   matter

asserted."   In counsel's questions to  Pedro, counsel plainly

was  attempting to  elicit  from  Pedro  testimony  concerning

statements  made out  of court;  to that  extent,  the hearsay

                             -18-

rules were  implicated.6   The alleged statements  of Keisling

and Green were  not being offered  to prove the  truth of  the

matter asserted, however.  Defendants  did not ask Pedro about

the  statements in an attempt to prove that Keisling and Green

were, indeed, too  old for their jobs.   Rather, in seeking to

elicit Pedro's testimony as to statements by Green, defendants

would  have invited the  jury to infer that  this was a common

form of speech for  Green, one that she applied  to herself as

well as to others, and that when she directed similar comments

at Keisling she did not do so with discriminatory animus.  And

if Pedro were to have testified that Keisling herself had made

similar comments,7 that might have  strengthened the inference

                    

6         Defendants' assertion  that the questions  did not
call for a  hearsay response because they  simply required a
"yes" or  "no" answer is flawed.   A party cannot  evade the
dictates of the hearsay rules simply by having  an attorney,
rather than the  witness, present  the alleged  out-of-court
statement and  then asking  the witness,  "Is that what  you
heard?"  To the  extent that the questions posed  called for
Pedro to  affirm  or deny  the  content of  an  out-of-court
statement,  the questions  fell within  the purview  of Rule
801.

7         Keisling contends that defendants did not argue to
the district  court that Keisling herself  had made comments
referring to  her age, and that  defendants therefore cannot
present that argument to  this court.  Keisling's contention
is  plainly wrong.  Not only does the initial question posed
by defendants'  counsel  directly  refer  to  statements  by
Keisling, but  in the colloquy that  followed the questions,
defendant's  counsel  told the  court,  in  response to  the
court's determination that the questions called for hearsay,

                             -19-

that Green's comments  were devoid of  animus.  As  defendants

contend in their  brief, such testimony could have  provided a

predicate for arguing "that  whatever comments green [sic] and
                                                         

Keisling  may have made regarding being 'too old' for this job

were not reflections of age  'animus' but rather indicative of

frustration  with  a difficult  job  in  a difficult  economic

environment."     Appellants'  Brief  at  17.     Because  the

statements were not offered  to prove the truth of  the matter

asserted therein,  they were not hearsay within the meaning of

Rule 801(c).8  

          In  addition  to  establishing  that  the  proffered

testimony was not hearsay, defendants must establish that they

were  prejudiced by  the  exclusion  of  the testimony.    See
                                                              

Fernandez v. Leonard, 963 F.2d 459,  465 (1st Cir. 1992).   We
                    

believe that they have  done so.  As we have  said, Keisling's

evidence of  discrimination, while  sufficient to withstand  a

                    

"[I]n  the  case that  those  statements  are attributed  to
either  a  defendant  or a  plaintiff,  I  believe  they are
clearly admissible."  T. 515-16.  That argument may not have
been a model of clarity, and it is true that counsel did not
elaborate with respect to statements by Keisling.  Counsel's
presentation  was,  however,  sufficient  to   preserve  the
argument made on this appeal.

8   Of course, from  the standpoint of  hearsay doctrine, an
out of court statement by the plaintiff, when offered by the
defendant, is not hearsay  even if offered for the  truth of
the matter asserted.  Fed. R. Evid. 801(d)(2)(A).

                             -20-

motion  for  judgment   as  a  matter   of  law,  was   hardly

overwhelming.   The  testimony  proffered  by  defendants  and

erroneously excluded as hearsay  is itself not powerful stuff.

It is, however,  relevant to the  issue of whether  defendants

acted with discriminatory animus in discharging the plaintiff.

The  testimony was  offered in  an attempt  to rebut  the sole

direct  evidence  of   discriminatory  animus  that   Keisling

presented.   In a close  case, depending on  the assessment of

the testimony by the  jury, that testimony might be  enough to

tip  the balance.9  We therefore  conclude that a new trial is

warranted.10

                    

9         Keisling  argues  that  the  testimony,   even  if
admissible, was duplicative, because Green herself testified
that she  frequently made comments  along the lines  of "I'm
getting too old  for this  crap."  To  the extent,  however,
that the testimony  of Pedro might  have (1) reinforced  the
credibility of  Green's testimony, which was  plainly in her
self-interest,  and  (2) shown  that  Keisling  herself made
similar comments,  the testimony would not  have been simply
duplicative.

10        Defendants raise two  additional issues on appeal.
First, they argue that the district court erred in excluding
a   document  entitled   "Since  Original   Warning,"  which
purported to  list 18 deficiencies in Keisling's performance
following  the  original  warning  that  Keisling  received.
Defendants  argue  that  the  document is  admissible  as  a
business record kept in the ordinary course of business that
was considered by the  SER Board of Directors in  making the
decision to terminate Keisling.  The district court excluded
the document.   It  concluded that the  document represented
cumulative evidence,  because  Turner herself  testified  at
length   concerning   Keisling's   deficiencies    and   the

                             -21-

III.      CONCLUSION

          Having concluded  that the trial in  this matter was

flawed due to the prejudicial exclusion of relevant testimony,

we  vacate  the judgment  entered  by the  district  court and

remand for a new trial.

                    

presentation that Turner had made to the Board of Directors.
In addition, while the court apparently did not rely on this
point,  the court  noted that  there was  evidence  that the
document  had been  prepared  after Keisling's  termination.
Since  we have decided on other grounds  that a new trial is
warranted,  we  are  not  required  to  resolve  the  issue.
Nonetheless,  given that the issue is likely to recur in any
new  trial, we  think it  appropriate to  note that,  on the
record  before  this court,  it  appears  that the  district
court's decision  to exclude the document  did not represent
an abuse of discretion.
               Second,  defendants  argue   that  they   are
entitled  to a  new  trial because  the  jury's verdict  was
against the weight of  the evidence.   As we are ordering  a
new  trial on  other  grounds,  we  find it  unnecessary  to
address this issue.

                             -22-
