
USCA1 Opinion

	




          June 8, 1992          [NOT FOR PUBLICATION]                              _________________________          No. 91-2334                                    CONRAD GRAHAM,                                Plaintiff, Appellant,                                          v.                               GORHAM SCHOOL DISTRICT,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Roney,* Senior Circuit Judge,                                    ____________________                            and Pieras,** District Judge.                                          ______________                              _________________________               Shawn  J. Sullivan,  with whom  Cook &  Molan, P.A.,  was on               __________________              ___________________          brief, for appellant.               Eleanor H. MacLellan, with whom  Sulloway Hollis & Soden was               ____________________             _______________________          on brief, for appellee.                              _________________________                              _________________________          _______________          *Of the Eleventh Circuit, sitting by designation.          **Of the District of Puerto Rico, sitting by designation.                    Per  Curiam.   This is  a failure-to-hire  suit brought                    ___________          pursuant  to the  federal  Age Discrimination  in Employment  Act          (ADEA),  29 U.S.c.    621-634 (1988).  The district court granted          summary  judgment  in  the  defendant's  favor.    The  plaintiff          appeals.  We affirm.                    The court  below premised its  order on a  finding that          plaintiff  "offered  no  evidence  to  suggest  that  defendant's          proffered justification for not hiring him is, in fact, an effort          on defendant's part  to disguise a discriminatory  animus,"  thus          failing  to create a triable  issue on the  question of pretext.1          The  plaintiff's attempt  to cast  doubt upon  this finding  as a          matter of fact is jejune.  When, as here, the focus is on what we          have termed "the  ultimate question," that  is, "whether, on  all          the evidence of record, a rational factfinder could conclude that          age  was a determining factor in the employer's decision [to fire          the employee]," Mesnick v.  General Elec. Co., 950 F.2d  816, 825                          _______     _________________          (1st Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3689 (U.S.                           ________________________          March  9,  1992),  the  plaintiff  must  produce  some  probative          evidence of  a particularized  discriminatory animus in  order to          survive  summary judgment.  Id. at 825-26.  The evidence produced                                      ___          must be sufficiently sturdy so that "a rational jury could infer,          without  the  most  tenuous  insinuation,"  that  the  employer's          professed reason for firing the plaintiff "was actually a pretext                                        ____________________               1The lower court found that the  plaintiff had established a          prima facie case.  We question one component of that finding but,          _____ _____          for  purposes of this  opinion, we assume  arguendo, favorably to                                                     ________          plaintiff, that the court was correct.                                          2          for age discrimination."  Id. at 826 (emphasis in original).  The          ______________________    ___          record  before  us contains  no  such  accumulation of  probative          evidence.   The scraps to  which the plaintiff  alludes, taken in          the  light most congenial to his cause, are less weighty than the          evidence  we  have  ruled  inadequate  in  a   series  of  other,          comparable  cases.2    See,   e.g.,  id.;  Medina-Munoz  v.  R.J.                                 ___    ____   ___   ____________      ____          Reynolds Tobacco Co., 896 F.2d 5, 9-10 (1st Cir. 1990); Menzel v.          ____________________                                    ______          Western  Auto Supply Co., 848  F.2d 327, 329-30  (1st Cir. 1988);          ________________________          Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987).          ___    ____                    The plaintiff  also argues that it  was unnecessary for          him   to   produce   direct   or   circumstantial   evidence   of          discriminatory  animus,  asseverating  that  such  animus  can be          inferred from a showing of pretext, without more.  This argument,          however, flies in the  teeth of settled circuit precedent.   See,                                                                       ___          e.g., Mesnick,  supra; Medina-Munoz,  supra; Menzel,  supra; Dea,          ____  _______   _____  ____________   _____  ______   _____  ___          supra; see  also Connell v. Bank  of Boston, 924 F.2d  1169, 1175          _____  ___  ____ _______    _______________          (1st Cir.),  cert. denied, 111  S. Ct. 2828  (1991).   The course                       _____ ______          that plaintiff proposes is simply not  open to us.  We have held,          with echolalic  regularity, that in a  multi-panel circuit, newly          constituted panels are bound by  prior panel decisions closely in          point.   See,  e.g.,  Fournier v.  Best  Western Treasure  Island                   ___   ____   ________     ______________________________          Resort, ___ F.2d ___, ___ (1st Cir.  1992) [No. 91-2174, slip op.          ______          at 4]; Metcalf & Eddy,  Inc. v. P.R.A.S.A., 945 F.2d 10,  12 (1st                 _____________________    __________          Cir.  1991), cert. granted, 112 S. Ct. 1290 (1992); United States                       _____ _______                          _____________                                        ____________________               2Indeed,  plaintiff's  counsel  admitted  as  much  at  oral          argument.                                          3          v. Wogan, 938 F.2d  1446, 1449 (1st  Cir.), cert. denied, 112  S.             _____                                    _____ ______          Ct.  441 (1991); Kotler v.  American Tobacco Co.,  926 F.2d 1217,                           ______     ____________________          1223  (1st Cir. 1990), petition for cert. filed, 59 U.S.L.W. 3674                                 ________________________          (U.S.  March 19, 1991); Jusino  v. Zayas, 875  F.2d 986, 993 (1st                                  ______     _____          Cir. 1989); Lacy v. Gardino, 791  F.2d 980, 985 (1st Cir.), cert.                      ____    _______                                 _____          denied,  479 U.S. 888, (1986).   "The orderly  development of the          ______          law,  the  need  for  stability,  the   value  of  results  being          predictable over  time, and the importance  of evenhanded justice          all counsel  continued fidelity  to this  principle."   Metcalf &                                                                  _________          Eddy, 945 F.2d at 12.3  We adhere to stare decisis here.          ____                                 _____ _______                    We need go no  further.  Because we, like  the district          court,  are unable  to find  in this  record any  evidence fairly          probative  of age discrimination, and  because we are both unable          and  unwilling to alter  clear circuit precedent,  we must affirm          the  judgment below.    The ADEA,  after  all, "does  not  stop a          company  from  discharging an  employee for  any reason  (fair or          unfair) or  for no reason, so  long as the decision  to fire does          not  stem from the person's  age."  Freeman  v. Package Machinery                                              _______     _________________          Co., 865 F.2d 1331, 1341 (1st Cir. 1988).  By the same token, the          ___          ADEA  does  not prohibit  an employer  from  refusing to  hire or          promote an applicant                                         ____________________               3There are, of  course, certain narrowly defined  exceptions          to the  principle, such as  when a  panel opinion is  undercut by          controlling authority  subsequently  announced, or  when such  an          opinion must yield to "the most persuasive showing  of collateral          authority."   Metcalf  & Eddy,  945 F.2d  at 13.   None  of these                        _______________          exceptions apply to the case at hand.                                          4          for any reason (fair  or unfair) or for no reason, so long as age          does not creep into the calculus.          Affirmed.          ________                                          5
