

                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 &amp; 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 &amp; 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 &amp; 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
