
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1523                                  WILLIAM R. LEHMAN,                                Plaintiff, Appellant,                                          v.                     THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Bailey Aldrich,1 Senior Circuit Judge]                                            ____________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________               Scott A. Lathrop for appellant.               ________________               Alice E. Richmond with whom John Foskett and Deutsch               _________________           ____________     _______          Williams Brooks DeRensis Holland & Drachman were on brief for          ___________________________________________          appellee.                                 ____________________                                   January 22, 1996                                 ____________________                                        ____________________               1Of the United States Court of Appeals for the First          Circuit, sitting by designation.                      CAMPBELL, Senior Circuit Judge.  William R. Lehman,                                ____________________            a  former employee  of  the Prudential  Insurance Company  of            America ("Prudential"),  sued in  the district court  for age            discrimination  in  violation   of  the  Massachusetts   Fair            Employment  Practices Act, Mass. Gen.  L. ch. 151B,    4, and            for pension discrimination in violation of section 510 of the            Employment  Retirement  Income  Security  Act  ("ERISA"),  29            U.S.C.     1140.   The  district  court granted  Prudential's            motion  for  summary  judgment  on  both  counts  and  denied            plaintiff's motion for reconsideration.  Lehman appealed.  We            affirm.                                          I.                      We summarize the facts in the light most favorable            to Lehman, the party opposing summary judgment.  Barbour v.                                                             _______            Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).            _______________________                      Prudential hired Lehman in late 1974 to work as a            brokerage manager for the Greater New York Brokerage Agency.             In 1978, Lehman was relocated and promoted to agency manager            of the brokerage agency in Boston, Massachusetts.  In 1986,            Prudential expanded the territory of the agency run by            Lehman, making him director of its New England Brokerage            Agency which included all of New England except Fairfield            County in Connecticut.  Even after the expansion, the New            England agency was relatively small; nevertheless, it                                         -2-                                          2            performed very well under Lehman's direction.  In 1988,            Prudential created Pru Select, a separate sales division of            Prudential's life insurance business, to supervise the twelve            regional brokerage agencies.  Ira Kleinman was appointed            President of Pru Select, and he hired Roger Dunker as Pru            Select's Senior Vice President.  Dunker, along with Lehman's            prior supervisors, gave Lehman glowing performance reviews.                      Effective January 1, 1990, Pru Select revised its            pension plan by changing the commencement year for            calculating average eligible earnings from 1979 to 1983,            benefitting more senior employees, and by providing a 50%            annuity to widows without charge to the employee, benefitting            Lehman whose wife is fifteen years younger than he.  Lehman            projected the additional cost to Prudential of his pension,            in light of the above modifications, to be $500,000.                      Also at that time, Pru Select overhauled and            streamlined its brokerage agencies.  It consolidated its            twelve regions and directors into five regions and seven            directors.  In December of 1990, Dunker told Lehman that as            of April 1, 1991, his New England office was going to be            consolidated with the entire New York territory and part of            the New Jersey territory.  Lehman was to assume the duties            and compensation scheme of a brokerage manager and report to            the co-managing directors in the newly created Northeast            region: Robert Kiley, the pre-consolidation director of the                                         -3-                                          3            New York office, and the newly hired David Dietz.  According            to Lehman, his income potential as brokerage manager could be            less than 25% of what it had been as a director.  Lehman was            instructed to formulate his own unit of brokers in New            England from whom he could solicit business.  However, he did            not feel that this was possible, and after several meetings            in which he attempted to define his new unit, he wrote to            Dunker stating that the reassignment of his responsibilities            constituted involuntary termination motivated by age            discrimination.  Lehman then accepted an early retirement            package.                      Before the merger, Lehman, aged 61, directed the            New England office, and Kiley, aged 57, directed the New York            office.  After consolidation of the two offices into the new            Northeast region, the latter was headed jointly by Kiley and            the 42-year-old Dietz.  According to Lehman, the post-            consolidation directors had the same responsibilities as the            pre-consolidation directors, but instead of being            geographically separated, their responsibilities were now            more specialized.  The overall results of the various                                           regional consolidations were that four of the twelve pre-            consolidation directors, aged 63, 57, 57, and 42, were            appointed to director positions.  One of the pre-            consolidation directors, aged 62, retired.  The remaining            seven pre-consolidation directors, aged 61 (Lehman), 47, 45,                                         -4-                                          4            45, 45, 41, and 37, were demoted to brokerage managers.  The            three newly appointed directors were aged 42, 42, and 40.                                           II.                                         II.                      This court reviews the district court's grant of            summary judgment de novo.  Goldman v. First Nat'l Bank of                                       _______    ___________________            Boston, 985 F.2d 1113, 1116 (1st Cir. 1993).  Summary            ______            judgment is appropriate when the record, viewed in the light            most favorable to the nonmoving party, shows no genuine issue            of material fact, the moving party being entitled to judgment            as a matter of law.  Fed. R. Civ. P. 56(c);  United States v.                                                         _____________            Diebold, Inc., 369 U.S. 654, 655 (1962);  Lareau v. Page, 39            _____________                             ______    ____            F.3d 384, 387 (1st Cir. 1994).  "Even in cases where elusive            concepts such as motive or intent are at issue, summary            judgment may be appropriate if the nonmoving party rests            merely upon conclusory allegations, improbable inferences,            and unsupported speculation."  Medina-Munoz v. R.J. Reynolds                                           ____________    _____________            Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).            ___________                              Age Discrimination Claim                               Age Discrimination Claim                      Lehman alleges that his employer, Prudential,            unlawfully discriminated against him on the basis of his age,            in violation of Mass. Gen. L. ch. 151B,   4.1  Under                                            ____________________            1.  The Massachusetts age discrimination statute states in            relevant part:                                          -5-                                          5            Massachusetts law, discrimination claims are analyzed and            reviewed under a three stage order of proof.  See Wheelock                                                          ___ ________            College v. Massachusetts Comm'n Against Discrimination, 371            _______    ___________________________________________            Mass. 130, 355 N.E.2d 309, 313-14 (1976) (citing McDonnell                                                             _________            Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).  The first            _____________    _____            stage consists of ascertaining whether the plaintiff has made            out a prima facie case of discrimination.  If so, the burden            shifts to the employer to provide a legitimate,            nondiscriminatory reason for its employment decision.  In the            third stage, the plaintiff must establish either that the            employer's reason was a pretext or that the actual reason for            the adverse employment decision was discrimination.2  Blare                                                                  _____                                            ____________________                      It shall be an unlawful practice: . . .                      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.              Mass. Gen. L. ch. 151B,   4.            2.  In this third stage, the burden on the plaintiff is less            under Massachusetts law than it is under federal law.  To            survive summary judgment under federal law, the plaintiff is            required to show that the employer's reason was pretextual            and that the actual reason for the adverse employment            decision was discrimination.  Under Massachusetts law,            showing that an employer's proffered reason for an adverse            employment action is merely pretextual is sufficient by            itself to survive summary judgment.  See Blare, 646 N.E.2d at                                                 ___ _____            116-17.                                         -6-                                          6            v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 646               ___________________________________            N.E.2d 111, 115-17 (1995).                        To make out a prima facie case, Lehman had to show            by a preponderance of the evidence that (1) he was a member            of the protected class;3 (2) he was qualified for the            position in question; (3) he was denied the position; and (4)            his employer sought to fill the position by hiring a younger            individual with qualifications similar to those of the            plaintiff.4  See McDonnell Douglas, 411 U.S. at 802;  Beal,                         ___ _________________                    ____            646 N.E.2d at 136;  Blare, 646 N.E.2d at 115.  "[T]he burden                                _____            of establishing a prima facie case of disparate treatment is            not onerous."  Texas Dep't of Community Affairs v. Burdine,                           ________________________________    _______                                            ____________________            3.  The protected class includes all individuals over forty            years of age.  Mass. Gen. L. ch. 151B,   1(8).            4.  "[T]he facts necessary to establish a prima facie case of            discrimination will vary depending on the circumstances of            each case."  Beal v. Board of Selectmen of Hingham, 419 Mass.                         ____    _____________________________            535, 646 N.E.2d 131, 136 (1995).  See also McDonnell Douglas,                                              ________ _________________            411 U.S. at 802 n. 13;  Wheelock College, 355 N.E.2d at 313                                    ________________            n.5.  Lehman argues that this is a termination case rather            than a promotion case, and, therefore, he should only be            required to show that he was performing his job in a            satisfactory manner and then was replaced by a younger person            with similar qualifications.  However, the facts of this case            are more akin to a promotion case than to a termination case.             Lehman contends that Prudential should have hired him for the            newly created co-managing director position of the Northeast            region.  The elimination of Lehman's position as director of            the New England region in the consolidation did not entitle            him to the newly created co-managing director position.  As            the district court found, the two positions were not            identical.  The Northeast territory, including New York, New            Jersey, and most of New England, was much larger than            Lehman's New England territory.  Moreover, the duties of the            co-managing directors were more specialized than the duties            of the pre-consolidation directors had been.                                          -7-                                          7            450 U.S. 248, 253 (1981).  See also Villanueva v. Wellesley                                       ________ __________    _________            College, 930 F.2d 124, 127 (1st Cir.), cert. denied, 502 U.S.            _______                                ____________            861 (1991).  The district court found that Lehman failed to            present evidence showing that he was qualified for the            co-managing director position and that the individual who was            hired had qualifications similar to his.  The court held,            therefore, that Lehman had not presented a prima facie case            against Prudential.  Since we find plaintiff did not meet his            burden, in the context of summary judgment, of establishing            pretext, we need not tarry over the prima facie case issue.             See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.            ___ ____    _____________________            1993) (a court of appeals may affirm "on any independently            sufficient ground made manifest by the record").                      Even assuming a prima facie case was made, the            burden shifted to Prudential to provide a legitimate business            reason for its hiring decision.5  As the district court            found, Prudential's stated business reason for not hiring            Lehman as co-managing director was legitimate and non-            discriminatory; it was also sufficiently supported in the            record to satisfy the requirements of Massachusetts law.  See                                                                      ___            Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir.            _____    ________________________            1994).                                              ____________________            5.  This burden is one of production, not persuasion.  The            burden of proving discrimination remains with the plaintiff            at all times.  See Burdine, 450 U.S. at 253.                           ___ _______                                         -8-                                          8                      Prudential's asserted reason for hiring Dietz was            that Dietz's qualifications were more in line with its needs            than those of Lehman.  See id. at 261.  Kleinman and Dunker                                   ___ ___            believed that Dietz would best add the qualities required for            the Northeast co-managing director position alongside of            Kiley.  In support of Prudential's asserted reason was a            considerable body of evidence indicating that Dietz could            reasonably be regarded as better suited to that position than            Lehman: (1) Dietz had greater experience in the supervision            of national marketing efforts; (2) Dietz had greater            experience in managing large insurance organizations; (3)            Dietz had greater recognition as a leader in the life            insurance industry; and (4) Dietz got along better with the            other co-managing director, Kiley.  Prudential, therefore,            met its second stage burden.                      In the third stage, the burden returned to Lehman            to produce evidence sufficient to support a jury verdict that            it was more likely than not that (1) Prudential did not offer            Lehman the position he desired because of his age; or (2)                                                               __            Prudential's reason for not offering Lehman that position was            a "pretext."  See Blare, 646 N.E.2d at 118.  "'[E]vidence                          ___ _____            which may be relevant to the plaintiff's showing of pretext            may include application of a certain criterion to employees            [not within the protected category]; the employer's general            practice and policies concerning employment of [those within                                         -9-                                          9            the protected category]; and the employer's treatment of the            plaintiff during [his] employment.'"  Id. (quoting Lewis v.                                                  ___          _____            Area II Homecare for Senior Citizens, Inc., 397 Mass. 761,            __________________________________________            493 N.E.2d 867, 872 (1986) (alterations in original)).                       Attempting to show that Prudential's reason was            pretextual, Lehman pointed out that Dietz, the individual            offered the co-managing director position in the Northeast            region, was younger than he, and that the previous New            England agency had performed consistently well under Lehman's            leadership.6  However, the fact that Lehman had been            successfully directing the New England agency was            insufficient, by itself, to show that Prudential's reason for            hiring Dietz was pretextual.  As already described, Dietz had            important qualifications of his own that could reasonably            lead to the belief that he was superior to Lehman for this            job.  The position of co-managing director of the large,            reorganized Northeast region involved different            responsibilities and could reasonably be thought to require a            different blend of talents than those required for solo            management of the smaller New England office.                                              ____________________            6.  To demonstrate that the New England agency was successful            under his leadership, Lehman reports that (1) since 1986 the            New England agency was consistently in the top 40% of all            agencies; (2) the agency had very good policy persistency and            very low expenses; (3) he had hired and trained six brokerage            managers in New England; and (4) he had solicited work from            brokerage general agencies.                                         -10-                                          10                      It is undisputed that several of the pre-            consolidation directors were promoted and several were not,            and their relative ages and performance records do not            suggest that those decisions were aged-based.  The average            age of pre-consolidation directors appointed to be post-            consolidation directors was older than the average age of            those pre-consolidation directors, including Lehman, who were            not appointed.7  Lehman was treated the same as the other            six directors, all under 50, who were not promoted.  We            refuse to second guess Prudential's hiring decision for a            management position of this nature absent clearer evidence of            irrationality.  See Villanueva, 930 F.2d at 129;  Odom v.                            ___ __________                    ____            Frank, 3 F.3d 839, 847 (5th Cir. 1993) ("[U]nless disparities            _____            in curricula vitae are so apparent as virtually to jump off            the page and slap us in the face, we judges should be            reluctant to substitute our views for those of the            individuals charged with the evaluation duty by virtue of            their own years of experience and expertise in the field in            question").                                            ____________________            7.  The average age of the four pre-consolidation directors            appointed to post-consolidation director positions was 55            years, while the average age of the seven pre-consolidation            directors (including Lehman) not appointed to director            positions was 46 years.                  Including the three newly hired directors in the            analysis does not change the result.  The average age of the            seven post-consolidation directors was 49 years, while the            average age of the seven pre-consolidation directors not            promoted was 46 years.                                         -11-                                          11                      In addition to attempting to show Prudential's            reason pretextual, Lehman provided what he considers indirect            evidence of age discrimination.  Lehman pointed to a            statement made during the May 1990 Directors' Meeting, while            Kleinman was explaining changes in the expense formula used            to calculate agency profitability.  Kleinman stated that the            previous expense component representing benefits was 31% of            all compensation paid to employees and added that using 31%            "was a gift" because of "the age of some of the Directors."             Contrary to Lehman's allegations, this statement does not            show animus based on age, but rather merely states that the            formula that had been employed was favorable to older            directors and points out that the use of actual costs under            the modified method might result in higher assessments.  This            statement -- which did not mention Lehman, and in no way            indicated that older directors were lacking in competence --            provides insufficient basis for an inference that Prudential            did not offer Lehman the position he wanted because of his            age.8  Isolated, ambiguous remarks are insufficient, by            themselves, to prove discriminatory intent.  See Gagne v.                                                         ___ _____            Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6th Cir.            ___________________________                                            ____________________            8.  Unlike remarks made in Blare by a supervisor, Kleinman's                                       _____            comment could not reasonably be construed to reveal a belief            that Lehman lacked the ability to perform well because of his            age.  See Blare, 646 N.E.2d at 118.                   ___ _____                                         -12-                                          12            1989);  cf. Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1271                    ___ __________    ______________            (8th Cir.), cert. denied, 484 U.S. 855 (1987).                         ____________                      Lehman also pointed to a photostat entitled            "Organizational Man, New Manager."  The photostat came from a            presentation to Prudential's Individual Insurance Business            Unit by a business consultant, Dr. Paul Lienberger.  Dr.            Lienberger discussed the need to adapt products and marketing            to demographic changes in the marketplace. One of several            slides shown by Dr. Lienberger depicted the "Organizational            Man" of the "Ozzie and Harriet" generation as being            pessimistic, being cautious, being oriented to bureaucracies,            and having a 30-year career plan; in contrast, the "New            Manager" of the "Kuzak & Gracie of L.A. Law" generation was            depicted as risk taking, optimistic, well educated and            hardworking.  Dunker, who had attended Dr. Lienberger's            presentation, decided to include a videotape of the            presentation and photostats of the slides as part of a            discussion in the November 1990 Directors' Meeting.  Due to            time constraints, the videotape was not shown; nonetheless,            the directors, including Lehman, received a copy of the            photostats.  Lehman argued that the comparisons made on the            "Organizational Man" photostat indicated an age-stereotyped            mentality.  However, we think it too long a stretch to            interpret a photostat generated by a marketing consultant in            an entirely different context as indicating that Prudential                                         -13-                                          13            was biased when placing its older brokerage employees.  There            is no evidence in the record before us that the photostat and            its context had any relation to the decision of whom to hire            as co-managing brokerage directors.  We conclude that            Lehman's evidence, taken at its best, was insufficient to            show that, in not appointing Lehman to the co-managing            director position, Prudential was motivated by age            discrimination or that its asserted reason for not appointing            him was pretextual.                         Pension Discrimination Claim (ERISA)                         Pension Discrimination Claim (ERISA)                      Lehman's second claim against Prudential was for            unlawful pension discrimination in violation of section 510            of ERISA.  29 U.S.C.   1140.9  Lehman alleged that            Prudential hired a younger person for the co-managing            director position to avoid the high cost of funding his            pension.  This circuit, along with most others, analyzes                                            ____________________            9.  Section 510 of ERISA provides that it is unlawful for:                      any person to discharge, fine, suspend,                      expel, discipline, or discriminate                      against a participant or beneficiary for                      exercising any right to which he is                      entitled under the provisions of an                      employee benefit plan . . . for the                      purpose of interfering with the                      attainment of any right to which such                      participant may become entitled under the                      plan.            29 U.S.C.   1140.                                         -14-                                          14            ERISA discrimination claims under the same three stage            burden-shifting paradigm described above.  Barbour v.                                                       _______            Dynamics Research Corp., 63 F.3d 32, 37-38 (1st Cir. 1995)            _______________________            (collecting cases).  In the first stage, Lehman must set            forth a prima facie case by demonstrating that: (1) he had            the opportunity to attain rights under an ERISA benefit plan;            (2) he was qualified for the position at issue; and (3) he            was subjected to adverse action under circumstances that give            rise to an inference of discrimination.  Id. at 38.  We again                                                     ___            assume arguendo, without deciding, that Lehman set forth a                   ________            prima facie case.                        To dispel the inference of discrimination arising            from a prima facie case, Prudential must only articulate, it            need not prove, a non-discriminatory reason for its hiring            decision.  Dister v. Continental Group, Inc., 859 F.2d 1108,                       ______    _______________________            1115 (2nd Cir. 1988).  Lehman conceded that Prudential            "articulated a legitimate, non-discriminatory reason for its            action . . . [namely] that it selected Dietz instead of            Lehman for the position of co-Managing Director because of            Dietz' supposedly superior qualifications for the position."                       At the third stage, Lehman must show that            Prudential was motivated by "the specific intent of            interfering with the employee's ERISA benefits."  Barbour, 63                                                              _______            F.3d at 37.  See also McGann v. H & H Music Co., 946 F.2d                         ________ ______    _______________            401, 404 (5th Cir. 1991);  Dister, 859 F.2d at 1111; Gavalik                                       ______                    _______                                         -15-                                          15            v. Continental Can Co., 812 F.2d 834, 851 (3rd Cir.), cert.               ___________________                                _____            denied, 484 U.S. 979 (1987).  ERISA provides no relief if the            ______            loss of an employee's benefits was incidental to, and not the            reason for, the adverse employment action.  Were this not so,            every discharged employee who had been a member of a benefit            plan would have a potential cause of action against his or            her former employer under ERISA.  Barbour, 63 F.3d at 37;                                               _______            see also Dister, 859 F.2d at 1111.  To demonstrate that            ________ ______            Prudential acted with the specific intention of interfering            with Lehman's ERISA benefits, Lehman must show "(1) that            [Prudential's] articulated reason for its employment actions            was a pretext; and (2) that the true reason was to interfere                           ___            with [Lehman's] receipt of benefits."  Barbour, 63 F.3d at 39                                                   _______            (emphasis added).  On this record, we find no genuine issue            of fact either that Prudential was motivated by a            discriminatory purpose or that Prudential's reason for not            hiring Lehman co-managing director was not credible.                       Effective January 1, 1990, Prudential made            adjustments to its company-wide pension plan which Lehman            estimates increased Prudential's cost of funding his pension            by about $500,000 over time.  Lehman contends that Prudential            was aware of the high cost of his benefits10 and refused to            offer him the co-managing director position in an effort to                                            ____________________            10.  Lehman points out that Prudential discovered an "expense            gap" when it was first required to calculate age-related            costs for certain pension plans.                                           -16-                                          16            reduce this cost (pension benefit obligations being lesser            for younger people).  Lehman again points to Kleinman's            statement that benefits actually cost more than they had been            estimating because of "the age of some of the Directors."                         Viewing the evidence in the light most favorable to            Lehman, we find nothing that would cause a reasonable fact-            finder to doubt Prudential's explanation for its hiring            decision.  Prudential's mere awareness of the high cost of            pension obligations combined with the single isolated            ambiguous remark by Kleinman were insufficient, by            themselves, to establish Prudential's discriminatory intent.             Lehman did not contradict deposition testimony that            Prudential's benefit costs were calculated on a company-wide            basis, and that Pru Select's top management, who made the            hiring decision, received no individual employee calculation            of pension costs.  Nor did Lehman contradict deposition            testimony that Prudential did not have knowledge of his            wife's age, knowledge that would be necessary to compute his            pension obligation.  No material connection appears between            the cost of funding Lehman's pension and Prudential's            decision to hire Dietz rather than Lehman.  We are satisfied            that the record would not support a finding that Prudential            did not hire Lehman as co-managing director because of the            cost of funding his pension.                                           -17-                                          17            Affirmed.  Costs to Appellee.            Affirmed.  Costs to Appellee.            ________                                         -18-                                          18
