
USCA1 Opinion

	




        September 6, 1996       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________        No. 96-1186                                 ROBERT F. KELLEHER,                                Plaintiff, Appellant,                                          v.                      LORAL INFRARED AND IMAGING SYSTEMS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Robert F. Kelleher on brief pro se.            __________________            Alan  B.  Pearl,  Pearl  &  MacKenzie,  P.C.,  Leonard  Paris  and            _______________   __________________________   ______________        Laurence I. Cohen on brief for appellee.        _________________                                 ____________________                                 ____________________                      Per  Curiam.      Plaintiff-appellant  alleged  age                      ___________            discrimination  in  the  termination  of   his  eighteen-year            employment as a quality  assurance engineer during a company-            wide  reduction in  force  which occurred  shortly after  his            former employer was acquired by another corporation.  The new            employer,   LIRIS,  responded   that   the  elimination   and            consolidation  of employee  positions was  a necessary  cost-            cutting  move, and that it  had treated age  neutrally in the            process.  After lengthy discovery, the district court granted            summary judgment to LIRIS because plaintiff's proof failed to            create a genuine issue of fact as to LIRIS's motivation.                       Reviewing the  judgment de novo, and  after a close                                              __ ____            examination of the record and briefs, we find no  substantial            reason  to disagree  with  the  district court's  conclusion.            Accordingly, we summarily  affirm the  judgment, adding  only            the  following comments  in  response to  two of  appellant's            arguments on appeal.                      (1)  We have  reviewed with care the excerpts  from            appellant's  deposition  testimony   which  he  claims   were            overlooked  by the district court.    The  testimony does not                                                                      ___            identify the  anonymous declarant(s) who reported  that LIRIS            was prejudiced against older workers and "taking a hard  look            at  anyone  over  40 years  of  age  and  earning over  40K."            Appellant named  employees who "discussed,"  "referenced," or            "mentioned" the anonymous statements, not those who initially                                         -2-            uttered them.       Appellant's reliance on Conway v. Electro                                                        ______    _______            Switch  Corp., 825 F.2d 593  (1st Cir. 1987),  and Woodman v.            _____________                                      _______            Haemonetics  Corp., 51  F.3d  1087 (1st  Cir.  1995) is  thus            __________________            misplaced.   In Conway, we  held that the  district court did                            ______            not abuse its  discretion in a gender  discrimination case by            admitting  into  evidence   testimony  reflecting  two  prior            instances of gender bias in the treatment of women employees.            The witnesses testified that in each instance a named company            manager  explained a  decision to  deny a  pay increase  to a            woman employee on the basis of the woman's gender.  The named            declarants had authority  to make the statements, and  one of            them  was the  president  of the  company  at the  time  that            plaintiff's employment  was terminated.   We held  that under            Fed. R. Evid. 401, the  statements were not wholly irrelevant            to  the issues  at hand  because they  might circumstantially            evidence  a  "corporate state-of-mind"  or  a "discriminatory            atmosphere."                        In Woodman,  an age  discrimination  case, we  held                         _______            admissible  a  named  supervisor's  statement  purporting  to            communicate management's desire for a younger workforce.  The            supervisor  was  in  a   position  to  know  of  management's            intentions; she was  "directly involved" in implementing  the            challenged   reduction  in  force;   and  the  statement  was            admissible  under  Fed.  R.  Evid.  801(d)(2)(D)  because  it                                         -3-            concerned  matters  within  the  scope   of  her  employment.            Woodman, 51 F.3d at 1093-94.              _______                      In  contrast, appellant's  proof is  that anonymous            statements  reporting a  discriminatory animus  were "abound"            during the  layoff period,  and "bantered about"  by numerous            employees.   There was no evidence that the banterers were in            a  position to know of  management's sentiments nor that they            had  any  responsibility  for  communicating  or implementing            LIRIS's policy.  The  identification of one of the  banterers            as a "supervisor"  does not alone  provide the missing  link,            especially  since this supervisor was himself a victim of the            new management's layoff.                       Proof of "bantering" by  employees fearful of a new            employer's motives for a layoff does not suffice to establish            a  genuine issue of fact as to the employer's actual mindset.            Cf.  Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th            ___  ________    ___________________            Cir. 1996) (holding that "rumors, conclusory allegations  and            subjective  beliefs  [are]  wholly insufficient  evidence  to            establish a claim of discrimination as a matter of law").  As            the district  court observed, too, appellant's  proof did not            satisfy the  foundation requirements for  admissibility under            Fed. R. Evid. 801(d)(2)(C)(D).                      (2)  Appellant's evidence also was  insufficient to            establish  a genuine issue of  fact in support  of his theory            that  he was "replaced" in his position by a younger employee                                         -4-            and/or that  LIRIS retained  younger employees in  the "same"            position.  Viewing  the evidence in the light  most favorable            to  appellant, it  could not  support a  reasonable inference            that  any employee  assumed a  position that  was coextensive            with,  or  identical  to,  the  duties  which  appellant  had            performed.   See LeBlanc v.  Great American Ins.  Co., 6 F.3d                         ___ _______     ________________________            836, 846  (1st Cir. 1993) (an employee is not "replaced" when            another is  assigned  to perform  his duties  in addition  to            other duties, or when  the work is redistributed among  other            existing  employees already  performing related  work), cert.                                                                    _____            denied,  114 S.Ct. 1398  (1994); cf. Hebert  v. Mohawk Rubber            ______                           ___ ______     _____________            Co., 872 F.2d 1104, 1114  (1st Cir. 1989) (finding sufficient            ___            proof to survive summary  judgment where the younger retained            person "exactly" conducted the  work of riffed employee, with            only minor modifications).                       Appellant's motion for reconsideration of the order            submitting this  case for  decision without oral  argument is            denied.  The judgment is affirmed.  See Loc. R. 27.1.              ______                   ________   ___                                         -5-
