
USCA1 Opinion

	




          August 17, 1994                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-2296                                   JIMMIE E. WOODS,                                Plaintiff, Appellant,                                          v.                              FRICTION MATERIALS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The following  references to  "Mass. Gen.  L. ch.  93A" should  be        changed to "Mass. Gen. L. ch. 93":            Page 5, first full  , l. 9            Page 6, l.10            Page 8, l.11            Page 20, l.5, l.7, l.17                                 ____________________        _____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The  remaining two  panelists therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).        August 4, 1994      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________        No. 93-2296                                   JIMMIE E. WOODS,                                Plaintiff, Appellant,                                          v.                              FRICTION MATERIALS, INC.,                                 Defendant, Appellee.                                     ____________                                     ERRATA SHEET            The opinion of this court issued on July  29, 1994, is amended  as        follows:            Page 15, second line  from the bottom  of the page:  Delete  "the"        after "than."                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-2296                                   JIMMIE E. WOODS,                                Plaintiff, Appellant,                                          v.                              FRICTION MATERIALS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Frederick T. Golder with whom Bernstein,  Golder & Miller P.A. was            ___________________           ________________________________        on brief for appellant.            Samuel  A. Marcosson, James  R. Neely, Jr., Gwendolyn Young Reams,            ____________________  ____________________  _____________________        and  Vincent  J.   Blackwood  were  on  brief  for   Equal  Employment             _______________________        Opportunity Commission, amicus curiae.            Dan  T.  Carter with  whom  James  Allan  Smith,  Smith, Currie  &            _______________             ___________________   ________________        Hancock, Richard W.  Gleeson, and Gleeson & Corcoran were on brief for        _______  ___________________      __________________        appellee.                                 ____________________                                    July 29, 1994                                 ____________________        _____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The  remaining two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                      STAHL, Circuit Judge.  Plaintiff  Jimmie  E.  Woods                             _____________            filed a complaint charging defendant Friction  Materials Inc.            ("FMI") with  illegal race, age,  and handicap discrimination            in violation of state and federal law.  Woods now appeals the            district court grant of summary judgment in favor of FMI.  We            affirm.                                          I.                                          I.                                          __                        FACTUAL FINDINGS AND PRIOR PROCEEDINGS                        FACTUAL FINDINGS AND PRIOR PROCEEDINGS                        ______________________________________                      Woods, a 54 year-old, handicapped, African-American            male,  was employed between 1961  and 1986 by  PT/BT, a small            group  of  interrelated  brake  manufacturing   companies  in            Lawrence, Massachusetts.  During his tenure with PT/BT, Woods            was promoted twice, to  the position of foreman in  1968, and            to  the position  of supervisor  in 1970.   In  1986, FMI,  a            wholly owned subsidiary  of Echlin, Inc. ("Echlin")  acquired            the  assets of PT/BT.   Thereafter, Wood continued working at            FMI as a production foreman without a break in service.                      In  February of  1987, Echlin, concerned  about the            financial  condition of  the  newly formed  FMI, fired  FMI's            president  and  manufacturing  manager.   Three  days  later,            Echlin  appointed  Patrick  Healey   to  the  top  managerial            position at FMI,  that of division  manager.  Under  Healey's            leadership, FMI began to  retool and update its manufacturing            processes.                                         -2-                                          2                      As  a  result,  Woods   and  the  other  three  FMI            production  foremen in  the block-making  department (Richard            Bond, a 45 year-old  caucasian male, Paul Harris, a  65 year-            old  African-American male,  and Peter  Lane, an  50 year-old            African-American  male)  experienced  an  increase  in  their            duties and  responsibilities.  According to  Woods, FMI began            to  expect  more  from  its employees  and  the  supervisor's            position  became more complicated  than it  had been  when he            worked at  PT/BT.  Deposition of  J. Woods at 28.   After the            reorganization began,  of the four supervisors  in the block-            making department, Bond  was terminated for  poor performance            and Lane  was demoted to  a non-supervisory position.   Woods            initially  fared well at FMI, as evidenced by a November 1987            written evaluation  in  which Superintendent  Elvin  Valentin            gave Woods  an overall rating of  three on a scale  of one to            five.    In  1988,  however, Woods  learned  that  Valentin's            opinion of his  work had  diminished.   In a  ten to  fifteen            minute  review,   Valentin  told  Woods  that   both  he  and            manufacturing  manager Ray Shaffer (Woods' direct supervisor)            felt that Woods was not performing up to his capability, that            he needed to improve his scheduling and interpersonal skills,            and that he would not be receiving a raise. Id. at 47-49.                                                        ___                      In October  1988, Woods  was injured in  a non-work            related automobile  accident.  The  resulting injuries forced            Woods  to take an extended medical leave of absence from FMI.                                         -3-                                          3            By  the end  of  February 1989,  Woods  had used  all of  his            medical and  vacation  leave time  and  still was  unable  to            return  to work.  Pursuant to FMI's policy of terminating all            employees who  are unable  to  work after  the expiration  of            their leave  time, notwithstanding the ongoing  nature of the            ailment, FMI terminated Woods.  Woods does not  challenge his            termination.                        By  1989, Woods  was physically  able to  return to            work.   In late 1989,  FMI began interviewing  candidates for            the position of production foreman for a new production line.            Woods, along with approximately seventy-four  others, applied            for one  of four  available positions.   Of  the seventy-five            applicants,  personnel  manager   Arthur  McKew  decided   to            interview eight, including Woods.   The eight applicants were            interviewed  by  two  of  FMI's  production  superintendents,            Warren  Kappeler  and  Garnet  Wilson1,  who   evaluated  the            candidates  on their  manufacturing and  production knowledge            and comprehension, supervisory  skills, and general demeanor.                                            ____________________            1.  Wilson replaced Valentin who,  in July 1989, was arrested            by  the Massachusetts  State Police  and terminated  from his            employment for theft of FMI funds.  McKew aff. at 2.  This is            only  important because  of  Woods' allegation  that Valentin            made  racist remarks  to  Woods while  they worked  together.            Valentin, however, played  no role in  FMI's decision not  to            hire Woods since  he was  no longer employed  by the  company            when the employment decisions were made.  See Medina-Munoz v.                                                      ___ ____________            R.J. Reynolds Tobacco  Co., 896  F.2d 5, 10  (1st Cir.  1990)            __________________________            ("The  biases of  one  who neither  makes nor  influences the            challenged  personnel  decision  are  not  probative  in   an            employment discrimination case.").                                         -4-                                          4            Both Kappeler and  Wilson assessed Woods' supervisory  skills            and understanding  of production  processes as weak  and felt            that on  balance these weaknesses outweighed  Woods' years of            experience.  Both  men recommended that  Woods not be  hired.            McKew stated  that he  ultimately decided  not to  hire Woods            based  upon the  interviews and  Woods' previous  performance            evaluations.  In his deposition, McKew conceded that although            Woods could have filled one of the open positions, he was not            hired because there  were others  who he found  to be  better            qualified.   The  positions  were thereafter  filled by  four            younger,  non-handicapped, caucasian  males.   Woods concedes            that he is  unaware of the qualifications  possessed by those            ultimately hired.                      On March 19, 1990, Woods filed a complaint with the            Massachusetts Commission Against Discrimination ("MCAD").  On            May  7,  1990,  Woods  commenced  this  action  by  filing  a            complaint  in the  Superior  Court of  Massachusetts for  the            County  of Middlesex.   In  his complaint, Woods  charged FMI            with  age  discrimination in  violation  of  the Federal  Age            Discrimination and  Employment Act ("ADEA"), 29  U.S.C.   621            et  seq.,  and  with  age and/or  race  and/or  color  and/or            __  ____            handicap  discrimination in  violation of  Mass. Gen.  L. ch.            151B and Mass. Gen. L. ch. 93    102 and 103.                        After removing  the action to  the federal district            court  in  Massachusetts,  FMI  filed a  motion  for  summary                                         -5-                                          5            judgment  on all claims, claiming that Woods had not made out            a prima facie case of discrimination because he had not shown            that  he was qualified for  the position sought,  and, in the            alternative, that  FMI's decision not to hire  Woods had been            made for  nondiscriminatory reasons,  i.e., those hired  were            better  qualified.  Woods filed  a motion in  opposition.  On            October 1, 1993, the district court issued a written order in            which  it awarded  summary judgment  in FMI's  favor, finding            that although  Woods had established  a prima facie  case, he            had  failed  to  allege   sufficient  facts  to  rebut  FMI's            articulated nondiscriminatory  reasons  under both  ADEA  and            Mass. Gen. L. ch. 151B.  The district court further held that            Woods'  claim under  Mass. Gen.  L. ch.  93 was  preempted by            Mass. Gen.  L. ch. 151B.  It is from this judgment that Woods            now appeals.                                          II.                                         II.                                         ___                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      We review grants of  summary judgment de novo, and,                                                            __ ____            like the district court, are obliged to review the facts in a            light  most favorable  to the  non-moving party,  drawing all            inferences in the non-moving party's favor.  LeBlanc v. Great                                                         _______    _____            Am. Ins. Co., 6 F.3d 836,  841 (1st Cir. 1993), cert. denied,            ____________                                    ____  ______            114 S. Ct. 1398 (1994).  Summary judgment is appropriate when            "the pleadings, depositions,  answers to interrogatories, and            admissions  on file,  together with  the affidavits,  if any,                                         -6-                                          6            show  that there is no genuine  issue as to any material fact            and that  the moving  party is  entitled to a  judgment as  a            matter  of law."    Fed.  R. Civ.  P.  56(c).   "`[T]he  mere            existence of some alleged factual dispute between the parties            will not  defeat an  otherwise properly supported  motion for            summary judgment; the requirement is that there be no genuine                                                                  _______            issue of  material  fact.'"   Medina-Munoz,  896  F.2d  at  8                      ________            ____________            (emphasis in original)  (quoting Anderson  v. Liberty  Lobby,                                             ________     _______________            Inc., 477  U.S.  242, 247-248  (1986)  (citations  omitted)).            ____            Moreover,  summary judgment  may  be appropriate  "`[e]ven in            cases  where elusive concepts such as motive or intent are at            issue,  . .  .  if the  non-moving  party rests  merely  upon            conclusory    allegations,    improbable   inferences,    and            unsupported speculation.'"   Goldman  v. First Nat'l  Bank of                                         _______     ____________________            Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)  (quoting Medina-            ______                                                _______            Munoz,  896 F.2d  at 8).    Finally, Fed.  R.  Civ. P.  56(c)            _____            "mandates the entry  of summary  judgment . .  . upon  motion            against a party  who fails  to make a  showing sufficient  to            establish  the  existence of  an  element  essential to  that            party's case, and on which that party will bear the burden of            proof at trial."   Celotex  Corp. v. Catrett,  477 U.S.  317,                               ______________    _______            322-23 (1986).               III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________                      On  appeal,  Woods  claims,  inter  alia,  that the                                                   _____  ____            district court  misapplied  the  respective  burdens  of  the                                         -7-                                          7            parties under both federal and state law.  More specifically,            Woods argues that the district court erred in ruling that the            burden  shifting framework  as  limned in  McDonnell  Douglas                                                       __________________            Corp.  v. Green, 411 U.S. 792, 802-05 (1973) and expounded in            _____     _____            St. Mary's Honor  Center v. Hicks, 113 S. Ct. 2742 (1993) (1)            ________________________    _____            may require plaintiff to present more than a prima facie case            in order  to  survive  a motion  for  summary  judgment,  (2)            requires  the employer to do no more than simply articulate a            nondiscriminatory  reason for its  employment action, and (3)            requires plaintiff to present evidence to  show not only that            the  employer's proffered reason  was a pretext,  but that it            was a  pretext for  illegal discrimination.   Moreover, Woods                           ___            claims that the  district court erred  in analyzing both  the            federal  and state  claims  together under  the same  federal            standard and further erred in finding that Woods claims under            Mass.  Gen. L. 93    102 and  103 were preempted.  We address            each argument in turn.            A.  Federal Claim            _________________                      In  an ADEA  failure to  hire  discrimination suit,            plaintiff  bears  the  ultimate   burden  of  persuading  the            factfinder that the  employer illegally discriminated against            plaintiff  by  refusing to  hire  plaintiff on  the  basis of            his/her age.  See Lawrence v. Northrop Corp., 980 F.2d 66, 69                          ___ ________    ______________            (1st  Cir. 1992).  Where  there is little  direct evidence of            age discrimination,  plaintiff may rely upon  the three stage                                         -8-                                          8            burden-shifting  framework  set forth  in  McDonnell Douglas.                                                       _________________            See  id. at  68;  Goldman,  985 F.2d  at  1117.   Under  this            ___  ___          _______            framework, plaintiff  initially must establish  a prima facie            case of discrimination, i.e., in a failure to hire situation,            plaintiff must show  that (1) s/he is a member of a protected            class, (2) s/he applied and was qualified for the position in            question, (3)  that despite his/her qualifications,  s/he was            rejected,  and  (4)  that,  after   rejection,  the  position            remained open  and the employer continued  to seek applicants            from  persons  of  the  complainant's  qualifications.    See                                                                      ___            McDonnell  Douglas,   411  U.S.  at  802.     Once  plaintiff            __________________            successfully establishes  a prima facie case,  it is presumed            that    the   employer    engaged   in    impermissible   age            discrimination.  See  Texas  Dept. of  Community  Affairs  v.                             ___  ___________________________________            Burdine, 450 U.S. 248, 254 (1981).              _______                      In the  second stage, the employer  must rebut this            presumption by articulating a  legitimate, non-discriminatory            reason for its  decision not to hire plaintiff.   See Vega v.                                                              ___ ____            Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993).  "The            _____________________            employer's  burden at this stage is merely one of production;            the burden  of persuasion remains plaintiff's  at all times."            Lawrence,   980   F.2d   at    69.      Once   a   legitimate            ________            nondiscriminatory  reason  is  articulated,  the  presumption            created  by plaintiff's prima facie case disappears.  Id.  At                                                                  ___            the third and final  stage, plaintiff must produce sufficient                                         -9-                                          9            evidence,  direct  or  indirect,  to show  that  the  reasons            advanced  by  the  employer  constitute a  mere  pretext  for            unlawful discrimination.   See LeBlanc,  6 F.3d at  842.   To                                       ___ _______            meet  this  burden, the  claimant  must prove  both  that the                                                           ____            employer's   articulated   reason   is   false,    and   that            discrimination  was  the  actual reason  for  its  employment            action.  See Hicks, 113  S. Ct. at  2749 n.4.2   If plaintiff                     ___ _____            "fails to show `pretext,' [for discrimination] the challenged            employment action  `must stand.'"   Id. at 2752  n.6 (quoting                                                ___            McDonnell Douglas, 411 U.S. at 807).             _________________                      Of course, the framework described above applies to            a full bench trial, as was the case in Hicks.  As we noted in                                                   _____                                            ____________________            2.  Woods misstates the law when he argues without citing any            authority that  "[i]f the plaintiff shows  that an employer's            reasons are  not credible,  he resurrects the  presumption of            unlawful discrimination,  since in  the absence of  any known            reasons for  the employers decision, courts  presume that the            employer was motivated by discriminatory reasons."  In Hicks,                                                                   _____            the Court addressed this precise issue and held that once the            defendant                       has succeeded  in carrying its  burden of                      production,    the   McDonnell    Douglas                                           ____________________                      framework  --  with its  presumptions and                      burdens  -- is  no longer  relevant.   To                      resurrect  it later,  after the  trier of                      fact   has   determined  that   what  was                      `produced'   to   meet   the  burden   of                      production is not credible, flies  in the                      face  of our  holding in Burdine  that to                                               _______                      rebut  the  presumption `[t]he  defendant                      need not persuade the  court that it  was                      actually   motivated  by   the  proffered                      reasons.'            Hicks, 113 S. Ct. at 2749 (quoting Burdine, 450 U.S. at 254).            _____                              _______                                         -10-                                          10            LeBlanc, however, the Hicks decision set forth the respective            _______               _____            burdens which  need to be met in order for a party to survive            a motion for summary judgment:                      In  the context  of  a  summary  judgment                      proceeding, Hicks requires that, once the                                  _____                      employer   has  advanced   a  legitimate,                      nondiscriminatory  basis for  its adverse                      employment   decision,   the   plaintiff,                      before  becoming  entitled  to bring  the                      case before the trier  of fact, must show                      evidence  sufficient  for the  factfinder                      reasonably    to   conclude    that   the                      employer's decision to  discharge him  or                      her   was   wrongfully   based  on   age.                      Goldman, 985 F.2d at 1117;  Lawrence, 980                      _______                     ________                      F.2d at 69-70;  Villanueva [v.  Wellesley                                      __________      _________                      College],  930  F.2d [124,]  127-28 [(1st                      _______                      Cir.),  cert.  denied,  112  S.  Ct.  181                              _____  ______                      (1991)]; Connell [v. Bank of Boston], 924                               _______     ____ __ ______                      F.2d  [1169,]  1172  [(1st  Cir.),  cert.                                                          _____                      denied,  501 U.S. 1218  (1991)].  "Direct                      ______                      or  indirect  evidence of  discriminatory                      motive  may do,  but  `the evidence  as a                      whole  . .  .  must be  sufficient for  a                      reasonable factfinder to  infer that  the                      employer's decision was motivated  by age                      animus.'"    Goldman,  985  F.2d  at 1117                                   _______                      (quoting  Connell,  924  F.2d 1172  n.3).                                _______                      Thus, the plaintiff cannot  avert summary                      judgment  if  the  record  is  devoid  of                      adequate    direct    or   circumstantial                      evidence of discriminatory animus  on the                      part of  the employer.   See id.  at 1118                                               ___ ___                      (citations and footnote omitted).            LeBlanc, 6 F.3d at 843.3            _______                                            ____________________            3.  In  its   amicus  curiae  brief,   the  Equal  Employment            Opportunity Commission  (the "EEOC"),  urges us to  hold that            "an employment discrimination  plaintiff may survive  summary            judgment by establishing a prima facie case of discrimination            and  showing a  genuine  issue of  fact  on the  question  of            whether  the employer's asserted  explanation for its actions            is worthy of credence."  In other words, the EEOC  would like            a  blanket  statement  that   once  evidence  of  pretext  is            proffered, that evidence along with the prima facie case will                                         -11-                                          11                      1.  Stage One - Woods' Prima Facie Case                      1.  Stage One - Woods' Prima Facie Case                      _______________________________________                      We   agree  that  Woods   has  provided  sufficient            evidence  to establish a prima  facie case.   As the district            court stated, Woods has shown that                      [h]e  is  a  member  of  [the]  protected                      class[]  .  .  .  within  the meaning  of                      applicable law.   His long  experience in                      the  industry  and  history   of  largely                      favorable  reviews,  and McKew's  opinion                      that he was qualified  to fill one of the                                            ____________________            at all times shield plaintiff from adverse summary judgments.            The EEOC cites as authority the following passage from Hicks,                                                                   _____            in which the Court specifically noted that                       [t]he   factfinder's  disbelief   of  the                      reasons  put  forward  by  the  defendant                      (particularly if disbelief is accompanied                      by   a   suspicion  of   mendacity)  may,                                                           ___                      together  with the elements  of the prima                      facie case, suffice  to show  intentional                      discrimination.              Hicks, 113  S. Ct  at 2749  (emphasis supplied).   We  do not            _____            agree that the Court's language supports the EEOC's position.            Rather,  this quoted  statement simply  makes clear  that the            Supreme Court envisioned  that some cases exist where a prima            facie case and  the disbelief  of a pretext  could provide  a                                                         _____            strong enough  inference of  actual discrimination  to permit            the fact-finder to find for the plaintiff.  Conversely, we do            not  think that the  Supreme Court meant  to say  that such a            finding would  always be permissible.   (For example, suppose                           ______            an employee made out  a truly bare-bones prima facie  case of            age  discrimination, and  the  employer  responded  that  the            employee  lacked the necessary  skills for the  job.  Suppose            also  that unrefuted evidence showed  that the response was a            pretext,  because  the employer  had  fired  the employee  to            conceal  the employer's own acts of embezzlement.  In such an            instance, there would be a prima facie case at the outset and            a  disbelieved  pretext,  but  we  think  it  plain  that  no            reasonable  jury  could find  age  discrimination  on such  a            record.)   The  strength  of the  prima  facie case  and  the            significance of  the disbelieved pretext will  vary from case            to case depending on the circumstances.  In short, everything            depends on the individual facts.                                         -12-                                          12                      openings,  has created at least a genuine                      issue  as to  his  ability  to  meet  the                      employer's   legitimate  expectations.                         Woods was denied  a supervisory  position                      by  FMI.    In  addition,  [FMI]  has not                      offered evidence to  remove from  dispute                      the   issue  whether   he  is   about  as                      qualified  as the  individuals ultimately                      hired.            Therefore,  we turn our attention to  the question of whether            FMI has satisfied  its burden of production by articulating a            legitimate non-discriminatory  reason  for refusing  to  hire            Woods.                      2.  Stage Two - FMI's Articulated Nondiscriminatory                      2.  Stage Two - FMI's Articulated Nondiscriminatory                      ___________________________________________________            Reason            Reason            ______                      FMI offers  two interrelated reasons for not hiring            Woods.  Basically, FMI contends that Woods was not  qualified            to hold a supervisory  position in the new and  retooled FMI,            and that  in the  alternative,  even if  he was  found to  be            minimally qualified, that  he was not  as qualified as  those            ultimately hired.  In support of these claims, FMI introduced            the affidavits  of Healey, McKew,  Wilson, and Kappeler.   In            his statement, Healey recounted the changes he implemented to            make FMI financially competitive in the market and why Woods'            prior  experience  was  not  indicative  of  his  ability  to            competently fill the updated position of productions foreman.            Among the  changes, he noted  that the production  foremen in            particular were  given more responsibility  while losing some            of their  support systems  and that  "[i]n essence, FMI  went                                         -13-                                          13            from a relatively simple operation to a complex manufacturing            system   with   a   production   schedule   and  pre-planning            requirements."  Affidavit of  P. Healey at 8.   Healey stated            that Woods "had  a limited technical  knowledge of how  brake            parts were manufactured  . . . . a limited ability to trouble            shoot and generally displayed limited inclination and ability            to  be innovative."   Id. at 5.   Healey further  opined that                                  ___            Woods lacked "basic supervisory skills, including the ability            to plan work, to organize and to implement a production plan,            and  to motivate employees to  carry out the  plan," id., and                                                                 ___            that he "had  a great deal of difficulty in  planning for and            implementing the  coordination of the machinery, raw material            and workforce  assignments necessary  to produce  the product            mix and quantity required of his  shift," id. at 9.  Attached                                                      ___            to  Healey's affidavit is a  copy of an  undated and unsigned            evaluation, one which  was never shared with Woods because of            his  accident and subsequent inability to return to work.  In            the evaluation, both Healey  and Shaffer rated Woods' overall            performance in the second  to lowest category, while awarding            Woods  the lowest grade with regard to enforcement of company            policies, acceptance of responsibility,  and decision-making.            Healey stated that as a result of this evaluation, management            intended to place  Woods on probationary status  prior to his            accident.                                           -14-                                          14                      Kappeler and Wilson stated in their affidavits that            based  upon  their interviews,  they  found  Woods  to be  an            unacceptable  candidate  for  a  foreman  position  with  FMI            because  of   his  weak   supervisory  skills  and   lack  of            understanding of production processes, such as sequencing and            planning.    Both  men  rated  Woods  as  having the  poorest            supervisory skills of all those interviewed.  Affidavit of W.            Kappeler  at  2;   Affidavit of  G. Wilson  at  1.   As noted            earlier,  McKew  also  stated  that  those  hired  were  more            qualified.   Thus, we find that  FMI successfully articulated            non-discriminatory   reasons  for   not  hiring   Woods,  and            therefore carried its burden of production.                      3.  Stage Three - Pretext for Discrimination                      3.  Stage Three - Pretext for Discrimination                      ____________________________________________                      Finally,  we  must  determine  whether   Woods  has            produced  sufficient evidence  to  raise a  genuine issue  of            material fact such as would permit a reasonable factfinder to            conclude  that FMI did not rely on its articulated reasons in            deciding  not   to  hire   Woods  and  that   FMI  unlawfully                                              ___            discriminated against Woods because  of his age.   Of course,            the most obvious  and relevant piece of evidence  Woods could            introduce to contradict  FMI's assertion that he  was not the            best qualified for the  position, would be evidence regarding            the  qualifications  of those  hired.    Woods, however,  has            neither introduced their respective resumes, nor argued to us            that he  was unable  to obtain  this information through  the                                         -15-                                          15            normal  discovery  channels.    In fact,  the  only  evidence            produced  by Woods to show that the other candidates were not            more  qualified  appears  in  his  own  deposition  where  he            concludes, after admitting  that he had  no knowledge of  the            qualifications of  those hired, that  he had twenty  years of            experience  in the  brake  manufacturing  industry while  the            other applicants had none.  Woods contends that on this basis            alone, a  reasonable  juror might  infer  that Woods  was  as            qualified  or  more  qualified  than those  who  were  hired.            Furthermore, he contends  that it would  be reasonable for  a            juror  to infer, on the  basis of this  evidence coupled with            his  prima  facie  case  that the  actual  reason  for  FMI's            decision not to hire Woods was because he was too old.  We do            not agree.     Although Woods has  presented enough  evidence            to permit  a reasonable factfinder  to determine that  he was            qualified to hold one of the  four positions on the basis  of            1)  his   experience,  2)  the   favorable  evaluations   and            promotions  Woods  received prior  to  his  accident, and  3)            McKew's   reluctant  admission   that  Woods   was  minimally            qualified  to hold  one of  the four  positions, there  is no            evidence  either to  rebut FMI's  assertion that  those hired            were more qualified, or to suggest that FMI's decision not to            hire  Woods  was in  any way  driven  by illegal  age animus.            Because Woods  has failed  to present sufficient  evidence to            permit  a   reasonable  factfinder   to   infer  that   FMI's                                         -16-                                          16            articulated   reason   was  a   pretext   for   unlawful  age            discrimination, his claim under ADEA must fail.             B.  State Law Claims            B.  State Law Claims            ____________________                      1.  Mass. Gen. L. ch. 151B                      1.  Mass. Gen. L. ch. 151B                      __________________________                      Next, Woods claims that  although Mass. Gen. L. ch.            151B4            employment  discrimination  claims  are   generally  analyzed            according to the  federal burden shifting regime  articulated                                            ____________________            4.  Mass. Gen. L. ch. 151B   4 provides in relevant part:                      It shall be an unlawful practice:                      1.   For  an  employer, by  himself  or his  agent,            because of the race, color, . . . to refuse to hire or employ            or  to bar or to discharge from employment such individual or            to discriminate against such individual in compensation or in            terms, conditions  or privileges of employment,  unless based            upon a bona fide occupational qualification.                      . . . .                       1B.  For  an  employer in  the  private sector,  by            himself or his agent,  because of the age of  any individual,            to refuse  to hire or employ  or to bar or  to discharge from            employment  such individual, or  to discriminate against such            individual  in  compensation  or   in  terms,  conditions  or            privileges  of  employment, unless  based  upon  a bona  fide            occupational qualification.                      . . . .                       16.  For  any  employer, personally  or  through an            agent,  to dismiss from employment or  refuse to hire, rehire            or  advance in employment  or otherwise discriminate against,            because  of  his  handicap,  any  person  alleging  to  be  a            qualified  handicapped  person,  capable  of  performing  the            essential functions of the  position involved with reasonable            accommodation, unless the  employer can demonstrate  that the            accommodation required to be  made to the physical or  mental            limitations of the  person would impose an  undue hardship to            the employer's business.            Mass. Gen. Laws Ann. ch. 151B   4 et seq., (West 1982 & Supp.            1994).                                         -17-                                          17            in  McDonnell Douglas,  the  Massachusetts  Supreme  Judicial                _________________            Court  (the "SJC"), has  placed a more  demanding burden upon            the  employer  than the  burden  imposed  by federal  law  as            interpreted  by this circuit.  Thus, Woods argues that it was            error  for the district court  to lump the  federal and state            claims together,  and that  under the proper  standard, FMI's            motion for summary judgment must fail.                      It is well established  "that the `state courts are            the ultimate  expositors of state law' and the federal courts            are bound by the constructions placed  upon state statutes by            state  courts  absent extreme  circumstances."   Rundlett  v.                                                             ________            Oliver, 607 F.2d  495, 500 (1st Cir.  1979) (quoting Mullaney            ______                                               ________            v.  Wilbur, 421  U.S.  684, 691  (1975)).   Moreover,  it  is                ______            equally well established that when interpreting Massachusetts            discrimination   statutes,   the  SJC   "may   look   to  the            interpretations  of analogous federal  statutes, but  are not            bound thereby."  August v. Offices Unlimited,  Inc., 981 F.2d                             ______    ________________________            576, 580 n.3 (1st Cir. 1992).                      While  the SJC  has used  the  three-part McDonnell                                                                _________            Douglas  analysis as a  guide in deciding  claims under Mass.            _______            Gen. L.  ch. 151B, it  has been somewhat  more severe in  its            treatment of  defendants.  In the  oft-cited Wheelock College                                                         ________________            v.  Massachusetts Comm'n. Against  Discrimination, 355 N.E.2d                _____________________________________________            309 (Mass. 1976), the SJC acknowledged that McDonnell-Douglas                                                        _________________            merely required the employer  to articulate a legitimate non-                                         -18-                                          18            discriminatory reason for its  action; but the court  went on            to say under ch.  151B, "that articulating a reason  in cases            of  this  kind requires  the  employer  to produce  not  only            evidence  of the  reason for its  action but  also underlying            facts  in support  of that  reason."   Id. at 313-14.   Other                                                   ___            Massachusetts cases follow the same course.5                      All this, however, is  academic in the present case            because  even  under the  more demanding  standard apparently            followed  in Massachusetts,  FMI  has done  more than  merely            articulate  a  reason.   It has  offered three  affidavits in            which those  concerned set forth their  assessment that Woods            was not as well  qualified as the four men  ultimately hired;            there is  a contemporaneous  evaluation of Woods  critical of            his skills that would presumably  be admissible as a business            record;  and there is an explanation from one of the affiants            that colorably explains how Woods could have done an adequate            job for  a  number of  years  without being  especially  well            qualified for  the more  demanding tasks contemplated  by the            new position in the  upgraded company.  Whether or  not these                                            ____________________            5.  See,  e.g., McKenzie  v. Brigham  and Women's  Hosp., 541                ___   ____  ________     ___________________________            N.E.2d  325,  326  (Mass. 1989)  (defendant  must  "advanc[e]            lawful grounds for  the action taken and  produce evidence of                                                 ___            underlying  facts  in  support  thereof")  (emphasis  added);            Trustees  of Forbes  Library v.  Labor Relations  Comm'n, 428            ____________________________     _______________________            N.E.2d 124, 128 (Mass.  1981) (employer could not say  merely            that employee was  fired for breaking rules,  but also "would            have to identify the rules and perhaps the occasions of their            violation, and  offer some indication that  it had considered            these   violations  in   its   deliberations  prior   to  the            discharge").                                         -19-                                          19            materials  taken  together are  a  substantial  case for  the            company--the  case would be a  stronger one if  more had been            said about the  qualifications of the four  men hired instead            of Woods--the materials certainly  amount to some evidence in            support of the articulated reason.                      Finally,  it does  not matter  in the  present case            whether Massachusetts turns out  to follow Hicks as construed                                                       _____            by the EEOC rather  than as we have  construed it.   Whatever            weight  a  disbelieved  reason  may  have  in  supporting  an            inference of discriminatory intent,  Woods has not created "a            genuine  issue  of  fact  on  the  question  of  whether  the            employer's asserted explanation for  its actions is worthy of            credence."  See p. 11,  n.3, supra.  The jury  might conclude                        ___              _____            that Woods was at least minimally qualified based on his past            record, but there is no evidence that the employer's asserted            explanation--that it found four other men  better qualified--            is pretextual.                      2.  Mass. Gen. L. ch. 93    102 and 103.                      2.  Mass. Gen. L. ch. 93    102 and 103.                      ________________________________________                      Lastly, Woods  claims that the district court erred            in  finding that  his Mass.  Gen. L.  ch. 93     102  and 103            claims  were preempted  by Mass.  Gen. L.  ch. 151B.   Woods'            argument, however,  is not  supported  in the  caselaw.   See                                                                      ___            Martin  v. Envelope Div. of  Westvaco Corp., No.  CIV. A. 92-            ______     ________________________________            30121-MAP,  1994 WL 162354, at  *11 (D. Mass.  Apr. 29, 1994)            (collecting federal and state  court cases holding that Mass.                                         -20-                                          20            Gen.   L.  ch.   151B  provides   the  exclusive   remedy  in            Massachusetts for employment related  discrimination claims);            see also DeFazio  v. Delta Air Lines, Inc., 849  F. Supp. 98,            ___ ____ _______     _____________________            103  (D. Mass. 1994) (holding that the reasoning of state and            federal  cases  which  find  Mass.  Gen.  L.  ch.  93     102            employment  discrimination claims  to be  preempted by  Mass.            Gen. L.  ch. 151B  "applies with  equal force to  [employment            discrimination] claims under Chapter 93,   103").                      In sum, we agree with the district court that                      the  adequacy  of  the remedies  afforded                      under  Mass.   Gen.  L.  ch.   151B,  the                      efficiency   of  a   uniform  legislative                      remedy, the importance  of giving  effect                      to the procedural prerequisites  of Mass.                      Gen. L.  ch.  151B, and  the  absence  of                      clear  guidance  from  the  Massachusetts                      Supreme Judicial Court,  all support  the                      finding that  Mass. Gen.  L. ch.  151B is                      the  exclusive  state   law  remedy   for                      employment discrimination complaints.            Woods  v. Friction Materials, Inc., 836 F. Supp. 899, 908 (D.            _____     ________________________            Mass. 1993) (citing Bergeson v. Franchi, 783 F. Supp. 713 (D.                                ________    _______            Mass. 1992)).                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing  reasons,   the  order  of  the            district  court  granting   summary  judgment  in  favor   of            defendant FMI is    Affirmed.                                _________                                         -21-                                          21
