
USCA1 Opinion

	




          November 25, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1702                                 SIDNEY R. LAWRENCE,                                Plaintiff, Appellant,                                          v.                                NORTHROP CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Paul A. Manoff for appellant.            ______________            Joseph D.  Regan  with whom  Donahue &  Donahue was  on brief  for            ________________             __________________        appellee.                                 ____________________                                 ____________________        _____________________        *Of the Fifth Circuit, sitting by designation.                      STAHL,  Circuit  Judge.    On  September  2,  1988,                      STAHL,  Circuit  Judge.                              ______________            defendant-appellee    Northrop    Corporation    ("Northrop")            terminated  the employment  of plaintiff-appellant  Sidney R.            Lawrence  ("Lawrence").  Believing that his discharge stemmed            from impermissible age discrimination, Lawrence sued Northrop            under the  Age Discrimination in Employment  Act ("ADEA"), 29            U.S.C.     621-634 (1985 &  Supp. 1992).   The district court            entered summary judgment in Northrop's favor.  We affirm.                                          I.                                          I.                                          __                                 STATE OF THE RECORD                                 STATE OF THE RECORD                      As an  initial  matter,  we  note  that  Lawrence's            counsel, in opposing Northrop's  summary judgment motion  and            in  framing  the  instant  appeal,  has  presented  both  the            district court  and this  panel with factual  allegations and            legal theories that bear little, if any, resemblance to those            found in the  complaint.  In addition, as support for the new            allegations and theories, counsel has submitted, without  any            appreciable  attempt at  useful elaboration, a  cornucopia of            disjointed  deposition  excerpts  and  unexplained  discovery            documents.  Given such a record, any attempt to set forth the            facts  underpinning  Lawrence's various  allegations, without            context, would be an  Augean labor.  Accordingly, we  find it            more  worthwhile  to begin  by  reciting  the relevant  legal            norms, and then to use our recitation as a lens through which            to focus Lawrence's somewhat clouded presentation.                                         -2-                                          2                                         II.                                         II.                                         ___                                  LAW TO BE APPLIED                                  LAW TO BE APPLIED            A.  Summary Judgment            A.  Summary Judgment            ____________________                      Summary   judgment   operates   "to    pierce   the            boilerplate of the pleadings and  assay the parties' proof in            order  to  determine  whether trial  is  actually  required."            Wynne  v. Tufts Univ. Sch. of Medicine, No. 92-1437, slip op.            _____     ____________________________            at 6 (1st Cir. Oct.  6, 1992).  It is appropriate  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 judgment as  a matter of            law."   Fed.  R. Civ.  P. 56(c);  see  also Celotex  Corp. v.                                              ___  ____ ______________            Catrett, 477 U.S. 317, 323 (1986).              _______                      The  moving  party  bears  the  initial  burden  of            "averring `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,  477 U.S. at  325).   That                                      _______            burden having been  met, the  nonmoving party  "may not  rest            upon mere  allegation or  denials of his[/her]  pleading, but            must set forth specific facts showing that there is a genuine            issue  for trial."  Anderson v. Liberty Lobby, Inc., 477 U.S.                                ________    ___________________            242, 256 (1986) (citing Fed. R. Civ. P. 56(e)).  In so doing,            the nonmovant "must present  affirmative evidence in order to                                         ___________ ________            defeat a  properly supported  motion  for summary  judgment."                                         -3-                                          3            Id. at 257 (emphasis supplied).   In conducting our analysis,            ___            however, we read the record "in the light most amiable to the            nonmovant[] and  indulge all reasonable  inferences favorable            to [him/her]."  Garside, 895 F.2d at 48.                            _______                      Our review of a summary judgment ruling is plenary.            Id.  Moreover,  we are  not limited to  the district  court's            ___            reasoning.   Instead, we  may "`affirm  the entry of  summary            judgment on any independently sufficient ground made manifest            by the record.'"  Quintero v. Aponte-Roque, No. 92-1227, slip                              ________    ____________            op. at 3-4 (1st  Cir. Sept. 10, 1992) (quoting  United States                                                            _____________            v. One Parcel  of Real Property, 960 F.2d 200,  204 (1st Cir.               ____________________________            1992)).            B.  The ADEA            B.  The ADEA            ____________                      When,  as  here,  a plaintiff  produces  no  direct            evidence of  age discrimination,  the case is  analyzed under            the  now-familiar  burden-shifting  framework  set  forth  in            McDonnell  Douglas  Corp.  v.  Green, 411  U.S.  792,  802-05            _________________________      _____            (1973).   See,  e.g., Biggins  v. Hazen  Paper Co.,  953 F.2d                      ___   ____  _______     ________________            1405,  1409 (1st Cir.), cert. denied, 112 S. Ct. 3035 (1992);                                    _____ ______            Mesnick v. General  Elec. Co.,  950 F.2d 816,  823 (1st  Cir.            _______    __________________            1991), cert. denied, 112 S. Ct. 2965 (1992).  Plaintiff first                   _____ ______            must make a prima facie showing of discrimination.   Biggins,                                                                 _______            953 F.2d at 1409; Mesnick, 950 F.2d at 823.   In a case where                              _______            plaintiff  was replaced  by another  worker, this  requires a            demonstration that (1)  plaintiff was at least forty years of                                         -4-                                          4            age,  (2) plaintiff's  work  was sufficient  to meet  his/her            employer's legitimate  expectations,  and (3)  plaintiff  was            replaced  by  someone  with roughly  similar  qualifications.            Connell  v. Bank of Boston,  924 F.2d 1169,  1172 (1st Cir.),            _______     ______________            cert. denied,  111 S. Ct.  2828 (1991); Medina-Munoz  v. R.J.            _____ ______                            ____________     ____            Reynolds Tobacco  Co., 896 F.2d 5,  8 (1st Cir. 1990).   In a            _____________________            situation  where there has been a reduction in force, we have            suggested that, as an alternative to showing replacement by a            similarly qualified person, a plaintiff may establish a prima            facie case by showing  that "`the employer did not  treat age            neutrally or that  younger persons were retained in  the same            position.'"  Connell, 924 F.2d at 1173 n.5 (quoting Hebert v.                         _______                                ______            Mohawk Rubber  Co., 872 F.2d 1104, 1111 (1st Cir. 1989)).  If            __________________            made,  the prima facie case  gives rise to  an inference that            the employer  discriminated on the basis  of plaintiff's age.            Mesnick, 950 F.2d at 823.            _______                      Once  the  prima  facie  case  is  established, the            burden  shifts to  the  employer to  articulate a  legitimate            nondiscriminatory  reason  for  the  employee's  termination.            Biggins,  953 F.2d at  1409; Mesnick, 950  F.2d at  823.  The            _______                      _______            employer's burden at this stage  is merely one of production;            the burden  of persuasion  remains plaintiff's at  all times.            Mesnick, 950  F.2d at  823 (citing  Texas Dep't  of Community            _______                             _________________________            Affairs  v. Burdine,  450 U.S. 248,  253, 256 (1981)).   If a            _______     _______            non-discriminatory  reason is set forth, the inference raised                                         -5-                                          5            by the prima facie case disappears and the burden shifts back            to plaintiff.  Id.                           ___                      At  the third  and  final stage  of the  McDonnell-                                                               __________            Douglas   framework,   plaintiff    must   show   that    the            _______            nondiscriminatory  reason  advanced  by  the  employer  is  a            pretext for  age discrimination.   Id.; see also  Connell 924                                               ___  ___ ____  _______            F.2d at 1172.  It is not enough for plaintiff  merely to cast            doubt upon  the employer's justification.   Mesnick, 950 F.2d                                                        _______            at 824; Villanueva v. Wellesley College, 930 F.2d 124, 127-28                    __________    _________________            (1st Cir.), cert.  denied, 112  S. Ct. 181  (1991).   Rather,                        _____  ______            this circuit has  construed Fed. R. Civ. P.  56's requirement            that  a   party  opposing  a  motion   for  summary  judgment            demonstrate the  existence of  at least one  material factual                                                         ________            dispute  as  mandating that  the  non-moving  party point  to            evidence which  could raise an inference  of a discriminatory            motive   underlying  the   pretextual   explanation.      See                                                                      ___            Villanueva,  930 F.2d at 128;  see also Mesnick,  950 F.2d at            __________                     ___ ____ _______            824-25.  Proof of such a motive need not be direct.  Mesnick,                                                                 _______            950 F.2d at 824;  Connell, 924 F.2d at  1172 n.3.1   "Rather,                              _______                                            ____________________            1.  In elaborating upon what a non-moving plaintiff minimally            must  prove in order to elude summary judgment at stage three            of the McDonnell Douglas  rubric, we have stated:   "There is                   _________________            no absolute rule that  a discrimination plaintiff must adduce                                                              ____            evidence in addition to that comprising the prima facie  case            and  the rebuttal  of defendant's  justification in  order to            prevail either  at the summary  judgment stage or  at trial."            Villanueva,  930 F.2d at 128 (emphasis in original).  We also            __________            have asserted:  "[I]n some factual settings, the mere showing            of  the falsity of  the employer's stated  reasons may, along            with the other facts and circumstances in the case, give rise                                         -6-                                          6            the  evidence as a whole, whether direct or indirect, must be            sufficient  for a  reasonable  factfinder to  infer that  the            employer's decision  was motivated by age  animus."  Connell,                                                                 _______            924 F.2d  1172 n.3.    It is  against this  backdrop that  we            evaluate Lawrence's assertions.                                            ____________________            to a  reasonable inference  of age  discrimination." Connell,                                                                 _______            924 F.2d at 1175.                   These statements  cannot be read as  suggesting that, in            some instances,  a plaintiff  may be  allowed  to proceed  to            trial where the record is devoid of either direct or indirect            evidence of discriminatory animus on the employer's part.  In            this circuit,  it is settled  that a  plaintiff cannot  avoid            summary   judgment  unless  the   record  contains  minimally            sufficient evidence, direct or  indirect, both of pretext and                                                                      ___            of the  employer's discriminatory animus.   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; see also Olivera v. Nestle                  ____________                 ___ ____ _______    ______            Puerto  Rico,  Inc., 922  F.2d 43,  48  (1st Cir.  1990) ("In            ___________________            addition  to making out a  prima facie case,  a plaintiff has            the burden not only  of proving that the  articulated reasons            of  the  employer  were   pretextual  but  also  of  adducing            additional  evidence  that  the  articulated reasons  were  a            pretext for age discrimination.");  but see Connell, 924 F.2d                                                ___ ___ _______            at 1181 (Torres, J., concurring) (arguing that if a plaintiff            has successfully demonstrated a  triable issue with regard to            pretext, the inference of  discrimination raised by the prima            facie  case  should  be reinstated  and,  in  the  absence of            uncontradicted  evidence that  the employer was  motivated by            some other nondiscriminatory reason, the  case should proceed            to trial);  id. at 1182-85 (Bownes,  J., dissenting) (arguing                        ___            that  if  plaintiff   makes  out  a  prima  facie   case  and            successfully  rebuts as  pretextual the  employer's proffered            explanation,  s/he should  be allowed  to proceed  to trial).            Thus, the  aforementioned statements  should only be  read as            indicating that where, by whatever means, the record contains            evidence sufficient for a fact-finder to infer discriminatory            animus on the part  of an employer, plaintiff need  only make            out a prima facie case and rebut as pretextual the employer's            justification in order to defeat a summary judgment motion.                                                                             -7-                                          7                                         III.                                         III.                                         ____                                      BACKGROUND                                      BACKGROUND            A.  A Brief History            A.  A Brief History            ___________________                      In October 1985, Lawrence joined Northrop's Defense            Systems Division in  Rolling Meadows, Illinois.   At the time            of  his hiring,  Lawrence was  fifty-two years  old.   He was            hired on a "skills-needed" basis.                      By  mid-1988,  Northrop  was   experiencing  severe            economic  stress  and was  in  the  process of  significantly            reducing its  workforce.2   During this period,  Lawrence was            employed as an associate program manager and was working on a            defense  project  for  the  Canadian  government.    Lawrence            contends  that   he  was   working  forty-seven   hour  weeks            throughout  1988.      Northrop  concedes   that   Lawrence's            employment   performance,   at   all  relevant   times,   met            expectations.                        On September 2, 1988, Lawrence received an unsigned            notice  advising him  that  he was  being  placed on  layoff,            effective immediately.  The  notice indicated that the layoff            was  precipitated  by  business  conditions  necessitating  a            reduction in work force.  That same day, an internal Northrop                                            ____________________            2.  The record reflects that between 1986 and July 1988, just            prior  to  Lawrence's   layoff,  Northrop  had  reduced   its            workforce  from approximately 5,500  workers to approximately            4,500 workers.  The record further reflects that, at the time            of  Lawrence's  discharge,  twenty-one other  employees  were            either   terminated   or   transferred   out   of  Lawrence's            department.                                         -8-                                          8            memorandum entitled "Justification  for Organization  Lay-Off            Selection" was sent to  file.3  The memorandum stated:   "Mr.            Lawrence's selection  for lay-off from  Organization 4000  is            based upon the fact that his relative ranking in  performance            amongst  his  peers was  the  lowest  in Organization  4000."            Lawrence  was  fifty-five  years  old  at  the  time  of  his            termination.                      On January 26, 1989,  Lawrence filed with the Equal            Employment  Opportunity  Commission  ("EEOC")   an  affidavit            charging  that   his  termination  was  the   result  of  age            discrimination.  The EEOC  conducted an investigation and, on            November 28, 1989, issued its determination that no violation            of the ADEA had  occurred.  This determination was  upheld on            review, and Lawrence's  charge was dismissed.   On August 22,            1990, Lawrence instituted  the instant proceedings by  filing            his complaint in district court.            B.  Lawrence's Allegations            B.  Lawrence's Allegations            __________________________                      Lawrence's  complaint is  premised upon  the theory            that his termination was  a manifestation of a scheme  on the            part  of Northrop to  replace its older  workers with younger            workers.  In relevant part, the complaint asserts:                           5.    On  information   and  belief,                      sometime  in  1988,  prior to  September,                      Northrop  determined  to reduce  its work                                            ____________________            3.  The record  does not indicate whether  the memorandum was            placed  in Lawrence's personnel file or in a general Northrop            file.                                         -9-                                          9                      force and devised a lay-off program which                      was not  age-neutral but was  intended to                      rid  Northrop of its  older workers.   On                      information and belief, an element of the                      lay-off program was the discharge of both                      young and old workers and  the subsequent                      rehiring  of  the   best  of  the   young                      workers.                           6.   In August,  1988, there  were 4                      employees    in    Program    Management,                      including   Robert   Eisenberg   (Program                      Director,    about    age   43),    Frank                      D'Alexander  (Program Manager,  about age                      37),  Glenn Grotefeld  (Associate Program                      Manager,  about  age  30),  and  Lawrence                      (Associate Program Manager, age 55).  The                      time   of  all  4   employees  was  fully                      involved.                           7.  On  or about September  1, 1988,                      Robert  Eisenberg notified  Lawrence that                      he  was to  be  laid  off  effective  the                      following day.    On September  2,  1988,                      written  confirmation  of the  layoff was                      given to Lawrence. . . .                           8.   At the  same  time as  Northrop                      discharged  Lawrence, it  also discharged                      the   other  younger   Associate  Program                      Manager,   Glenn  Grotefeld.     However,                      within two weeks,  Northrop attempted  to                      rehire  Grotefeld.    On information  and                      belief, the "discharge" of  Grotefeld was                      never  intended to  be permanent  but was                      solely intended to obscure the  fact that                      the   lay-off   was  directed   at  older                      employees.      When  Grotefeld   refused                      employment because he had found  a better                      job, Northrop assigned an  employee named                      Michael Werwath, about age 32, to replace                      Grotefeld.                           9.    Within  days   of  discharging                      Lawrence, Northrop reassigned an employee                      named  Stanley  Piech, about  age  37, to                      replace  Lawrence  as  Associate  Program                      Manager  on  the  Canadian  project.   On                      information and belief, Stanley Piech had                      already been selected to replace Lawrence                                         -10-                                          10                      at the time of Lawrence's  discharge.  On                      information   and    belief,   Northrop's                      selection  of  Stanley  Piech to  replace                      Lawrence  was  principally  based on  his                      age.                      Northrop  filed  an answer  denying  each of  these            allegations  and asserting  that Lawrence  was  terminated as            part  of a  general  reduction in  force  in accordance  with            appropriate  employee evaluation  procedures.   Following the            close  of  discovery, Northrop  filed  a  motion for  summary            judgment,   reiterating  its   position  that   Lawrence  was            terminated as part of a reduction in force because he had the            lowest  performance rating  among his  peers and  because his            skills  were no  longer  needed.   Northrop's motion  further            asserted  that  the  allegations   set  forth  in  Lawrence's            complaint  were  insufficiently  supported  to  forestall the            proper entry of summary judgment in its favor.                      Lawrence responded to the  motion like the Hydra to            a  sword.  Apparently  submitting to the  decapitation of the            contentions  animating   his  complaint,  Lawrence,   in  his            opposition memorandum, made no  mention either of  Northrop's            alleged plan to fire and then rehire its  young workers or of            Glenn  Grotefeld.    Further, though  continuing  to  protest            generally Northrop's eventual  reassignment of Stanley  Piech            to the  Canadian project,  Lawrence made  no real  attempt to            demonstrate how such reassignment might have run afoul of the            ADEA.   Instead,  Lawrence relied  primarily on  two freshly-                                         -11-                                          11            spawned  theories,  asserting that  there  existed sufficient            evidence  for a trial  on whether his  low performance rating            had  been   (1)  arrived   at,  or   (2)  interpreted   in  a            discriminatory manner.   Specifically, Lawrence alleged  that            he was dismissed on  the basis of a performance  rating which            had been downgraded, or  "leveled," from a 4.0 to a  3.0 (out            of 6.0), while  both a younger associate program manager with            a non-leveled performance  rating of 3.97, Sheryl  DeStefano,            and a younger program  manager who had never been  evaluated,            Mr. Dahlstrom,4  were retained.5  Lawrence  also made passing            reference  to  certain  documents  obtained  during discovery            which,  in his view, showed that he was "targeted" for layoff            at a  time when he did not have the lowest performance rating            among  his  peers.     In  conjunction  with  his  opposition            memorandum,  Lawrence  submitted several  deposition excerpts            and unexplained discovery documents.                      The  district  court  entered  summary  judgment in            Northrop's favor.   After  a herculean effort  at summarizing            Lawrence's  evidence  and  assertions, the  court  found that            Lawrence had met his prima  facie burden at stage one of  the            McDonnell Douglas  framework by  demonstrating that  at least            _________________                                            ____________________            4.  The record does not reveal Mr. Dahlstrom's first name.            5.  The record  reflects that  from May through  September of            1988,  Northrop  ordered  that  the  performance  ratings  of            employees  in Lawrence's division be leveled so as to reflect            the division's poor overall performance.                                         -12-                                          12            one  younger associate  program manager  was retained  at the            time  he  was  laid off.    The  court  then determined  that            Northrop  had met  its  stage two  burden  of articulating  a            nondiscriminatory  reason for Lawrence's discharge.  Finally,            without  specifically  stating  whether Lawrence  had  made a            sufficient  showing to  raise  the question  of pretext,  the            court  ruled  that, at  stage  three  of the  burden-shifting            analysis, Lawrence had not presented  sufficient evidence for            a reasonable trier of fact to infer that the decision to fire            him was motivated by age animus.                      On appeal, Lawrence challenges the district court's            view  of the evidence at stage  three.  In so doing, Lawrence            points to three things which he believes support an inference            of age discrimination and warrant a trial:  (1) the retention            of  DeStefano  and   Dahlstrom;  (2)   the  documents   which            purportedly  show that he was  targeted for layoff  at a time            when  he did not have the lowest performance rating among his            peers;  and (3)  his  eventual replacement  with the  younger            Stanley Piech.  We discuss each in turn.                                         IV.                                         IV.                                         ___                                      DISCUSSION                                      DISCUSSION            A.  The Retention of DeStefano and Dahlstrom            A.  The Retention of DeStefano and Dahlstrom            ____________________________________________                      In support of his claim of discrimination, Lawrence            first alleges  that Northrop leveled  his performance  rating            from a  4.0 to a 3.0  and then dismissed him  while retaining                                         -13-                                          13            DeStefano, who had a non-leveled performance rating of 3.97.             If true in its entirety, this allegation might give us pause.            However, the  record does not  support Lawrence's  contention            about DeStefano's performance rating.                      Simply put, Lawrence does  not indicate, nor can we            locate, any record evidence  demonstrating that DeStefano had            an  unleveled  performance  rating   of  3.97.    DeStefano's            performance   appraisal   only   states   that   she   "meets            requirements  very well."   It  does not contain  a numerical            rating.  Moreover, none  of the submitted deposition excerpts            bolsters  Lawrence's  claim.6    As such,  the  retention  of            DeStefano  at  the time  of  Lawrence's  discharge cannot  be            viewed as raising an inference of age discrimination.7                      Lawrence's allegation that the retention of program            manager Dahlstrom constitutes evidence of age animus does not                                            ____________________            6.  Indeed, the  only place  in the  record where  the number            3.97  appears is when, in  the course of  deposing a Northrop            employee,  Lawrence's   counsel  seems  to   state  that  the            DeStefano appraisal  contains a  rating of  3.97.   As  noted            above, however, the appraisal contains no such rating.               7.  Even  were   we  to  accept  Lawrence's  contention  that            DeStefano  did have a non-leveled rating of 3.97, it does not            seem that this  fact would help  Lawrence's cause.   Although            Lawrence's  performance appraisal  contains  a rating  of 4.0            crossed  out by  the  letter "X"  and  replaced with  a  3.0,            followed by a  notation explaining that  the change was  made            pursuant  to   the  leveling  policy,  it   looks  as  though            Lawrence's rating  was rounded up  to a  4.0.  The  raw score            next to the box containing the rating is 127/32, which equals            3.968.   Thus, it appears that  Lawrence's actual non-leveled            rating,  when  carried out  the  relevant  number of  decimal            places, is less than 3.97.                                         -14-                                          14            require extended discussion.  As noted above, where, as here,            a plaintiff fails to show that the employer did not treat age            neutrally in reducing its  work force, a prima facie  case is            established only where a plaintiff demonstrates "that younger            persons were  retained in the  same position."   Connell, 924                                   __ ___  ____ ________     _______            F.2d at 1173 n.5 (quoting Hebert, 872 F.2d at 1111) (emphasis                                      ______            added).   The record reflects  that Lawrence was an associate            program  manager, and not a  program manager, at  the time of            his  termination.8  Accordingly,  the retention  of Dahlstrom            as program manager, in  the context of the other  evidence in            this  case, is not significantly probative on the question of            whether the dismissal of Lawrence violated the ADEA.            B.  The Targeting Documents            B.  The Targeting Documents            ___________________________                      Lawrence's  second argument,  generously construed,            is  that certain documents in  the record reveal  that he was            targeted for layoff at a time when he did not have the lowest            performance rating among his peers.9  The  record contains an                                            ____________________            8.  Lawrence has  not alleged,  nor does the  record suggest,            that the  positions of associate program  manager and program            manager were, in essence, the same.            9.  Indeed, Lawrence's  brief makes such a  cursory reference            to  these documents  that a  strong case  could be  made that            Lawrence has waived the  issues raised by them.   See Elgabri                                                              ___ _______            v.  Lekas, 964  F.2d 1255, 1261  (1st Cir.  1992) ("`[I]ssues                _____            adverted to  in a  perfunctory manner, unaccompanied  by some            effort  at  developed  argumentation,  are  deemed waived.'")            (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),                     _____________    _______            cert. denied, 494 U.S. 1082 (1990)).  Although it is  a close            _____ ______            question, we  feel  that Lawrence  has  done just  enough  to            preserve his argument.  Accordingly, we address its merits.                                          -15-                                          15            April  21,  1988,  memorandum  listing the  names  of  eleven            employees  who are described  as "available  for reassignment            and/or layoff."  Lawrence's  name appears on that list.   The            record  also includes  two undated  documents that  appear to            have  been  prepared  by  Northrop in  order  to  assess  its            possible  liability in  discrimination suits  ("the liability            documents").     At   oral   argument,   Lawrence's   counsel            represented,   without   substantiation,  that   the  undated            documents must have been  prepared after the April 21,  1988,            memorandum  but  before  Lawrence's  May  1988  evaluation.10            The first of  the two documents bears the  following notation            next to Lawrence's name:                      -age  liability as  does not  have lowest                      rated  performance   when  compared  with                      other's [sic] in job  title in unit or in                      [Organization]  4000.   Some  reviews are                      leveled  and  some are  not leveled.   Of                      seven  Prog.  Mgr.  Assoc.  in  4000, the                      three oldest are targeted for layoff.            The second document also contains remarks next to Lawrence's             name:                      -Age 54 yrs. old.                      -Does not have lowest review in unit.                      -Three individuals in unit, not affected,                       hold lower ratings of 3.2, 3.3, and 3.4.                                            ____________________            10.  Apparently, the second of the two documents was prepared            prior to  Lawrence's May  1988, evaluation,  as it  notes his            most  recent  review  as  having  taken place  in  May  1987.            Moreover, both  documents appear to have  been prepared after            December  1987, as  each  contains references  to evaluations            performed in that month.                                         -16-                                          16                      Lawrence's argument on the basis of these documents            has some  surface appeal.  Closer  scrutiny, however, reveals            that it begs the question.   We first note that Lawrence does            not  argue that  employees  listed  on  the April  21,  1988,            memorandum were  targeted on  the basis of  their performance            ratings.  However, even  if we assume arguendo that  this was                                                  ________            the  case, and even if we assume that the liability documents            were created in response to  the April 21, 1988,  memorandum,            and  even if we accept that they reflect that Lawrence indeed            was targeted  for layoff at a  time when he did  not have the            lowest performance evaluation among  his peers, such facts do            not  tend to  prove  age discrimination  on Northrop's  part.            Lawrence does not allege, nor does the record indicate, that,            at  the  time these  documents  were  created, at  least  one            younger associate program manager  with an identical or lower                    _________ _______ _______            performance  rating  than  Lawrence  was  not   targeted  for                                                      ___            layoff.11   Put  another  way, Lawrence  has neither  alleged            nor  demonstrated that  there  existed at  least one  younger            associate  program   manager  with  an  identical  or  lesser            performance rating whose name did not appear on the April 21,            1988,  memorandum.12     As  we  stated  above,   it  is  the                                            ____________________            11.  The fact that three individuals in his unit may have had                                                 __ ___ ____            lower ratings does not undermine this point.            12.  The record  reflects  that Lawrence  was  afforded  full            discovery   rights   and   provided  with   access   to   the            documentation  that  should, through  diligent investigation,            have revealed the existence of any such person.                                         -17-                                          17            plaintiff's burden  at stage  three of the  McDonnell Douglas                                                        _________________            framework  to  present  sufficient  evidence  for a  rational            factfinder to infer discriminatory animus  on the part of the            employer.    See Mesnick,  950 F.2d  at  823.   Without more,                         ___ _______            Lawrence's contention  that he was  targeted for layoff  at a            time when he did not have the lowest performance rating among            his peers is insufficient to meet this burden.13            C.  The Replacement of Lawrence with Piech            C.  The Replacement of Lawrence with Piech            __________________________________________                      Finally, Lawrence argues  that Northrop's  decision            to "replace"  him with the younger  Piech was discriminatory.            Leaving aside  the question of whether  this replacement ever            took  place, we note that Lawrence does not allege, let alone            demonstrate,  that  Piech  possessed  qualifications  roughly            similar  to his  own.14   Such a  demonstration is,  however,            part of  the prima  facie showing a  discrimination plaintiff            must make when alleging that his/her replacement violated the                                            ____________________            13.  Nor can the fact that the three oldest associate program            managers in Organization 4000 were targeted for layoff itself            be   viewed  as   giving  rise   to  an   inference  of   age            discrimination.  Northrop was  in the midst of  a significant            force reduction by mid-1988.   Indeed, twenty-one people from            Lawrence's  department were either  terminated or transferred            at the time of the September 2, 1988, layoff.  In the face of            such sweeping and comprehensive personnel changes, and  where            there has been no allegation  or demonstration that at  least            one younger and identically  or lower rated associate program            manager  was not targeted for  layoff, we simply  do not view            the  aforementioned   targeting   as  being   so   inherently            suspicious as to mandate a trial.            14.  We further  note that the record  indicates that Piech's            qualifications were superior to those of Lawrence.                                         -18-                                          18            ADEA.   See Connell, 924 F.2d at  1172.  Thus, in the context                    ___ _______            of this case,  we do not view Northrop's  alleged replacement            of  Lawrence with  Piech  as significantly  probative of  age            bias.                                          V.                                          V.                                          __                                      CONCLUSION                                      CONCLUSION                      In  sum,  we  do  not  find  persuasive  Lawrence's            assertion  that  there  exists  sufficient  evidence  in this            record for  a reasonable factfinder to  infer that Northrop's            decision   to    discharge   him   was   motivated   by   age            discrimination.   Accordingly,  we  agree  with the  district            court  that Lawrence failed to carry his burden at step three            of the McDonnell Douglas burden-shifting  framework, and rule                   _________________            that summary  judgment  properly was  entered  in  Northrop's            favor.                      Affirmed.  Costs to appellee.                      Affirmed.  Costs to appellee.                      ____________________________                                         -19-                                          19
