
USCA1 Opinion

	




        October 20, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1681                                   JOHN PAGLIARINI,                                Plaintiff, Appellant,                                          v.                              GENERAL INSTRUMENT CORP.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                         Campbell, Senior Circuit Judge, and                                   ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Frank  J. McGee, Joseph  P. Hegarty,  Jr. and  Joseph D. McDonald,            _______________  ________________________      ___________________        Jr. on brief for appellant.        ___            Wm. Shaw  McDermott, Irene  C. Freidel and Kirkpatrick  & Lockhart            ___________________  _________________     _______________________        on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.    Plaintiff appeals a summary judgment                      __________            dismissing his complaint.   He alleges that defendant company            wrongfully terminated  his employment because of  his age (55            years  old)  in  violation   of  the  Age  Discrimination  in            Employment  Act, 29 U.S.C.   621 et. seq., and parallel state            law.   The district court held that plaintiff failed to offer            minimally sufficient  proof to establish a  prima facie case,            and  to  rebut  defendant's   articulated  non-discriminatory            reason for the employment termination.                       The  undisputed facts  showed  that  plaintiff,  an            expert  in acoustical  engineering,  was hired  as a  section            manager in the engineering department of defendant's Undersea            Systems  Division in  1986.   His  employment was  terminated            approximately 4-1/2  years later after business  setbacks led            to  an overall  reduction  in the  department's work  force.1            Defendant alleged that the decision to  terminate plaintiff's            employment  was  due  to  the  company's  immediate financial            situation, in that plaintiff's expertise in acoustical theory            was not as valuable to its scaled-back business objectives as            were  the  mechanical  skills   of  the  employees  who  were            retained.                                            ____________________            1.  There  had  been  an  earlier round  of  layoffs  in  the            Division,  which did not  affect the  engineering department.            In this  round, eleven  engineering employees were  laid off:            six  were older than the age of forty, and five were younger.            The Division was later sold to another company.                                           -2-                      On appeal, plaintiff  assigns four errors.   First,            he  challenges the district court's finding that he failed to            adduce sufficient  proof that during  the workforce reduction            "defendant  did  not treat  age  neutrally,  or that  younger            employees were retained in  the same position."  Slip  op. at            4-6 & n.5  (May 31, 1994) (citing  LeBlanc v. Great Am.  Ins.                                               _______    _______________            Co., 6 F.3d 836,  842 (1st Cir.  1993), cert. denied, 114  S.            ___                                     ____________            Ct.  1398 (1994), and Hebert  v. Mohawk Rubber  Co., 872 F.2d                                  ______     __________________            1104,  1111 (1st  Cir. 1989)).   Plaintiff now  concedes that            this  is a correct articulation of a necessary element of his            claim.  He argues, however, that the court actually applied a            different standard in the following passage,                  The   only   "fact"    [plaintiff]   presents    in                 satisfaction  of the  fourth  element of  his prima                 facie case is that [co-employee] DeLara assumed the                 title of "Acting  Manager" of the  Department after                 he was terminated.  DeLara however . . . is  also a                 member of ADEA's protected class and only two years                 younger than [plaintiff].                      The  passage clearly consists  of a straightforward            evaluation  of the paucity of plaintiff's proof.  There is no            support  for   plaintiff's  attempt   to  twist  it   into  a            misapplication  of the  law.    We  also  see  no  basis  for            plaintiff's related argument that  the company's retention of            a  third  employee,  who  was  younger  than  the  other two,            "arguably" satisfied plaintiff's prima facie case because all            three  employees were  "theoretically  doing the  same work."            Whatever the relevance of this point, it was not specifically                                         -3-            urged  below, and there is no fault in the court's assessment            in light of the proof and arguments presented.                       We  also find  no  merit in  plaintiff's  remaining            assignments  of error.  First, the district court did not err            in rejecting  plaintiff's argument  that "by seeking  to save            the equivalent of Plaintiff's high salary, the Defendant  . .            .  did not  treat  age  neutrally."    There  were  no  facts            suggesting that defendant used  plaintiff's salary as a proxy            for age  discrimination.  Indeed, the  brevity of plaintiff's            employment  with defendant,  and  the  substantial  disparity            between his salary and that of DeLara, who was only two years            younger, belie  the correlation  which plaintiff urges.   See                                                                      ___            Hazen Paper Co.  v. Biggins,  113 S. Ct.  1701, 1707  (1993).            _______________     _______            Second,   the  district   court  did   not  misconstrue   the            applicability  of Hazen,  and  we apprehend  no prejudice  to                              _____            plaintiff in the court's style of editing quotations from the            Hazen  opinion.    Finally,  the  court  did  not  abuse  its            _____            discretion  in   refusing  to  consider  any   new  facts  in            plaintiff's out-of-time "supplemental memorandum," and in any            event,  plaintiff points  to  no prejudice  from the  court's            ruling.                         Reviewing the district  court's order de novo,  and                                                            __ ____            finding no  substantial  question for  review,  the  judgment            below is summarily affirmed.   See Loc. R. 27.1.                                ________    ___                                         -4-
