

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 94-2220

                    WILLIAM P. MORRISSEY,

                    Plaintiff, Appellant,

                              v.

         THE BOSTON FIVE CENTS SAVINGS BANK, ET AL.,

                    Defendants, Appellees.

                                         

          [Hon. Patti B. Saris, U.S. District Judge]                                                               

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

                                         

                            Before

                    Boudin, Circuit Judge,                                                     
                Bownes, Senior Circuit Judge,                                                        
                  and Stahl, Circuit Judge.                                                      

                                         

Robert H.  Quinn, with whom John  P. Morrissey and  Quinn &amp; Morris                                                                              
were on brief for appellant.
Robert B. Gordon, with whom David M. Mandel  and Ropes &amp; Gray were                                                                         
on brief for appellees.

                                         

                         May 15, 1995
                                         

          BOWNES, Senior Circuit Judge.   Plaintiff-appellant                      BOWNES, Senior Circuit Judge.                                                  

William  Morrissey,  a  twenty-year  employee  of  defendant-

appellee Boston Five Cents Savings Bank, F.S.B. ("the Bank"),

was involuntarily retired from his position as Executive Vice

President  for  Corporate  Affairs   on  November  1,   1992,

approximately one  month after his sixty-fifth  birthday, and

approximately  one week  after  he  filed age  discrimination

claims against the Bank and  its holding company, the  Boston

Five  Bancorp,  with  the  Massachusetts  Commission  Against

Discrimination   and   the   Equal   Employment   Opportunity

Commission.    It   is  undisputed   that  the   Bank  forced

Morrissey  to retire because of his age.  The question before

us is whether  the Bank's  action was lawful  under a  narrow

exemption  to the  Age Discrimination  in Employment  Act, 29

U.S.C.       621-34   ("ADEA"),   which  permits   compulsory

retirement, at age sixty-five and older, of certain employees

who  occupy  "bona  fide  executive"  or  "high policymaking"

positions  for  the  two-year  period  immediately  preceding

retirement, if such employees are entitled upon retirement to

an immediate  nonforfeitable annual retirement benefit  of at

least  $44,000.  See 29  U.S.C.   631(c)(1).   We answer this                                

question  in  the  affirmative,  and   therefore  affirm  the

district court's order granting  summary judgment in favor of

the Bank.  

                             -2-                                          2

                        I.  Background                                    I.  Background                                                  

          On appeal from a grant of summary judgment, we view

the  facts and all inferences  that may fairly  be drawn from

them in  the light  most  favorable to  the nonmoving  party.

Coll v. PB Diagnostic Systems, Inc., No. 94-1680, slip op. at                                               

10-11 (1st Cir. March 30, 1995). 

          The  Bank hired  Morrissey as  a Vice  President in

June  of  1972, and  later promoted  him  to the  position of

Senior  Vice President.   In  1978 or  1979, the  Bank's then

Chief  Executive  Officer ("CEO"),  Robert  Spiller, promoted

Morrissey  to Executive Vice President for Corporate Affairs.

Morrissey  continued to  hold  this position  until the  Bank

forced him  to retire, at which time he was the fifth highest

paid employee at the Bank.  

          In  his  capacity as  Executive Vice  President for

Corporate Affairs, Morrissey reported directly to the CEO and

was  responsible   for  (i)  monitoring   state  and  federal

regulations  and  advising  the  Bank  with  respect  to  the

influence and  effect of these regulations  upon the business

of the Bank, and  recommending action where appropriate; (ii)

developing   and   recommending   merger    and   acquisition

candidates; and (iii) developing sources of  loan and deposit

business  for  the  Bank.    In  addition  to  these  duties,

Morrissey  served as  a  member of  the  Asset and  Liability

Committee, and  regularly attended the meetings  of the Board

                             -3-                                          3

of  Directors.  He also  attended the weekly  meetings of the

Bank's six most senior officers ("Senior Officers Group"). 

           In  1990,  Robert  Spiller retired  and  defendant

Peter  Blampied  succeeded him  as CEO.    The Bank  does not

contest  Morrissey's  assertion  that this  event  took place

shortly  before  the  statutory two-year  period  immediately

prior to his involuntary retirement.  By Morrissey's account,

his  role  in  the  formulation of  Bank  policy  was greatly

diminished  after  Blampied  took  over as  CEO.    Morrissey

contends, for example, that whereas under former CEO Spiller,

the  weekly meeting of the Senior Officers Group served as an

opportunity for the officers to discuss and to participate in

policymaking  decisions, under  CEO  Blampied,  this  meeting

ceased to serve the same policymaking function.  Instead, all

high policy decisions were made by the Board of Directors, or

by  a  subset   of  senior  officers  that  did  not  include

Morrissey, which  specifically excluded him  from high policy

discussions of important issues such as the Bank's distressed

real estate  holdings, its dealings with  regulators, and its

three-year strategic  business plan.  Morrissey  also asserts

that   Blampied   did   not   specifically   solicit   policy

recommendations  from  him,  and  that,  at  his  deposition,

Blampied could  recall  specific comments  by Morrissey  with

respect to only one policy matter.       

                             -4-                                          4

          On July 28, 1992, Blampied  advised Morrissey that,

in view  of  the  fact  that  his  sixty-fifth  birthday  was

approaching, he should be thinking about retiring.  Morrissey

replied  that he  had no  intention of  retiring and  that he

could not afford  to retire because he had to provide for his

young family.   Morrissey turned sixty-five  on September 29,

1992.   On  October 6,  1992, Blampied  again told  Morrissey

that,  because he was  sixty-five, he  should be  thinking of

retiring.  Blampied also suggested the possibility of a year-

to-year  paid consulting  arrangement.   The  following  day,

Morrissey  received a memorandum  outlining this arrangement,

to  which  he responded  later in  the  day.   Morrissey told

Blampied that  he had not agreed to  the proposed arrangement

and asked  whether Blampied had consulted  with any attorneys

on the matter.   Blampied replied that he had  "checked every

base," that he  was going  to "play hardball,"  and that  the

proposed consulting arrangement was rescinded.  At some point

during this  meeting, Morrissey asked for  the opportunity to

review the matter with attorneys and other consultants. 

          On October  13,  1992, Morrissey  received  written

notification that his retirement  would be effective November

1, 1992.   At the  time of this  notification, Morrissey  was

entitled  to  receive  $38,352  annually   in  nonforfeitable

pension benefits  under his Qualified  Benefit Plan  ("QBP"),

plus $17,592 annually in pension benefits under his Executive

                             -5-                                          5

Supplemental Benefits Plan ("SERP").   The SERP benefits were

forfeitable   upon  certain   conditions  specified   in  the

contract.   On  October 26, 1992,  Morrissey filed  state and

federal  age discrimination  claims  with  the  Massachusetts

Commission  Against Discrimination  and the  Equal Employment

Opportunity Commission.   By his account,  Morrissey gave the

Bank written notice of  these claims on his October  28, 1992

application for pension benefits.  

          On October 29, 1992, the Executive Committee of the

Board  of  Directors held  a  special  meeting via  telephone

conference,   during  which  the  Committee  voted  to  waive

irrevocably the forfeitability conditions of Morrissey's SERP

as to  $6,000 of the annual  pension benefit to  which he was

entitled under that plan, as of November 1, 1992.  The effect

of the Committee's vote  was to increase the total  amount of

Morrissey's  nonforfeitable annual  pension benefit  from the

$38,352 to which he  was entitled under his QBP,  to slightly

more  than  the  $44,000  minimum  required  under  the  ADEA

exemption.  Morrissey  was informed  of the  increase in  the

amount of  his nonforfeitable pension benefit  on October 30,

1992.  On November 1, 1992, he was forced to retire.  

          On  August  20,  1993  (after having  been  granted

permission to withdraw his administrative  claims), Morrissey

filed suit  in the  Massachusetts Superior Court  against the

Bank, the Boston  Five Bancorp, the individual members of the

                             -6-                                          6

Executive  Committee,  and the  administrators of  the Bank's

pension  benefits   plan.1     The   complaint  alleged   age

discrimination and retaliation in  violation of the ADEA, the

Massachusetts Unlawful Discrimination Act, Gen. L. ch. 151B  

4,  and the Massachusetts Equal Rights Under Law Act, Gen. L.

ch. 93     102 and 103.2   The Bank removed  the case to  the

United   States   District   Court  for   the   District   of

Massachusetts pursuant to 28  U.S.C.   1441, and subsequently

filed  a motion for summary judgment on all claims, which the

district court granted. 

                   II.  Standard of Review                               II.  Standard of Review                                                      

          On appeal, we review a grant of summary judgment de                                                                         

novo, evaluating the  record in the  light most favorable  to                

the  party opposing  the motion,  and drawing  all reasonable

inferences in  that party's favor.   Coll, No.  94-1680, slip                                                     

op. at 10-11.   Summary judgment is appropriate only  if "the

pleadings,  depositions,  answers  to   interrogatories,  and

admissions  on file,  together with  the affidavits,  if any,

show  that there is no genuine issue  as to any material fact

                                                    

1.  The individuals  named as defendants are  John R. Furman,
William F. McCall, Jr., Richard  J. Testa, George R. Baldwin,
Peter  J. Blampied,  Allan  W. Fulkerson,  Ernest E.  Monrad,
Webster Collins, and Karen Hammond.

2.  Mass.  Gen. L.  ch. 151B  is the  exclusive remedy  under
Massachusetts law for employment discrimination claims.   See                                                                         
Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.                                             
1994).  Thus, we need not consider the ch. 93 claims.

                             -7-                                          7

and that  the moving party  is entitled  to a  judgment as  a

matter of law."  Fed. R. Civ. P. 56(c).  

          "By its very terms, this standard provides that the

mere existence  of some  alleged factual dispute  between the                                   

parties  will not  defeat  an  otherwise  properly  supported

motion for summary judgment; the requirement is that there be

no  genuine issue  of material  fact."   Anderson  v. Liberty                                                                         

Lobby, Inc., 477 U.S. 242, 247-48 (1986).  Material facts are                       

those  "that might affect the  outcome of the  suit under the

governing law."   Id. at  248.  See  also Coll, No.  94-1680,                                                          

slip op. at 11.   A dispute as to a  material fact is genuine

"if  the evidence is such that a reasonable jury could return

a verdict for the nonmoving party."  Id.  "If the evidence is                                                    

merely colorable, or is  not significantly probative, summary

judgment  may be  granted."   Anderson,  477  U.S. at  249-50                                                  

(internal citations omitted).  

                      III.  Discussion                                   III.  Discussion                                                  

          Morrissey raises three issues on appeal.  First, he

argues  that during the last two years of his employment with

the Bank, he was not, in fact, a  high policymaker within the

meaning of  the ADEA exemption,  and that the  district court

erred  by failing to apply a functional test to determine his

status.  Second, he contends that the district court erred in

interpreting the pension benefit prong of the exemption so as

to permit an employer to increase the amount of an employee's

                             -8-                                          8

nonforfeitable  pension  benefit  after  the alleged  act  of

discrimination in order to meet the statutory minimum amount.

Finally, Morrissey argues that  the district court's grant of

summary   judgment  was  improper  because  the  supplemental

affidavits he submitted  in support  of his Fed.  R. Civ.  P.

56(f) ("Rule  56(f)") motion demonstrated a  genuine issue of

material fact.   Alternatively,  he argues  that, in view  of

these affidavits, the  district court  should have  exercised

its discretion  under Rule 56(f)  to defer judgment  until he

had  an opportunity to depose the affiants.  We address these

issues in turn.

  A.  The Bona Fide Executive or High Policymaker Exemption              A.  The Bona Fide Executive or High Policymaker Exemption                                                                       

          The  ADEA  makes it  unlawful  for  an employer  to

"discriminate  against any  individual  with  respect to  his

compensation, terms, conditions, or privileges of employment,

because  of such individual's age."   29 U.S.C.   623(a)(1).3

The prohibition applies only to individuals who  are at least

forty years of  age.  29 U.S.C.   631(a).   The ADEA provides

the following narrow exemption from this prohibition:

          Nothing   in   this   chapter  shall   be
          construed    to    prohibit    compulsory
          retirement  of  any   employee  who   has
          attained 65 years of age and who, for the
          2-year    period    immediately    before
          retirement,  is employed  in a  bona fide
          executive   or    a   high   policymaking

                                                    

3.  Because  Massachusetts  age  discrimination   law  tracks
federal  law in all relevant respects,  see Mass. Gen. L. ch.                                                       
151B   4(1B), we will confine our discussion to federal law.

                             -9-                                          9

          position, if such employee is entitled to
          an   immediate    nonforfeitable   annual
          retirement   benefit   from  a   pension,
          profit-sharing,   savings,   or  deferred
          compensation plan, or any  combination of
          such  plans,  of  the  employer  of  such
          employee, which equals, in the aggregate,
          at least $44,000.

29 U.S.C.   631(c)(1).

          The parties  agree that  Morrissey was not  a "bona

fide executive" under the  ADEA; the dispute concerns whether

he was a "high policymaker."  The ADEA itself does not define

the  term "high  policymaking  position,"  and few  published

opinions address  the exemption.  We  find guidance, however,

in the EEOC interpretive regulations set forth in 29 C.F.R.  

1625.12 (1994).     

          Section  1625.12(e)  defines  high policymakers  as

"`certain  top  level  employees   who  are  not  "bona  fide

executives,"'"  and as  "`individuals who  have little  or no

line authority but whose position and responsibility are such

that  they  play a  significant  role in  the  development of

corporate policy and effectively recommend the implementation

thereof.'"   29 C.F.R.   1625.12(e)  (quoting H.R. Conf. Rep.

No. 950,  95th Cong., 2d Sess. 10  (1978)).  For example, the

chief economist or chief  research scientist of a corporation

would likely be a high policymaker:

          His    duties    would    be    primarily
          intellectual as opposed  to executive  or
          managerial.  His responsibility  would be
          to   evaluate  significant   economic  or
          scientific trends and issues,  to develop

                             -10-                                          10

          and recommend policy direction to the top
          executive  officers  of the  corporation,
          and he would have a significant impact on
          the ultimate decision on such policies by
          virtue of his expertise and direct access
          to the decisionmakers.  Such  an employee
          would  meet the  definition  of  a  `high
          policymaking' employee.

Id.               

          As to the  scope of the exemption,    1625.12(b) of

the  regulations  admonishes  that  it  should  be  construed

narrowly,  and  that "the  burden is  on  the one  seeking to

invoke  the exemption  to show  that every  element has  been

clearly and unmistakably met."

          Morrissey does not dispute that,  as Executive Vice

President  for Corporate Affairs, he held the title of a high

policymaker.    Indeed, he  concedes  that  under former  CEO

Spiller,  he was a high policymaker.  Instead, he argues that

the district court failed to apply the proper standard in its

analysis  and overlooked  genuine  issues  of material  fact.

Morrissey's argument  rests upon two premises,  one legal and

one factual.  The legal premise is that the law requires that

his  status as a high  policymaker be determined,  not on the

basis of what  he calls the  "appearances" or "trappings"  of

his position -- i.e., title, salary, access to decisionmakers

-- but on the basis of his effectiveness as a policymaker, as

judged   by   his   actual   impact  on   Bank   policy   and

decisionmaking.  The factual premise is that, although he may

have been  a high policymaker  under former CEO  Spiller, and

                             -11-                                          11

while  he continued  to hold  the same  title until  the Bank

forced him  to retire, he no longer functioned as a true high

policymaker  during  the   two-year  statutory  period,  with

Blampied as CEO.  

          We find  that, even assuming arguendo  the truth of                                                           

Morrissey's legal premise and applying the effectiveness test

he urges,  the undisputed  facts clearly demonstrate  that he

was  a  high policymaker  during  the  relevant time  period.

Significantly, Morrissey does not dispute the following:  (i)

He  reported directly to the CEO and had direct access to the

Bank's decisionmakers.  (ii)  He attended the weekly meetings

of the Senior Officers Group.  (iii) He alone was responsible

for monitoring  state and federal legislative  and regulatory

developments, and  in that  capacity recommended  policies to

ensure  that the Bank remained in compliance with them.  (iv)

He worked closely with  state legislators on legislation that

was  important to the savings  bank industry, and  that had a

substantial impact on the  welfare of the  Bank.  (v) He  was

responsible  for  monitoring and  coordinating  important tax

litigation  involving  the  Bank,  and  made  recommendations

regarding the choice of legal counsel to handle it.  (vi) The

Bank  acted  upon Morrissey's  strong recommendation  that it

lower  the interest  rate on  its passbook  savings accounts.

(vii) He recommended that the Bank acquire the First American

                             -12-                                          12

Bank.   (viii) He was responsible  for the sale of the Bank's

deposits in a branch office.

          Even assuming  that a high  policymaker within  the

meaning  of the ADEA must  function at some  minimum level of

effectiveness, Morrissey  was more  than effective enough  to

make precise line-drawing unnecessary  here.  As the district

court stated:

          Morrissey  had direct  access to  the top
          decisionmakers,  he  was responsible  for
          evaluating  significant  legislative  and
          regulatory trends and issues  and working
          with  legislators on these issues, and he
          recommended  policy  on acquisitions  and
          mergers, capitalization,  and other areas
          of   importance  to   the   Bank.      If
          Morrissey's  position, the  fifth highest
          in  the Bank,  were not  to qualify  as a
          high policymaking position,  it would  be
          difficult to find a position that did.

Morrissey  v.  Boston Five  Cents Sav.  Bank, F.S.B.,  866 F.                                                                

Supp. 643, 647 (D. Mass. 1994).

          Given  our  conclusion,  based  on  the  undisputed

facts,  that  Morrissey was  a  high  policymaker during  the

statutory two-year period, we need  not dwell on his argument

that  the  district court  failed  to  apply the  "functional

analysis" set forth in Whittlesey v. Union Carbide Corp., 567                                                                    

F. Supp. 1320 (S.D.N.Y.  1983), aff'd, 742 F.2d 724  (2d Cir.                                                 

1984) (concluding  that the test Congress intended is "one of

function," and  rejecting the argument that  plaintiff's high

salary and title as chief labor counsel automatically brought

him within the ADEA  exemption).  We note, however,  that the

                             -13-                                          13

court  in Whittlesey  anticipated  and  rejected  Morrissey's                                

attempt to turn 

                             -14-                                          14

the   functional   test   into   a   test   of   policymaking

effectiveness:                         

          I would be inclined  to agree that if the
          organizational    structure     of    the
          enterprise makes clear that  the position
          in question has  bona fide executive rank
          or serves a  high policymaking  function,
          courts  probably  should  not  allow  the
          occupant to disavow the attributes of his
          position   by   seeking  to   prove,  for
          example,  that no  one paid  attention to
          his  policy  recommendations or  followed
          his   executive   orders.      But   such
          considerations are not  involved in  this
          dispute. 

Id.  at 1328.   See  also Colby v.  Graniteville Co.,  635 F.                                                                

Supp. 381,  386  (S.D.N.Y.  1986)  ("Plaintiff's  attempt  to

diminish  the  importance  of  his  duties  as  a  bona  fide

executive not only flies in the face of the undisputed facts,

but also  common sense.").   Moreover, as the  district court

below stated,  "[i]t is  unlikely that Congress  intended, in

amending the  ADEA, to  allow compulsory retirement  for only

the most effective movers and shakers, while prohibiting such

retirement  for high  level employees  who have  less impact,

despite  their significant responsibilities."  Morrissey, 866                                                                    

F. Supp. at 648.

          It follows  from this  analysis that  any remaining

facts  that truly are in dispute are not material.  Anderson,                                                                        

477 U.S. at 247-48. 

    B.  The Pension Benefit Prong of the High Policymaker                B.  The Pension Benefit Prong of the High Policymaker                                                                     
Exemption            Exemption                     

                             -15-                                          15

          The  ADEA  exemption  applies  only "if  [the  high                      

policymaker]  is  entitled  to  an  immediate  nonforfeitable

annual  retirement benefit  from  a pension,  profit-sharing,

savings, or deferred compensation plan, or any combination of

such plans, of  the employer of such  employee, which equals,

in  the aggregate, at least $44,000."  29 U.S.C.   631(c)(1).

The Bank  contends that  this requirement has  been satisfied

because, as of the first day of his retirement, Morrissey was

immediately  entitled  to  receive  slightly  more  than  the

statutory  minimum  nonforfeitable annual  benefit  through a

combination of his QBP benefit and the nonforfeitable portion

of his SERP  benefit.  Morrissey argues  that the requirement

has  not  been  met  because  the  law  forbids  "last-minute

manipulations  of the  pension benefit  to bring  an employee

within the exemption."  The district court's analysis  of the

intended function of the pension benefit provision compels us

to agree with the Bank. 

          The   district   court   considered  two   possible

interpretations  of the  pension  benefit prong.   Under  one

interpretation, the  exemption would  apply to  employees who

qualify as  high policymakers "provided that  these employees                                                        

receive  an adequate  pension."  Morrissey,  866 F.  Supp. at                                                      

649.   This view holds that  the pension benefit prong is not

"part of the test to determine if an employee can be retired,                                             

but rather [i]s  simply a requirement imposed on the employer

                             -16-                                          16

to  pay  out  $44,000 annually  in  benefits  for every  high

policymaker  compelled to  retire."   Id.   Under  the second                                                     

interpretation,  both the  job  function and  pension benefit                                 

prongs  of  the  exemption  comprise the  test  to  determine

whether compulsory retirement is permitted.  Id.                                                             

          We think the first  interpretation is more faithful

to the statute.  After all, Congress did not impose the  same

two-year minimum on  both prongs  of the exemption.   By  the

district  court's   analysis,  the  exemption   contains  two

distinct temporal  restrictions, one of which  applies to the

high policymaker prong, and the other of which applies to the

pension benefit prong:

          On  the  one  hand,   Congress  prevented
          manipulation  of   the  high  policymaker
          prong of the exemption by  requiring that
          high  policymakers  serve  for two  years                                                               
          before   the  exemption   applies;  thus,
          promotions  followed by  quick retirement
          are not permissible.  On the  other hand,
          more modest time  restrictions attach  to
          the pension funds prong:  Congress merely
          required  that an employee be entitled to
          an immediate benefit of  $44,000 annually                                  
          upon retirement.

Id.               

          Had Congress meant for both prongs to be subject to

the two-year  minimum, it  presumably would have  limited the

exemption  to  the  employee   who  "for  the  2-year  period

immediately  before retirement, is employed  in a .  . . high

policymaking  position,  [and]  .  .  .  is  entitled  to  an                                         

immediate nonforfeitable annual retirement benefit  . . . . "

                             -17-                                          17

That, however, is not  what Congress wrote.  Under  the ADEA,

the  high policymaker who is compelled to retire need only be

entitled to  the statutory minimum  amount in  nonforfeitable

annual pension benefits immediately upon retirement.

          In sum, we find the district court's analysis to be

persuasive and consistent with what the plain language of the

exemption would seem to require.4    

                  C.  The Rule 56(f) Motion                              C.  The Rule 56(f) Motion                                                       

          In opposition  to  the Bank's  motion  for  summary

judgment, Morrissey submitted a Rule 56(f) affidavit,  urging

that summary judgment  be denied or,  alternatively, deferred

on the ground that he had not had an opportunity to engage in

                                                    

4.  Our reading of the exemption forecloses Morrissey's other
argument, that both prongs of the exemption must be satisfied
at least as of the date  the employee receives notice of  his
involuntary retirement.  Morrissey  characterizes the date of
notice   of  retirement   as   the  time   of   the  act   of
discrimination.  As we  construe the statute, as long  as the
employee  is entitled to the  statutory minimum benefit as of
the day of  his involuntary  retirement, and as  long as  the
employee  is  otherwise  within  the exemption,  the  act  of
compelling the high policymaking  employee to retire does not
constitute an act of discrimination.
    It   also  forecloses   his  argument  that   the  Bank's
modification   of   his   benefits   should  be   viewed   as
"manipulation."  In support of this argument, Morrissey urges
the  case of  Passer v.  American Chem.  Soc'y, 935  F.2d 322                                                          
(D.C. Cir. 1991).   As  the district court  noted, Passer  is                                                                     
distinguishable from  the case before us  because it involved
"a  material dispute of fact  as to whether  the employee was
`genuinely  entitled by  the terms  of the  governing pension                                                                         
plan  to  at least  $44,000  in  annual retirement  income.'"                
Morrissey, 866 F. Supp.  at 650 (quoting Passer, 935  F.2d at                                                           
330) (emphasis added).  The "manipulation" in that case was a
matter  of interpretive  and accounting  legerdemain.   Here,
there is no question that Morrissey was genuinely entitled to
at least this amount by the terms of his plan as amended.

                             -18-                                          18

"meaningful discovery."5   At the  summary judgment  hearing,

the court responded  to the Rule 56(f) affidavit  by ordering

the Bank to produce documents,  including minutes of Board of

Directors meetings  that Morrissey had requested.   The court

also ordered  Morrissey to  file a  more specific  Rule 56(f)

affidavit.   Morrissey  responded  by  filing a  supplemental

memorandum  and affidavits  by  four  individuals,6 which  he

contends clearly demonstrated that he was removed from a high

policymaking   position  when  Blampied   became  CEO.    The

memorandum   also  requested   permission  to   depose  these

individuals.   On appeal,  Morrissey  contends that,  because

these  affidavits  demonstrated  the existence  of  a genuine

dispute  of material  fact,  the district  court should  have

                                                    

5.  Fed. R. Civ. P. 56(f) provides as follows:

          Should it appear from the affidavits of a
          party  opposing  the motion  [for summary
          judgment]  that  the  party   cannot  for
          reasons stated present by affidavit facts
          essential   to    justify   the   party's
          opposition,  the  court  may  refuse  the
          application  for judgment or  may order a
          continuance  to  permit affidavits  to be
          obtained  or depositions  to be  taken or
          discovery to  be  had or  may  make  such
          other order as is just.

6.  The   affiants  were  Vernon  L.  Blodgett,  Senior  Vice
President and Treasurer of the Boston Five Bancorp from 1990-
1993; J.  Barbara Magnuson,  Corporate Secretary at  the Bank
from  1986-1993;  Melissa  J.  Howard,  Vice   President  for
Marketing from  1987-1993; and Robert Spiller,  President and
CEO of the Boston Five and the Boston Five Bancorp from 1970-
1990.

                             -19-                                          19

denied  or deferred  summary  judgment to  allow for  further

discovery under Rule 56(f). 

          Rule 56(f) is  the means by which  a party opposing

summary judgment may obtain a denial or deferral of  judgment

upon  a  demonstration of  "an  authentic  need for,  and  an

entitlement to,  an additional  interval in which  to marshal

facts essential  to mount  an opposition."   Resolution Trust                                                                         

Co. v. North  Bridge Assocs.,  22 F.3d 1198,  1203 (1st  Cir.                                        

1994).  Although the  rule is "intended to safeguard  against

judges swinging the summary judgment axe too hastily," id., a                                                                      

party  who  seeks  to  invoke  the  rule  must  (i)  make  an

authoritative and  timely proffer;  (ii) show good  cause for

the failure to have  discovered these essential facts sooner;

(iii) present a  plausible basis for the  party's belief that

facts  exist that would likely suffice to raise a genuine and

material issue; and (iv) show that the facts are discoverable

within a reasonable amount of time.   Id.  See also Paterson-                                                                         

Leitch v.  Massachusetts Mun.  Wholesale Elec. Co.,  840 F.2d                                                              

985,  988  (1st Cir.  1988).   We  review a  district court's

denial of a Rule  56(f) motion only for abuse  of discretion.

Resolution Trust Co., 22 F.3d at 1203.                                

          The  supplemental  affidavits support  the argument

that, under CEO Blampied,  the Bank's high policymaking group

was no longer the Senior Officers Group, as it had been under

CEO Spiller, but rather comprised a subset of senior officers

                             -20-                                          20

that  did  not include  Morrissey.   These affidavits  do not

address  any of  the undisputed  facts  set forth  supra that                                                                    

unequivocally   establish   that   Morrissey   was   a   high

policymaker.   Accordingly, the district court  did not abuse

its discretion by refusing to  deny or defer summary judgment

on the basis of these affidavits.

                       IV.  Conclusion                                   IV.  Conclusion                                                  

          For the foregoing  reasons, we affirm the  district                                                  we affirm the  district                                                                         

court's order  granting summary judgment for the Bank.  Costs            court's order  granting summary judgment for the Bank.  Costs                                                                         

awarded to defendants.            awarded to defendants.                                  

                             -21-                                          21
