
USCA1 Opinion

	




          February 18, 1993 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1773                                   ROBERT GOLDMAN,                                Plaintiff, Appellant,                                          v.                            FIRST NATIONAL BANK OF BOSTON,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Higginbotham,* Senior Circuit Judge,                                        ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________             Denise M. Leydon with whom Weston, Patrick, Willard & Redding was             ________________           __________________________________        on brief for appellant.             Richard P.  Ward with whom Robert B. Gordon and Ropes & Gray were             ________________           ________________     ____________        on brief for appellee.                                 ____________________                                  February 18, 1993                                 ____________________                                    ____________________        *Of the Third Circuit, sitting by designation.                    CYR, Circuit Judge.  The First National Bank of  Boston                    CYR, Circuit Judge.                         _____________          terminated the employment of appellant Robert Goldman pursuant to          a reduction in force in 1989.  Goldman  sued the Bank, asserting,          inter  alia, age discrimination in violation of 29 U.S.C.    621-          _____  ____          634 ("ADEA") and Mass. Gen. L. ch. 151B, and breach of a lifetime          employment contract.  The district court granted summary judgment          in favor of the Bank.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In 1957 the Bank hired Robert Goldman as a clerk in its          Settlement Department.   Goldman  recalls that Lee  Beaulieu, the          personnel  officer who interviewed him  for the job,  told him at          the time he  was hired that  he would not become  wealthy working          for the Bank, but would have a job for life unless he committed a          criminal act against the Bank.  Goldman also recalls that Beauli-          eu said the Bank had never laid off an employee.2                    Over the ensuing thirty-two years, Goldman held various          positions with the Bank.  During the final  four years, he worked          as a Custody Administrator in the  Custody Administration Unit of          Capital  Asset Services, a  division of the  Treasury and Banking          Services Department, providing  administrative services  relating                                        ____________________               2Goldman  recollects  that   similar  representations   were          repeated  by various  supervisors  throughout the  course of  his          employment with the Bank.          to the Bank's custodial security accounts.3                    In 1989,  the Bank launched a  large-scale reduction in          its work force due to mounting losses in its Treasury and Banking          Services operation.  The Bank completely reorganized the Treasury          and Banking Services Department, reconfiguring  approximately 252          operational  functions into  approximately 135  functions.   As a          result,  119 positions  were  eliminated.   Thomas Keane,  Senior          Operations  Manager of  the  Capital  Asset Services  Department,          determined  that  it was  necessary  to  eliminate three  of  the          fifteen positions in the Custody Administration Unit.                    After reviewing recent employee performance evaluations          and  consulting  with  unit  supervisors,  Keane  selected  three          employees for dismissal:   a twenty-four year old, a thirty-seven          year  old, and Goldman, then fifty-two.  Keane explained that the          twenty-four year old was suspected of misusing a corporate credit          card; the thirty-seven year  old and Goldman were  considered the                                        ____________________               3The Bank is a custodian  of securities for various clients,          including banks, insurance companies,  colleges, and other insti-          tutions.               Custody Administrators provide necessary administrative               services for the securities accounts  of these clients,               and their  work involves  settling trades according  to               client  instructions and assuring  the proper and accu-               rate recording  of transactions  that affect  these ac-               counts.   The Bank  strives to  be competitive  in this               business by having administrators who provide efficient               customer service, and  who communicate frequently  with               clients both to assure the accuracy of transactions and               to address  any potential problems with the administra-               tion of their accounts.          Affidavit of  James W. Curran, Account  Mgr., Custody Administra-          tion Unit.                                          3          weakest performers in  the unit.   Keane represents that  Goldman          was responsible for the fewest customer accounts, with the lowest          aggregate market value, and that Goldman's low volume resulted in          large measure from the reassignment of some of Goldman's accounts          due to client complaints.   All three positions were  permanently          eliminated and  Goldman's duties  were absorbed by  the remaining          employees in the Custody Administration Unit.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Summary Judgment Standard          A.  Summary Judgment Standard              _________________________                    We review a grant of summary judgment de  novo, employ-                                                          __  ____          ing  the same criteria incumbent  upon the district  court in the          first instance.  Pedraza v.  Shell Oil Co., 942 F.2d 48,  50 (1st                           _______     _____________          Cir.  1991), cert. denied, ___  U.S. ___, 112  S. Ct. 993 (1992).                       _____ ______          Summary judgment  is appropriate where the  record, including the          pleadings, depositions, answers to interrogatories, admissions on          file, and affidavits, viewed  in the light most favorable  to the          nonmoving party,  reveals no  genuine  issue as  to any  material          fact, and the moving party is entitled to judgment as a matter of          law.   See Fed. R.  Civ. P. 56(c);  Canal Ins. Co. v.  Benner,                    ___                          ______________     ______  __          F.2d     ,      (1st Cir. 1992), No.  92-1360, slip op. at 5 (1st                ___  ____          Cir. Nov. 24,  1992); see also Mesnick v.  General Elec. Co., 950                                ___ ____ _______     _________________          F.2d 816, 822 (1st Cir. 1991), cert. denied, ___ U.S. ___, 112 S.                                         ____  ______          Ct. 2965 (1992).  The nonmoving party "may not rest upon the mere          allegations or denials of the . . . pleadings, but . . . must set                                          4          forth  specific facts showing that  there is a  genuine issue for          trial."  Fed. R. Civ.  P. 56(e).  See Anderson v.  Liberty Lobby,                                            ___ ________     ______________          Inc.,  477 U.S. 242,  248 (1985).  There  is no trialworthy issue          ____          unless there  is enough  competent evidence  to enable a  finding          favorable to the nonmoving party.  Id. at 249 (citing First Nat'l                                             ___                ___________          Bank  of  Arizona v.  Cities Service  Co.,  391 U.S.  253, 288-89          _________________     ___________________          (1968)).  Moreover, "[e]ven in cases  where elusive concepts such          as motive or intent are at  issue, summary judgment may be appro-          priate  if  the  nonmoving  party rests  merely  upon  conclusory          allegations, improbable inferences, and unsupported speculation."          Medina-Munoz v. R.J.  Reynolds Tobacco  Co., 896 F.2d  5, 8  (1st          ____________    ___________________________          Cir. 1990).          B.  Age Discrimination Claims4          B.  Age Discrimination Claims              _________________________               1.   The Burden-Shifting Paradigm               1.   The Burden-Shifting Paradigm                    ____________________________                    A  plaintiff  alleging  age  discrimination  "bears the          ultimate 'burden of proving that his years were the determinative          factor  in his discharge,  that is, that  he would not  have been                                        ____________________               4The complaint  alleged parallel  claims under the  ADEA and          its  Massachusetts  counterpart,  Mass. Gen.  L.  ch.  151B.   On          appeal,  Goldman asserts  for the  first time  that Massachusetts          applies  a less onerous standard of proof to claims brought under          the  Massachusetts  antidiscrimination  statute than  this  court          applies to ADEA  claims, and that his Massachusetts  claim there-          fore  must  be addressed  separately.    Goldman's opposition  to          summary  judgment did  not  distinguish between  the federal  and          state age discrimination claims, and he relied  solely on federal          precedent.   Consequently, the district court's  analysis did not          distinguish  between  the state  and  federal  age discrimination          claims.  We follow suit, as  "theories not raised squarely in the          district  court cannot be surfaced for the first time on appeal."          McCoy  v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st          _____     _________________________________          Cir. 1991), cert. denied,  ___ U.S. ___, 112 S.  Ct. 1939 (1992).                      ____  ______          See Mesnick, 950 F.2d at 829 n.11.          ___ _______                                          5          fired  but for  his age.'"    Mesnick, 950  F.2d at  823 (quoting                                        _______          Freeman v. Package Machinery  Co., 865 F.2d 1331, 1335  (1st Cir.          _______    ______________________          1988)).    Absent  direct  evidence of  age  discrimination,  the          familiar  burden-shifting  framework  established   in  McDonnell                                                                  _________          Douglas  Corp. v. Green, 411 U.S. 792, 802-805 (1973), comes into          ______________    _____          play.   Lawrence v. Northrop  Corp., ___ F.2d ___,  ___ (1st Cir.                  ________    _______________          1992),  No. 92-1702,  slip op.  at 4  (1st  Cir. Nov.  25, 1992);          Mesnick, 950  F.2d at 823; Medina-Munoz,  896 F.2d at 8.   First,          _______                    ____________          the plaintiff must make a  prima facie showing of discrimination,          McDonnell  Douglas, 411  U.S. at  802; Lawrence,  slip op.  at 4;          __________________                     ________          Biggins v. Hazen Paper Co., 953 F.2d 1405, 1409 (1st Cir.), cert.          _______    _______________                                  ____          denied, ___ U.S.  ___, 112 S. Ct. 3035  (1992) and cert. granted,          ______                                             ____  _______          ___  U.S. ___, 112 S. Ct. 2990  (1992); Mesnick, 950 F.2d at 823;                                                  _______          that is, Goldman must demonstrate that he (1)  was at least forty          years of age, (2)  met the employer's legitimate job  performance          expectations, (3) experienced adverse  employment action, and (4)          was replaced by  a person with roughly equivalent  job qualifica-          tions.   Id.; Medina-Munoz,  896 F.2d  at 8.   A plaintiff  whose                   ___  ____________          employment was terminated in  the course of a reduction  in force          need not demonstrate that he was replaced, but may show that "the                                           ________          employer did not treat age neutrally or that younger persons were          retained  in the same position." Hebert v. Mohawk Rubber Co., 872                                           ______    _________________          F.2d  1104, 1111 (1st  Cir. 1989); see  Lawrence, slip op.  at 5;                                             ___  ________          Connell v. Bank of  Boston, 924 F.2d 1169,  1173 n.5 (1st  Cir.),          _______    _______________          cert. denied, ___ U.S. ___, 111 S. Ct. 2828 (1991).          _____ ______                                          6                    "Establishment  of the prima facie case . . . creates a          presumption  that the  employer unlawfully  discriminated against          the  employee," Texas Dep't of Community  Affairs v. Burdine, 450                          _________________________________    _______          U.S.  248, 254 (1981), and the burden of production shifts to the          defendant-employer  to  "articulate   some  legitimate,   nondis-          criminatory reason" for the  termination.  McDonnell Douglas, 411                                                     _________________          U.S. at 802; Lawrence, slip op. at 5; Biggins, 953  F.2d at 1409;                       ________                 _______          Mesnick, 950 F.2d at 823.   The burden of persuasion remains with          _______          the  plaintiff-employee at all times.   Lawrence, slip  op. at 5;                                                  ________          Mesnick,  950  F.2d at  823 (citing  Burdine,  450 U.S.  at 253);          _______                              _______          Medina-Munoz, 896 F.2d at 9.          ____________                    The presumption of unlawful age discrimination generat-          ed  by the  plaintiff-employee's prima facie  showing dissipates,          however, provided the employer sustains its burden of production;          the plaintiff-employee  must then demonstrate that  the proffered          reason for the adverse employment action was simply a pretext for          age discrimination.  Lawrence,  slip op. at 6; Mesnick,  950 F.2d                               ________                  _______          at 823;  Connell, 924 F.2d at  1172.  The plaintiff  must do more                   _______          than  cast doubt  on the employer's  justification for  the chal-          lenged action; there must be  a sufficient showing that discrimi-          natory animus motivated the  action.  Lawrence, slip op.  at 6-7;                                                ________          Mesnick, 950 F.2d  at 824; Villanueva  v. Wellesley College,  930          _______                    __________     _________________          F.2d 124, 127-28  (1st Cir.), cert. denied, ___  U.S. ___, 112 S.                                        ____  ______          Ct. 181 (1991); Connell,  924 F.2d at 1172.   Direct or  indirect                          _______          evidence  of discriminatory motive may do, but "the evidence as a          whole  . . . must be  sufficient for  a reasonable  factfinder to                                          7          infer that the employer's decision was motivated by age  animus."          Connell, 924  F.2d at 1172 n.3; see also Lawrence, slip op. at 6-          _______                         ___ ____ ________          7, Mesnick, 950 F.2d at 825; Villanueva, 930 F.2d at 128.             _______                   __________                    Under  First  Circuit  caselaw, the  plaintiff-employee          must adduce minimally sufficient evidence of pretext and discrim-                                                               ___          inatory animus.  Lawrence,  slip op. at 6-7 (citing  Mesnick, 950                           ________                            _______          F.2d at  825; Villanueva, 930 F.2d  at 127; Connell,  924 F.2d at                        __________                    _______          1172; Medina-Munoz, 896 F.2d at 9; Olivera v. Nestle Puerto Rico,                ____________                 _______    ___________________          Inc.,  922 F.2d  43, 48  (1st Cir.  1990)).   A showing  that the          ____          employer's justification was not the actual motive may be  enough          if the  facts and circumstances  raise a reasonable  inference of          age discrimination.   Connell, 924  F.2d at 1175.   Nevertheless,                                _______          the plaintiff-employee  cannot  avert  summary  judgment  if  the          record  is devoid of  direct and circumstantial  evidence of dis-                                       ___          criminatory animus on the  part of the employer.   Lawrence, slip                                                             ________          op. at 6-7 n.1.5                                        ____________________               5Appellant argues that our cases place a more onerous burden          on an ADEA plaintiff than that envisioned by the Supreme Court in          McDonnell  Douglas and Burdine.  Accord Connell, 924 F.2d at 1183          __________________     _______   ______ _______          (Bownes,  J.,  dissenting)  (suggesting  that  Burdine  permits a                                                         _______          plaintiff to  prove employment  discrimination "either  by direct                                                          ______          evidence of  discrimination  or  by  successfully  rebutting  the                                       __          employer's articulated reasons.").   We  do not agree.   Fed.  R.          Civ. P.  56  requires  the  nonmoving party  to  demonstrate  the          existence  of a  dispute of  material fact;  in order  to do  so,          Goldman "must raise an  inference of discriminatory motive under-          lying the pretextual  explanation."  Villanueva, 930  F.2d at 128                                               __________          (citing Medina-Munoz,  896 F.2d at 9).  It is not the province of                  ____________          the courts to sit as "super personnel departments, assessing  the          merits      or  even the  rationality      of  employers' nondis-          criminatory business decisions."  Mesnick, 950 F.2d at 825.  "The                                            _______          'ADEA  does not stop a  company from discharging  an employee for          any reason  (fair or  unfair) or  for no reason,  so long  as the          decision  to  fire does  not stem  from  the person's  age.'" Id.                                                                        ___          (quoting Freeman v.  Package Machinery Co.,  865 F.2d 1331,  1341                   _______     _____________________                                          8                    The Bank  does not challenge the  district court ruling          that Goldman  made out  a prima  facie age  discrimination claim.          Nor  does Goldman  challenge the  finding that  the Bank  met its          burden  at  the second  stage  of the  McDonnell  Douglas burden-                                                 __________________          shifting analysis by articulating a nondiscriminatory motive  for                               ____________          Goldman's dismissal; namely,  that economic considerations neces-          sitated  a reduction in force and Goldman was selected for termi-          nation  because he was "the weakest performer and least qualified          employee"  in his  unit.   At the  third and  final stage  of the          McDonnell Douglas analysis, the district court ruled that Goldman          _________________          had failed  to present  sufficient evidence  either to  rebut the          Bank's  proffered justification  for  Goldman's dismissal  or  to          support an inference  of discriminatory animus.  The Bank accord-          ingly won summary judgment on the state and federal age discrimi-          nation claims.   Contending that  the district court  weighed the          competing  evidence,  rather than  viewing it  in the  light most          favorable  to him,  Goldman  maintains that  there is  sufficient          record  evidence of pretext and  age animus to  clear the summary          judgment hurdle.               2.   Evidence of Pretext               2.   Evidence of Pretext                    ___________________                    "In  assessing pretext,  [our]  'focus must  be on  the          perception of  the decisionmaker,' that is,  whether the employer                                                                   ________                                        ____________________          (1st Cir. 1988)).   Since an employer's nondiscriminatory motiva-          tions for adverse  employment decisions are irrelevant  in an age          discrimination case, a "mere  showing that the employer's articu-          lated  reason  may  shield another  (possibly  nondiscriminatory)          reason  does not create a dispute of material fact" sufficient to          withstand summary judgment.  Villanueva, 930 F.2d at 128.                                       __________                                          9          believed its stated reason to be credible."  Mesnick, 950 F.2d at                                                       _______          824 (quoting Gray v. New  England Tel. & Tel. Co., 792  F.2d 251,                       ____    ____________________________          256  (1st Cir. 1986) (emphasis added)).  Goldman does not dispute          that  the Bank effected the reduction in force in order to reduce          costs.   Instead, he argues  that he produced  enough evidence to          rebut the Bank's  contention that  he was the  weakest and  least          qualified  employee in his unit.  Goldman established that he had          received merit salary increases on a regular basis throughout his          tenure with  the Bank, received commendations  and accolades from          Bank clients over the years, and received no warnings relating to          his work  performance.   Although Goldman received  mixed perfor-          mance evaluations, he disputed their accuracy and fairness.                    Goldman  presented substantial  evidence that  the Bank          did not consider his  work performance unsatisfactory in absolute          terms.  But the Bank consistently has maintained that Goldman was          discharged strictly  because he was the  least qualified employee                                                   _____ _________          in  the Custody  Administration Unit.   It  submitted comparative          evidence as to  the account workloads of  all custody administra-          tors in Goldman's unit.  There  is no dispute that Goldman, among          all  custody  administrators,  was  responsible  for  the  fewest          accounts, having  the lowest aggregate  market value.   In  these          circumstances,  refutation of  the  proffered  justification  for          Goldman's  discharge required  evidence from  which the  trier of          fact  reasonably  could  conclude  that Goldman's  abilities  and          qualifications  were  equal or  superior  to  employees who  were          retained.   As Goldman made no such evidentiary showing, whatever                                          10          slight  shadow of  doubt may  have been  cast upon  the proffered          justification for his dismissal is too faint to raise the spectre          of pretext.                                          11               3.   Evidence of Age Animus               3.   Evidence of Age Animus                    ______________________                    Evidence of  age animus  "need not  be of  the 'smoking          gun' variety," but the totality of the circumstances  must permit          a reasonable inference that  the employer's justification for the          challenged action was a pretext for age discrimination.  Connell,                                                                   _______          924 F.2d  at 1175 (citing  Burdine, 450  U.S. at  256).   Goldman                                     _______          insists that  several pieces of evidence, considered collectively          or individually, support an inference of discriminatory animus on          the part of the Bank.               First, Goldman claims  that discriminatory animus is  infer-          able from  the affidavits  of eight  former Bank  employees, each          stating that the affiant  was the eldest,  or one of the  eldest,          employees in a  particular unit  at the Bank  and was  performing          adequately  when dismissed  pursuant to  the reduction  in force.          According  to Goldman,  the  fact that  several older,  long-term          employees with satisfactory  performance records were  terminated          could lead a reasonable factfinder to conclude that Goldman would          not have  been terminated but for  his age.  On  the contrary, as          the district court observed, anecdotal evidence of this sort does          little more  than "corroborate what was  undisputed: that members          of  the protected class were terminated as part of the [reduction          in force]."  Evidence that eight employees, among the 119 select-          ed for dismissal, were among the eldest in their respective units          does not give rise to a reasonable inference that older employees          were disproportionately affected by  the reduction in force, much               __________________          less that age discrimination motivated their dismissal.                                          12                    Second,  Goldman  theorizes  that  the  termination  of          older, more costly, employees  would optimize the cost reductions          achieved  through  the  reduction  in force.    The  implication,          Goldman  suggests,  is that  the  Bank was  biased  against older          employees  in effecting  the workforce  reduction.6   Yet Goldman          submitted  no  evidence either  that  older  employees were  more          costly to the Bank than younger employees or that older employees          were  disproportionately affected by the reduction in force.  See                                                                        ___          Mesnick, 950  F.2d at 822  (evidence presented by  party opposing          _______          summary   judgment  "'cannot  be  conjectural  or  problematic'")          (quoting  Mack v. Great  Atl. & Pac.  Tea Co., 871  F.2d 179, 181                    ____    ___________________________          (1st Cir. 1989)).                    Third, Goldman contends that the Bank's introduction of          a  new  retirement plan  raised  an  inference of  discriminatory          animus.   In 1989 the Bank  replaced its pension plan  with a new          "Cash Balance" plan.   The  Bank informed its  employees, at  the          time, that  its  objective was  "to  make the  Bank's  retirement          benefits  a visible,  attractive benefit  to our  entire employee          population     regardless of age" and to  "reward employees based                                        ____________________               6Goldman  notes that 41% of the  119 employees terminated in          May 1989 were over forty years of age, but that among the 21 ter-          minated employees subsequently rehired, only 5, or 24%, were over          forty.  Statistical evidence that older employees were terminated          at  a disproportionate rate  may provide  strong evidence  of age          discrimination.   See Mesnick, 950 F.2d at 824; Connell, 924 F.2d                            ___ _______                   _______          at 1177.  However,  the present record includes no evidence as to          the age composition  of the workforce subject  to termination, or          of the pool of applicants seeking  reemployment, against which to          compare  the data  Goldman  cites.   In  fact, at  oral  argument          Goldman  disclaimed  any  statistical  argument  based  on  these          incomplete data.                                          13          upon  individual  performance."   Under  the new  plan,  the Bank          opened a  "Cash Balance" account  for each employee  and credited          the account  annually with a  percentage of the  employee's sala-          ry.7  After five years of service, all funds in  the Cash Balance          account  may be withdrawn by employees who are no longer employed          by the  Bank.  Goldman  argues that the  new plan  favors younger          employees  and  raises  an inference  of  age  animus because  it          requires the Bank to deposit a decreasing percentage of salary to          the  Cash  Balance account  as  the  employee reaches  the  upper          service  brackets and because its  stated purpose is  to make the          plan more attractive  to the 85% of  Bank employees for whom  the          former  pension  plan  represented  "a benefit  for  the  distant          future."                    Goldman's argument is deficient, however, in that there          is  no evidentiary foundation for  the premise that  the new plan          disadvantages older employees.   The fact that the  Bank contrib-          utes decreasing percentages of salary to the Cash Balance account          after the employee reaches the thirty-five year service threshold                                        ____________________               7The  percentage of  salary  credited annually  to the  Cash          Balance  account depends on the  number of years  of service with          the Bank:                                             Percentage of Salary Credited               Years of Service                 to Cash Balance Account                   ________________              ______________________________                    0 -  1                             0%                    1 -  2                             3.25%                    3 -  4                             4%                    5 -  9                             5%                   10 - 14                             6%                   15 - 19                             8%                   20 - 34                            11%                   35 - 39                             6%                     40+                               0%                                          14          is  insufficient  to create  an  inference of  age  animus absent          evidence  that the  resulting retirement  benefit would  be lower          than  the benefit  the  employee would  have  received under  the          former plan.  Moreover, Goldman's argument ignores the safeguards          put in place  by the Bank to ensure that  employees fifty-five or          older with  ten years of  service, or employees  at any  age with          twenty years of service,  would experience no reduction  in bene-          fits.  When  an employee  in either of  these service  categories          retires or  leaves the Bank,  benefits are calculated  under both          the old pension  plan and the new Cash Balance plan; the employee          is  entitled to receive the greater benefit.  Thus, these employ-          ees cannot  be  disadvantaged  by  the introduction  of  the  new          plan.8                    These safeguards do not necessarily cover all employees          in  the protected  class,  however, as  those  between forty  and          fifty-five  with  less than  twenty  years of  service  and those          fifty-five or  older with less  than ten years of  service at the          time the  new plan became effective fall outside the scope of the          safeguard provision.  Rather, at retirement or termination, these          employees  receive benefits  under  both plans.   The  retirement          benefit under the former plan is based upon the length of service          as  at December 31, 1988; under the new plan the benefit consists          of  the  funds  accumulated  in the  Cash  Balance  account after                                        ____________________               8Goldman argues that the safeguards would have been unneces-          sary if the new plan did not deprive these employees  of benefits          to which they  would have  been entitled under  the former  plan.          Clearly, Goldman's argument entirely ignores the safeguards.                                          15          December 31, 1988.  Goldman  has adduced no evidence, nor  has he          argued, that benefits calculated under these provisions are lower          than  those obtainable under the former  pension plan for members          of the protected  class.  Accordingly, no reasonable inference of          age bias can be drawn on the present record.                    Finally,  Goldman maintains that the Bank's decision to          disband  the "Quarter  Century  Club,"  a  Bank-sponsored  social          organization  for employees  with  twenty-five years  or more  of          service,9  uniquely and  adversely affected  older employees  and          therefore  is indicative of age  bias.  Goldman  does not dispute          that the Bank stopped funding the Quarter Century Club as part of          its  program to reduce discretionary  costs.  There  is no direct          evidence  that  considerations  of  age,  as  distinguished  from          neutral cost-saving  considerations, entered into the decision to          disband the organization, and the bare fact that the Bank stopped          funding  the  Quarter Century  Club  to reduce  costs  clearly is          insufficient  to  support a  reasonable inference  that Goldman's          dismissal was motivated by age discrimination.                    Even viewed collectively, see  Mesnick, 950 F.2d at 824                                              ___  _______          (citing Olivera,  922 F.2d at 50) (We do not "look at evidence of                  _______          discrimination . . .  in splendid isolation,  but as  part of  an          aggregate  package  of proof  offered  by  the plaintiff."),  the          evidence was  insufficient to  enable a reasonable  factfinder to                                        ____________________               9The record on appeal  contains no evidence as to  the bene-          fits associated with  Quarter Century Club  membership.  At  oral          argument, counsel allowed as how members received small  gifts in          recognition  of their loyal service and were honored at an annual          dinner.                                          16          infer that  age discrimination  motivated the Bank's  decision to          dismiss  Goldman.  Stripped of its speculative chaff, at best the          record reveals that a small number of those discharged were among          the  older employees  in their  respective units,  that  the Bank          implemented a new pension plan which has in no measure been shown          to  have been  disadvantageous to  older employees, and  that the          Bank stopped funding the  Quarter Century Club.  The  gap between          this evidence and  an inference of age discrimination  could only          be bridged  by impermissible  inference.  As  Goldman established          neither  pretext nor  age  animus, the  district court  correctly          granted summary judgment on the age discrimination claims.          C.   Breach of Lifetime Employment Contract          C.   Breach of Lifetime Employment Contract               ______________________________________                    Goldman  maintains  that   Lee  Beaulieu,  a  personnel          officer, offered him lifetime employment by representing that the          Bank had never laid off employees  and that Goldman would have  a          job  for  life unless  he committed  a  criminal act  against the          Bank.10   Even though  it  is far  from clear  that  the sort  of          representations made by Beaulieu import an oral offer of lifetime          employment, for present purposes we assume as much arguendo.                                                             ________                    Under Massachusetts law, a lifetime employment contract          cannot be found  absent evidence that it was made  or ratified by          an officer or agent with actual or apparent authority to bind the          employer to a  lifetime contract.   See Rydman  v. Dennison  Mfg.                                              ___ ______     ______________          Co., 373 Mass. 855, 366 N.E.2d 763 (1977); Porshin v. Snider, 349          ___                                        _______    ______                                        ____________________               10Goldman had no written employment contract with the Bank.                                          17          Mass.  653, 654,  212 N.E.2d  216, 217  (1965); Thalin  v. Friden                                                          ______     ______          Calculating  Mach. Co.,  338 Mass.  67, 70,  153 N.E.2d  658, 660          ______________________          (1958);  Simonelli v. Boston Hous. Auth.,  334 Mass. 438, 440-41,                   _________    __________________          137 N.E.2d 670, 672-73 (1956).  As there is no  evidence that the          Bank invested Beaulieu with actual authority to  extend a binding          offer of  lifetime employment to  anyone, we need  only determine          whether  Goldman  has  demonstrated  a  genuine  factual  dispute          material to the issue of apparent authority.                    "Apparent or ostensible authority 'results from conduct          by  the principal  which  causes  a  third person  reasonably  to          __  ___ _________          believe that  a particular  person . . .  has authority  to enter          into  negotiations or  to  make representations  as his  agent.'"          Hudson v.  Massachusetts Property  Ins.  Underwriting Ass'n,  386          ______     ________________________________________________          Mass. 450, 457, 436 N.E.2d 155, 159 (1982) (quoting W. A. Seavey,          Agency   8D at p. 13 (1964)) (emphasis added).  "It is a 'fundam-          ______          ental rule that apparent  authority cannot be established  by the          putative  agent's own words or  conduct, but only  by the princi-                                                       ____  __ ___ _______          pal.'"  Sheinkopf v. Stone,  927 F.2d 1259, 1269 (1st  Cir. 1991)          ___     _________    _____          (quoting Sheldon v.  First Fed.  Savings & Loan  Ass'n, 566  F.2d                   _______     _________________________________          805, 808 (1st Cir. 1977)) (emphasis added).  We therefore examine          the record  for conduct on the  part of the Bank  that could have          prompted Goldman  reasonably to believe that  Beaulieu was autho-          rized to hire him as a lifetime Bank employee.                    A person appointed to  a position with generally recog-          nized functions may  be found  to possess  apparent authority  to          perform  the duties  ordinarily entrusted  to one  occupying that                                          18          position.   Restatement  (Second) of Agency    27 cmt.  a (1958).                      _______________________________          Clearly,  Beaulieu, a  personnel  officer, had  either actual  or          apparent authority to hire Bank employees.  Ordinary authority to          hire, however, is insufficient to bind the employer to a lifetime          employment contract.  Boleman v.  Congdon and Carpenter Co.,  638                                _______     _________________________          F.2d 2, 4 (1st Cir.), cert. denied, 454 U.S. 824 (1981) (applying                                ____  ______          Massachusetts  law).   "[R]arely . . .  [do]  circumstances exist          which  would give rise to apparent authority, of even a principal          corporate  officer, to  employ another  for life."   Thalin,  338                                                               ______          Mass. at 70, 153 N.E.2d at  660; see Annotation, Power of  Corpo-                                           ___             ________________          rate Officer or  Agent to  Hire Employees for  Life, 28  A.L.R.2d          ___________________________________________________          929, 933 (stating that "[i]n the absence of express authority, it          has generally been  held or recognized that corporate officers or          agents do not have the  power or authority to hire employees  for          life").                    Goldman  suggests that  apparent  authority  should  be          inferred because  his only contact  at the time he  was hired was          with Beaulieu  and he had no way of knowing that lifetime employ-          ment  contracts with the Bank  were extraordinary.   As the great          weight of  authority makes clear, however,  a corporate personnel          officer's general hiring authority  does not suffice to establish          apparent authority to  bind the employer to a lifetime employment          contract,  irrespective  of  any  awareness on  the  part  of the          employee  that  lifetime employment  contracts with  the employer          were extraordinary.  See Rydman, 373 Mass. at  855, 366 N.E.2d at                               ___ ______          764  (suggesting  that  even  explicit  assurances  by  corporate                                          19          officers or agents do not bind a corporate employer to employment          contracts  of  extraordinary  duration unless  the  contract  was          either made or  ratified by  an officer with  actual or  apparent          authority to so bind the corporation); Porshin, 349 Mass. at 654,                                                 _______          212  N.E.2d at 217  (finding general manager's  authority to hire          and fire insufficient to "clothe him with ostensible authority to          make a contract for  permanent employment"); Simonelli, 334 Mass.                                                       _________          at  440-41, 137  N.E.2d at  672  (finding assurances  of lifetime          employment made by personnel  manager and project director insuf-          ficient to create  lifetime employment contract absent  ratifica-          tion by  the employer); Braden  v. Trustees of  Phillips Academy,                                  ______     _____________________________          321  Mass. 53, 71 N.E.2d 765 (1947) (holding that comptroller had          no  authority  to  hire  assistant comptroller  for  life  absent          conduct  by employer  that could  have  caused plaintiff-employee          reasonably  to believe  the comptroller  was authorized  to offer          lifetime  employment).   Holding  Beaulieu out  as its  agent for          general hiring purposes did  not constitute conduct warranting an          objectively reasonable  belief that Beaulieu had  Bank  authority          to hire anyone for life.                    Apparent  authority to offer a binding lifetime employ-          ment contract may be found in  the rare circumstance where it  is          customary  for a  particular  officer or  agent  to make  such  a          lifetime contract.  28 A.L.R.2d at 938.  See Braden, 321 Mass. at                                                   ___ ______          55,  71 N.E.2d at 766.   The Bank  submitted competent affidavits          attesting  that Beaulieu had no actual authority to bind the Bank          to  a lifetime  employment contract  and that  no employee  has a                                                         __ ________                                          20          lifetime contract with the Bank.  Goldman suggests, however, that          an inference that lifetime  employment contracts were commonplace          at  the Bank can  be drawn  from the  assurances of  Beaulieu and          several  supervisors that  he  had a  job  for life  and  that no          employee had ever been laid off.                    "Lifetime contracts  are extraordinary in  their nature          and strong proof is  required to establish their  due formation."          Gregory v. Raytheon Serv. Co., 27  Mass. App. Ct. 1170, 1171, 540          _______    __________________          N.E.2d 694, 695 (1989); accord Boleman, 638 F.2d at 4  (finding a                                  ______ _______          putative lifetime employment  contract "well within the  category          of extraordinary  agreements  requiring the  strongest  proof  of          authority  by the one making  it to bind  a corporate employer").          Although widespread knowledge that the Bank had never laid off an          employee except for criminal  conduct might prompt the legitimate          belief that  employment at  the Bank  was  relatively secure,  it          cannot be  considered competent proof, let  alone "strong proof,"          Gregory, 27 Mass. App. Ct.  at 1171, 540 N.E.2d at 695,  that any          _______          Bank employee  had a lifetime  employment contract.   Absent evi-          dence of any lifetime employment contract with the Bank    at any          level under any circumstances    we must conclude that a rational          factfinder  could not  reasonably find  that  lifetime employment          contracts with the Bank were customary.                    Although Goldman failed to generate a trialworthy issue          as  to whether  Beaulieu  possessed apparent  authority to  offer          lifetime  Bank employment,  we  must still  consider whether  any          officer, with  authority to bind the  Bank, subsequently ratified                   ____                                          21          Beaulieu's  unauthorized  offer  of  lifetime  employment.    See                                                                        ___          Restatement (Second) of Agency   82  (1958); 28 A.L.R. at 938-40;          ______________________________          Rydman, 373 Mass. at 855, 366 N.E.2d at 764; Simonelli, 334 Mass.          ______                                       _________          at 441, 137 N.E.2d at 672.                    Goldman attests that the concept of lifetime employment          was reinforced  by various  supervisors throughout his  tenure at          the Bank.  Ratification  is not established, however,  unless the          subsequent  assurances were made  by one with  actual or apparent          authority to  bind the  Bank to  a lifetime  employment contract.          See  Rydman, 373  Mass. at  855, 366  N.E.2d at  764; Restatement          ___  ______                                           ___________          (Second) of Agency   93 cmt. c (1958).  As the record contains no          __________________          evidence  that any  supervisor who  represented that  Goldman was          employed  for life had actual  or apparent authority to determine          the  terms of Goldman's  employment contract, much  less bind the          Bank to  a lifetime  contract, no  trialworthy  issue was  raised          relating to the ratification claim.11                    As Goldman generated  no trialworthy issue relating  to          the lifetime  employment  contract claim,  summary  judgment  was          proper.                    Affirmed.                    Affirmed.                    ________                                        ____________________               11The Bank's pre-1989 practice  of not discharging employees          except for criminal conduct is entirely consistent with universal          at-will  employment  and  does  not constitute  affirmance  of  a          lifetime  contract.   See  Restatement  (Second)  of Agency    93                                ___  ________________________________          (1953)  ("affirmance  can be  established by  any conduct  of the          purported principal manifesting that he consents to be a party to          the transaction,  or  by conduct  justifiable  only if  there  is          ratification").                                          22
