
USCA1 Opinion

	




          April 18, 1995        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-2033                                    HARVEY BLOOM,                                Plaintiff, Appellant,                                          v.                                  AGFA CORPORATION,                                 Defendant, Appellee.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Zachary R. Karol, U.S. Magistrate Judge]                                            _____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Donald L. Conn, Jr.,  with whom Conn, Austin, Conn  & Senior               ___________________             ____________________________          was on brief, for appellant.               John F. Welsh, with whom Marie H. Bowen and Testa, Hurwitz &               _____________            ______________     ________________          Thibeault were on brief, for appellee.          _________                              _________________________                              _________________________                                                               Per Curiam.  We have carefully reviewed the briefs  and                    Per Curiam.                    __________          the record in this  case, and have given due consideration to the          matters raised at oral argument.  Because we  agree, for the most          part, with  the magistrate judge's thoughtful  opinion, see Bloom                                                                  ___ _____          v.  Agfa Corp., No. 90-10856-ZRK,  1994 WL 548050  (D. Mass. Aug.              __________          10, 1994),  we affirm  the judgment  below  substantially on  the          basis of that opinion.  We add only two brief comments.                    First,   plaintiff  concedes  that   if  his  proffered          "statistical evidence"  lacked probative  force, he had  no other          competent  proof of an age-based  animus.  On  reflection, we are          persuaded that this evidence is not evidence at all.  To say that          a reduction  in force discriminated against  older workers merely          because 60% of the managers who were laid off were  over 40 years          of age proves nothing of consequence about  age discrimination in          the absence of complementary  evidence as to the ages  of all the          managers employed in  the unit  under analysis.   See LeBlanc  v.                                                            ___ _______          Great Am. Ins. Co., 6 F.3d 836, 848  (1st Cir. 1993) (noting in a          __________________          disparate  treatment case  that appellant's  statistical evidence          was flawed inasmuch as it failed to provide important information          anent  the applicant pool), cert. denied, 114 S. Ct. 1398 (1994).                                      _____ ______                    We think this proposition has particular cogency where,          as  here, logic suggests that the universe of managers might well          be weighted toward the  protected class.  After all,  on average,          one  would  expect  managers   in  a  large  corporation   to  be          experienced  hands and, thus,  older rather than  younger.  Given                                          2          this  logical  expectation,   plaintiff's  incomplete   equation,          without  more, does not supply a sufficient predicate on which to          found a reasonable inference of age-based animus.                    Second,  we  do not  believe  that  the district  court          abused  its discretion  in  denying plaintiff's  tardy motion  to          compel discovery.   See generally  Mack v. Great Atl.  & Pac. Tea                              ___ _________  ____    ______________________          Co.,  871 F.2d 179, 186 (1st Cir. 1989) (discussing trial court's          ___          broad  discretion in respect to discovery orders).  Plaintiff let          three years lapse after  the court denied his original  motion to          compel without  prejudice, and only renewed the  motion after the          case had been reached  for trial.  Parties who, like  Bloom, have          easily foreseeable needs for pretrial discovery cannot wait until          the  district  court  is  performing rites  of  interment  before          attempting to secure necessary  facts.  See, e.g., Fusco  v. Gen.                                                  ___  ____  _____     ____          Motors  Corp., 11  F.3d  259,  266  (1st  Cir.  1993)  (affirming          _____________          district  court's denial  of appellant's  eve-of-trial motion  to          compel  production  when  appellant  knew  a  year  earlier  that          appellee intended  to offer evidence  on the issue);  Medeiros v.                                                                ________          United  States,  621 F.2d  468,  470 (1st  Cir.  1980) (affirming          ______________          dismissal   for  lack   of  prosecution  when   record  reflected          "unreasonable   delay"  by   plaintiff  in   conducting  pretrial          discovery).  In  this instance, plaintiff's effort was too little          too late.                    We need go no further.  It is clear beyond peradventure          that the trial court did not err either  in ordering judgment for          the  defendant as  a  matter of law  based on plaintiff's opening                                          3          statement  or in  denying  plaintiff's belated  motion to  reopen          discovery.  Because  this appeal  does  not  yield a  substantial          question  of law or fact, we summarily affirm the judgment below.          See 1st Cir. R. 27.1.          ___          Affirmed.          Affirmed.          ________                                          4
