
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1727                                  FRANK B. WOODMAN,                                Plaintiff, Appellant,                                          v.                               HAEMONETICS CORPORATION,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Stuart DeBard for appellant.             _____________             Jeffrey M. Hahn, with whom  Foley, Hoag & Eliot was on  brief for             _______________             ___________________        appellee.                                                                                      ____________________                                    April 14, 1995                                                                                      ____________________                    CYR, Circuit Judge.  Plaintiff Frank B. Woodman appeals                    CYR, Circuit Judge.                         _____________          from  a  district  court  order  granting  summary  judgment  for          Haemonetics  Corporation ("HC"),  Woodman's former  employer, and          dismissing his claim  for wrongful discharge  under the Age  Dis-          crimination in Employment Act ("ADEA").   We vacate the  district          court judgment and remand for factfinding.                                           I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    Woodman was hired by  HC in January 1981 at  age forty-          eight.  For ten years he worked as a machinist, primarily in HC's          machine shop at Holbrook,  Massachusetts.  Throughout his employ-          ment as a machinist  he consistently earned favorable performance          reviews.   He  was  promoted twice,  receiving commensurate  wage          increases from $5.28 per  hour as a Machinist Trainee,  to $11.75          per hour as a Machinist B.                    In December  1990,  at  age  fifty-seven,  Woodman  was          transferred to the "bowl department" in Braintree, Massachusetts,          where HC manufactures disposable components for medical equipment          designed to  facilitate the collection, separation  and cleansing          of blood and blood constituents.   The medical equipment manufac-          tured in the  bowl department is fabricated under  sterile condi-          tions in a controlled-access area known as the "clean room."                                        ____________________               1The essential facts are recited in the light most favorable          to  appellant  Woodman,  the party  resisting  summary  judgment.          Velez-Gomez  v. SMA Life Assurance Co., 8 F.3d 873, 874 (1st Cir.          ___________     ______________________          1993).                                          2                    On  January  24,  1991,  Woodman  received  a  flawless          performance  report from  his  bowl  department supervisor,  Mary          LeBlanc.  Not only did he earn the highest possible rating in all          six review categories, but LeBlanc commented:  "[Y]our work since          joining bowls has  been exceptional.   You have  made a  positive          contribution in work and in adapting to change."                    Thereafter,  in  late  March  1991,  Mary  LeBlanc  was          succeeded by  Rick  Lucas as  Woodman's  supervisor in  the  bowl          department.   Lucas  began training  Woodman in  two non-assembly          line tasks    "material handling" (i.e., retrieving raw materials          for  use in the clean  room) and "bowl  packing" (i.e., packaging          the finished product).  The record discloses but  one performance          review  of Woodman  by Lucas,  in late  July 1991.    Though less          favorable  than the  LeBlanc report,  the Lucas  report indicated          that  Woodman was performing at an acceptable level.  Woodman was          rated "exceptional" in terms of dependability and "above average"          in terms of both customer/supplier relations and quality of work.          In no category did Woodman receive a rating lower than "average."          Lucas added, "Frank is a highly organized, consistent performer."                    John Barr became Vice President of Operations for HC in          mid-September  1991.   Shortly thereafter,  Barr directed  all HC          managers to reevaluate their  employees, with particular emphasis          on  flexibility (i.e.,  susceptibility to  cross-training and  to          multiple production-line responsibilities), reliability, partici-          pation (i.e., the capacity  to provide suggestions and contribute          to improved operational efficiencies) and quality and quantity of                                          3          work product.  The  record on appeal  does not reflect a  perfor-          mance  rating  on Woodman  under  Vice  President Barr's  revised          performance review procedure in the fall of 1991.   The record is          clear, however,  that many  HC employees did  receive performance          ratings  considered unacceptable  by Barr.   The  record evidence          also discloses that Barr  determined that HC could terminate  its          "C performers" without jeopardizing its production, while dramat-          ically reducing labor costs.                     Sometime in the fall of  1991, Mary LeBlanc resumed her          supervisory  role over  Woodman in the  bowl department.   Around          this same time,  LeBlanc was  privy to at  least one  discussion,          among members of HC's upper management, in which  future employee          terminations were discussed.   Following such  a meeting, and  in          the  presence  of  Woodman,  LeBlanc  referenced  the  management          discussion relating  to future terminations:   "These damn people              they want younger people here.   They will be the one[s] that          will  be  successful here."    Woodman's  affidavit attests  that          LeBlanc made similar statements on several occasions.                      During the time that HC's management was deciding which          employees were to  be terminated, Mary LeBlanc  submitted a memo-          randum,  dated  November  15,  1991,  describing  Woodman's  work          performance as  having been unsatisfactory throughout  the period          "since  July 1991."  The November 15 memorandum made no reference          to the performance review  by Lucas in late  July 1991.   LeBlanc          described Woodman as an "unmotivated worker" who "would prefer to          sit in the Bowl Prep  area and read for extended periods  of time                                          4          up to several  hours."  She noted further  that Woodman was slow,          routinely  requiring a minimum of thirty minutes to dress for the          sterile  conditions  in the  clean  room,  whereas the  requisite          procedures  should  take no  longer  than ten  minutes.   LeBlanc          reported that  Woodman possessed  limited skills:   "Frank cannot          perform 50% of line  operations to standard requirement.   He can          only be assigned  2 off line  jobs in the  clean room, where  his          performance will not affect production quantities."  Furthermore,          she  stated, despite  Woodman's  training  on most  assembly-line          operations,  his  inability  to  perform those  operations  in  a          satisfactory manner had led to  the abandonment of further train-          ing  efforts.  LeBlanc concluded:  "I recommend Frank be relieved          from his current duties."                      Five  days  later, in  a  reduction  in force  ("RIF"),          thirty-three  HC  employees  were terminated;  twelve,  including          Woodman, were bowl department  employees.  HC presented statisti-          cal evidence  demonstrating that  the ratio of  older to  younger          employees in  the bowl  department increased slightly  during the          reduction in  force; viz., 41%  over age  40 before the  RIF; 44%                               ___          after the RIF.2                      Woodman  received  written   notice  of  his  immediate          termination on  November 20,  which advised  that HC had  decided          that  it could "eliminate a  group of its  poorest performers and                                        ____________________               2However,  since the company-wide  data neither  support nor                                    ____________          undermine  the  contention that  the  RIF  had no  discriminatory          impact,  additional  information  would  be needed  to  draw  any          pertinent conclusion from these data.                                           5          still  meet  the production  plan."   Later,  HC reported  to the          Massachusetts Department of Employment  Training that Woodman was          discharged as part of a reduction in force involving the company-          's "poorest performers."  On March 2, 1993, Woodman initiated the          present suit in federal  district court, alleging age discrimina-          tion in violation of the ADEA.                      In due course, the statement attributed to Mary LeBlanc          by the Woodman  affidavit submitted in opposition to  HC's motion          for  summary  judgment was  excluded  by  the district  court  as          inadmissible "totem-pole" (i.e.,  multiple) hearsay,  "unavailing                                     ____          on a motion for summary judgment."  The court went on to conclude          that though Woodman  had made out a prima facie  case of age dis-          crimination, HC had rebutted  the resulting presumption of unlaw-          ful age discrimination by producing enough evidence, if credited,          to  enable a rational trier  of fact to  find a nondiscriminatory          basis  for  Woodman's  dismissal; viz.,  poor  work  performance.                                            ___          Ultimately,  the district court awarded summary judgment to HC on          the  ground that  Woodman  had not  proffered competent  evidence          sufficient to  generate a trialworthy issue as  to whether imper-          missible  age-based  discrimination  constituted a  determinative          factor in the dismissal.  Woodman appealed.                                          II                                          II                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We examine a grant of summary judgment de novo, viewing                                                           __ ____          the  evidence, and  all reasonable  inferences therefrom,  in the          light  most favorable  to the  party resisting  summary judgment.                                          6          O'Connor  v. Steeves, 994 F.2d 905, 907 (1st Cir.), cert. denied,          ________     _______                                ____  ______          114  S. Ct. 634 (1993).  Summary judgment is inappropriate unless          "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  and that          the moving party  is entitled to a judgment as  a matter of law."          Fed. R. Civ. P. 56(c); Henley Drilling Co. v. McGee, 36 F.3d 143,                                 ___________________    _____          144 (1st Cir. 1994).   No credibility assessment may  be resolved          in favor of the  party seeking summary judgment.   Velez-Gomez v.                                                             ___________          SMA Life Assurance Co., 8 F.3d 873, 877 (1st Cir. 1993).           ______________________                                         III                                         III                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Burden-Shifting Paradigm          A.   The Burden-Shifting Paradigm               ____________________________                    The  burden-shifting  framework announced  in McDonnell                                                                  _________          Douglas Corp. v.  Green, 411 U.S. 792,  802-04 (1973) ["McDonnell          _____________     _____                                 _________          Douglas"],  and imported for use  in ADEA cases,  see Keisling v.          _______                                           ___ ________          SER-Jobs  for Progress, Inc., 19  F.3d 755, 760  (1st Cir. 1994);          ____________________________          LeBlanc v. Great Am. Ins.  Co., 6 F.3d 836, 842 (1st  Cir. 1993),          _______    ___________________          cert.  denied,  114  S. Ct.  1398  (1994),  allocates  burdens of          ____   ______          production and orders  the presentation of  evidence so as  "pro-          gressively  to  sharpen  the  inquiry into  the  elusive  factual          question of intentional discrimination."  Texas Dept. of Communi-                                                    _______________________          ty Affairs  v. Burdine,  450 U.S.  248, 255 n.8  (1981); see  St.          __________     _______                                   ___  ___          Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2746 (1993).           _________________    _____                    At  the first  stage in  the McDonnell  Douglas matrix,                                                 __________________          Woodman was required  to make a prima  facie showing that  he (1)                                          7          was at least forty years old, (2) met HC's legitimate job perfor-          mance  expectations, (3)  experienced adverse  employment action,          and  (4) since the  challenged action was part  of a reduction in          ___                                                  _________ __          force, that HC did not treat age neutrally or it retained younger          _____                                      __          persons in  the same position.   Goldman  v. First Nat'l  Bank of                                           _______     ____________________          Boston,  985 F.2d 1113, 1117 (1st  Cir. 1993); LeBlanc, 6 F.3d at          ______                                         _______          842.   The required prima facie showing is not especially burden-          some, see Greenberg v. Union Camp Corp., No. 94-1312, slip op. at                ___ _________    ________________          4 (1st  Cir. Feb. 17, 1995); Smith  v. Stratus Computer, Inc., 40                                       _____     ______________________          F.3d 11, 15 n.4 (1st Cir. 1994), and once established, gives rise          to a rebuttable  presumption that the employer  engaged in inten-          tional  age-based  discrimination.   Goldman,  985  F.2d at  1117                                               _______          (citing  Burdine, 450 U.S. at 254).   As Justice Scalia stated in                   _______          Hicks,  the  rebuttable  presumption  ultimately  results  in  "a          _____                                 __________          required  conclusion  [viz.,   unlawful  discrimination]  in  the                                 ____                               __  ___          absence of explanation."   Hicks,  113 S. Ct.  at 2747  (emphasis          _______ __ ___________     _____          added).                      At the second stage  in the burden-shifting praxis, the          defendant-employer  must  produce sufficient  competent evidence,          "taken as true," to permit a rational factfinder to conclude that           _____ __ ____      ______          there was a "nondiscriminatory reason," id. at 2748  (emphasis in                                                  ___          original), for the challenged employment action, thereby displac-          ing the legal presumption of intentional discrimination generated          by the  plaintiff-employee's prima facie case.  Goldman, 985 F.2d                                                          _______          at  1117.   Since  neither credibility  issues nor  other factual          matters  in genuine  dispute are  to be  resolved under  it, "the                                          8          McDonnell Douglas framework . . . is no longer relevant" once the          _________________          defendant-employer has met its burden of production at the second          stage.  Hicks, 113 S. Ct.  at 2749.  The attendant legal presump-                  _____          tion of  intentional discrimination having served  its purpose             that  of "forcing  the defendant  to come  forward with  some re-          sponse"    it "drops out of the picture."  Id.                                                       ___                    At  that point,  the  defendant-employer's  motion  for          summary judgment  cannot succeed if the  plaintiff-employee, with          whom the  ultimate burden of persuasion  remains throughout, Vega                                       __________                      ____          v. Kodak Caribbean,  Ltd., 3 F.3d 476,  478 (1st Cir.  1993), has             ______________________          proffered  sufficient admissible evidence,  if believed, to prove          by  a preponderance of the  evidence each essential  element in a          prima facie case  and that the  employer's justification for  the          _____ _____          challenged employment action was merely a pretext for impermissi-          ble  age discrimination.  Id. at 479.  The plaintiff-employee may                                    ___          rely  upon the same evidence  to establish both  pretext and dis-          crimination, provided it  is adequate to enable a  rational fact-          finder reasonably to infer that intentional age-based discrimina-          tion was a determinative factor in the adverse employment action.          Goldman, 985 F.2d at 1117-18.            _______                    Where  the elements  of a  sufficient prima  facie case          combine with  the factfinder's  belief that the  ostensible basis          for dismissing the employee was pretextual, "particularly  if . .          .  accompanied by  a suspicion  of mendacity," the  factfinder is          permitted  to  infer  the  intentional  age-based  discrimination          _________          required  to  enable the  plaintiff-employee  to  prevail on  the                                          9          merits.  Hicks, 113  S. Ct. at 2749 ("The  factfinder's disbelief                   _____                             ____________          of  the reasons  put forward  by the  defendant (particularly  if          disbelief  is  accompanied  by  a suspicion  of  mendacity)  may,          together  with the elements of  the prima facie  case, suffice to          show intentional  discrimination.")  (emphasis added);  Woods  v.                                                                  _____          Friction Materials, Inc., 30  F.3d 255, 260 n.3 (1st  Cir. 1994).          ________________________          We conclude  that Woodman made out  just such a case  in the dis-          trict court, thereby precluding summary judgment for HC.                               __________          B.   Woodman's Prima Facie Case          B.   Woodman's Prima Facie Case               __________________________                    The district court correctly concluded that Woodman had          established a  prima facie  case of impermissible  age-based dis-          crimination  in  employment.   At  age  fifty-seven, Woodman  was          discharged as part of a reduction in force, while younger persons          were retained in the bowl  department.  See Goldman, 985 F.2d  at                                                  ___ _______          1117.  As the district court noted, the only substantial question          was whether Woodman had met the employer's legitimate job-perfor-          mance expectations.  Woodman cleared this hurdle with his proffer          of substantial wage  increases and ten years  of positive perfor-          mance reviews, blemished by  but one negative performance evalua-          tion five  days prior  to  the reduction  in force.   See,  e.g.,                                                                ___   ____          Woods,  30 F.3d at 261 (history  of largely favorable performance          _____          reviews and extensive experience in industry adequate to generate          at  least a genuine  issue as to  plaintiff-employee's ability to          meet  legitimate  job expectations);  Keisling,  19  F.3d at  760                                                ________          (similar).  It then became incumbent upon HC to rebut the result-                                          10          ing legal presumption that the determining factor in its decision          to discharge Woodman was impermissible age-based discrimination.                                           11          C.   HC's Rebuttal           C.   HC's Rebuttal               _____________                    At the second stage  in the McDonnell Douglas analysis,                           ______ _____         _________________          the  district court concluded     again correctly     that HC had          rebutted the legal presumption of intentional  age discrimination          with  evidence  relating  to  Woodman's  work  performance  since          joining the bowl department.  See  Hicks, 113 S. Ct. at 2748 ("By                                        ___  _____          producing evidence (whether ultimately persuasive or not) of non-                    ________          discriminatory  reasons, [defendants]  sustained their  burden of          production . . .  .").  Crediting the competent  evidence adduced          by HC, see  id., Woodman's  performance in the  machine shop  may                 ___  ___          have been very good, but he never  mastered the tasks required in          the  bowl department.    Thus, the  presumption  of unlawful  age          discrimination vanished from the case.  Id. at 2749; Vega, 3 F.3d                                                  ___          ____          at 479.                      In order to avoid summary judgment at that point it was                                _____          essential that  Woodman proffer sufficient competent  evidence to                                                     _________          generate  a trialworthy  issue on  the ultimate  question whether          intentional age-based  discrimination was a  determinative factor          in his dismissal.  Id.                               ___                    First,  Woodman attacked the  final performance evalua-          tion by Mary LeBlanc on November 15, 1991    five days before the          reduction in  force     by contrasting the  laudatory performance          review of January 24,  1991, with the  final review    less  than          nine months later    in which LeBlanc's assessment plummeted from          high praise to a  recommendation that Woodman be relieved  of his          current duties.   The Woodman affidavit itself attested  to facts                                          12          directly contradicting several key  assertions made by LeBlanc in          her final work  performance evaluation.  He  also tendered state-          ments from a former supervisor  in the machine shop and a  former          group leader  in  the  bowl department,  attesting  to  the  high          quality of his work.   Second, and most importantly,  the Woodman          affidavit asserted  that Mary LeBlanc had stated in his presence,          following  a  meeting with  upper  management  shortly before  HC          implemented its reduction in  force:  "These damn people     they          want younger people  here.  They will be the  one[s] that will be          successful here."                      Under  the summary judgment  analysis required once the          McDonnell  Douglas  framework dropped  out  of  the picture,  see          __________________                                            ___          Hicks, 113 S.  Ct. at  2749, the district  court was required  to          _____          consider  whether Woodman  presented sufficient  competent, i.e.,                                                           _________  ____          admissible,   evidence,  see Murphy  v. Timberlane  Regional Sch.                                   ___ ______     _________________________          Dist.,  22 F.3d 1186, 1196 (1st Cir.) (citing Anderson v. Liberty          _____                                         ________    _______          Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied,  115 S. Ct.          ___________                             ____  ______          484 (1994), to warrant  a trial on the ultimate  question whether          unlawful age-based  discrimination was a  determinative factor in          his dismissal by HC.   It was at this juncture that  the district          court excluded  the linchpin  in Woodman's opposition  to summary          judgment     the vicarious  admission that Woodman  attributed to          LeBlanc    as inadmissible "totem-pole" hearsay.            D.   Woodman's Demonstration of Pretext          D.   Woodman's Demonstration of Pretext               __________________________________                     The  twofold thrust implicit  in the evidentiary prof-          fers  made by  Woodman was  that the  November 15,  1991, LeBlanc                                          13          memorandum  severely  denigrating  his  work  performance  was  a          pretext for unlawful age-based discrimination  on the part of HC,          as indicated not only  by Woodman's own work-performance evidence          but  by the  vicarious HC  admission, through  LeBlanc,  that new          management disfavored older employees.                      The factfinding inquiry into pretext focuses on "wheth-          er  the  employer believed  its  stated reason  to  be credible."                   ________ ________          Goldman,  985 F.2d  at 1118  (quoting Mesnick,  950 F.2d  at 824)          _______                               _______          (emphasis  added).    Thus,  Woodman's  evidence,  including  the          vicarious admission made  through LeBlanc     if credited by  the          factfinder    would be  adequate not only to permit  a reasonable                                                       ______          inference  that  HC's  articulated  justification  for  Woodman's          dismissal was a mere  pretext for intentional age discrimination,          but also to generate a grave "suspicion  of mendacity" respecting          the  highly unfavorable  performance rating  made in  the LeBlanc          memorandum five days  prior to Woodman's  dismissal.  See  Hicks,                                                                ___  _____          113  S.  Ct. at  2749.3    Consequently,  the putative  vicarious                                        ____________________               3The statistical evidence presented by  HC, in an effort  to          show that older workers as a whole were not more severely affect-                                                  ___          ed  by  the reduction  in force,  is  clearly relevant  and might          strengthen  the employer's defense.   See Healy v.  New York Life                                                ___ _____     _____________          Ins. Co., 860 F.2d  1209, 1217 (3d Cir. 1988),  cert. denied, 490          ________                                        ____  ______          U.S. 1098 (1989) (disparate  treatment claim); see also Connecti-                                                         ___ ____ _________          cut v.  Teal, 457  U.S. 440, 454  (1982) ("[A]  nondiscriminatory          ___     ____          'bottom  line' and an employer's  good-faith efforts to achieve a          nondiscriminatory  work  force, might  in  some  cases assist  an          employer in  rebutting the  inference that particular  action had          been intentionally discriminatory.").  But by itself, rarely will          an  employer's  statistical  evidence  relating  to  company-wide          workforce  composition  provide  a conclusive  defense  against a          disparate  treatment discrimination  claim  at  summary  judgment          where the employee has established a prima facie case and pretext          accompanied  by a suspicion of mendacity.  See Healy, 860 F.2d at                                                     ___ _____          1218 (expressing skepticism concerning conclusiveness of employe-                                          14          admission  by  HC, through  LeBlanc, is  crucial  to our  de novo                                                                    __ ____          determination whether  HC was entitled  to summary judgment  as a          matter of law.  See Goldman, 985 F.2d at 1116.                            ___ _______               (i)  The Vicarious Admission               (i)  The Vicarious Admission                    _______________________                    On appeal,  HC argues that the  excluded statement does          not come  within Evidence  Rule 801(d)(2)(D) because  LeBlanc was          only a "first-line" supervisor, with no  authority to make termi-          nation   decisions.4  However that may be, Rule 801(d)(2)(D) does          not contemplate     as HC seems to  suppose    that the statement          be shown to have been made by the employee at the instance of her          employer, compare Fed.  R. Evid. 801(d)(2)(C) with  Fed. R. Evid.                    _______                             ____          801(d)(2)(D),  but only  that  the declarant's  statement concern                                                                    _______          matters within the scope  of her agency or  employment.  Fed.  R.          Evid.  801(d)(2)(D).   See,  e.g., Union  Mut.  Life Ins.  Co. v.                                 ___   ____  ___________________________                                        ____________________          r's uncontested data showing  no change in workforce composition,          both department-wide and company-wide, after reduction in force);          see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978)          ___ ____ ____________________    ______          ("A racially balanced work force cannot immunize an employer from          liability  for  specific  acts  of  discrimination.")  (disparate          treatment claim); Teal, 457 U.S. at 455 ("Congress never intended                            ____          to give an employer license  to discriminate against some employ-          ees . . . merely because he favorably treats other members of the          employees' group.") (disparate impact case).                4Rule 801(d)(2)(D) states that                     [a] statement is not hearsay  if . . .  [the]                    statement is offered  against a party  and is                    . . .  . a statement by the  party's agent or                    servant concerning a matter within  the scope                            __________                    of the agency or employment, made  during the                    existence of the relationship.          Fed. R. Evid. 801(d)(2)(D) (emphasis added).                                          15          Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986); Hoptowit v. Ray,          ______________                                   ________    ___          682 F.2d 1237, 1262 (9th Cir. 1982).                      The record reflects that  LeBlanc was acting within the          scope of  her  employment  in (i)  attending  the  HC  management          meeting,  (ii)  assessing  the  performance  of  bowl  department          employees under her supervision (including Woodman), and (iii) in                                                               ___          recommending that Woodman be relieved from his duties.  Thus, the          circumstantial  evidence  proffered  in  the   Woodman  affidavit          provided  a  plainly sufficient  foundation,  see  Fed. R.  Evid.                                                        ___          103(a)(2), for finding both that LeBlanc was directly involved in          the reduction in force and  that the excluded statement concerned          matters within the scope of her employment.  Indeed, any contrary          suggestion  is belied by HC's  firm reliance on LeBlanc's adverse          performance  evaluation as  the principal  justification  for its          decision  to  terminate  Woodman.   Finally,  the  circumstantial          evidence  proffered in  the  Woodman affidavit  attests, and  the          excluded statement itself reflects,  that LeBlanc purported to be          communicating to  Woodman information acquired at  the HC manage-          ment meeting.                    We conclude  that  though  the  Woodman  affidavit  may                                                                        ___          reflect that  LeBlanc's description  of HC management's  attitude          toward older workers  was predicated on  more than one  statement          made at the management meeting in LeBlanc's  presence, her state-          ment  to Woodman  was not  hearsay, even  though offered  for its          truth.  See Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir.                  ___ ______    ____________          1990)  (finding  no error  where  trial  court,  in ADEA  action,                                          16          admitted into evidence the  statement    made by manager  to sub-          ordinate     that "it's a concern of some of the guys in New York          that  some  of  our  people in  their  sixties  are  going  to be          replaced"); see also Brookover  v. Mary Hitchcock Memorial Hosp.,                      ___ ____ _________     _____________________________          893  F.2d  411,  417-18  (1st Cir.  1990)  (holding  that nurses'          statements that bed restraints  should have been used on  patient          were made within  scope of nurses'  employment); Union Mut.  Life                                                           ________________          Ins. Co., 793 F.2d at 8-9  (holding that statement by lower level          ________          accountant, charged with preparing billings relating to employer-          's leases, concerned matter  within scope of accountant's employ-          ment, in  circumstances  where information  upon which  proffered          statement  was based was located in  file in accountant's posses-          sion  within the scope of  employment).  Accordingly, the eviden-          tiary  ruling constituted an abuse of discretion, as it was based          upon a  misapplication of  Rule 801(d)(2)(D)  and  resulted in  a          denial of Woodman's right to trial on the ADEA claim.  See Siegal                                                                 ___ ______          v. American  Honda Motor Co.,  Inc., 921  F.2d 15,  17 (1st  Cir.             ________________________________          1990).                                           IV                                          IV                                      CONCLUSION                                      CONCLUSION                                      __________                    A  rational factfinder could  conclude that the errone-          ously excluded  non-hearsay statement attributed  to Mary LeBlanc          provided  cogent  evidence  probative  not only  of  pretext  and          impermissible  age-based discrimination  on the  part of  HC, see                                                                        ___          Goldman, 985 F.2d at 1117-18 (plaintiff-employee may rely on same          _______          evidence  to prove both pretext  and discrimination), but also of                                          17          the untruthfulness of the  LeBlanc performance review immediately              ______________          preceding  Woodman's dismissal.  See  Hicks, 113 S.  Ct. at 2749.                                           ___  _____          We  express no  view  whatever on  these  credibility issues,  of          course, except to  note that at  summary judgment such  questions          were to be resolved in favor of Woodman.  See Velez-Gomez, 8 F.3d                                                    ___ ___________          at  877.   HC  was not  entitled to  summary judgment,  given the          competent  evidentiary proffer  that its  articulated  reason for          discharging  Woodman was  an untruthful  pretext for  intentional          age-based  discrimination.    See  Hicks, 113  S.  Ct.  at  2749.                                        ___  _____          Consequently, the district court judgment must be vacated and the          ADEA claim must be remanded for factfinding.                      The district  court judgment is  vacated.  The  case is                    The district  court judgment is  vacated.  The  case is                    ________________________________________   ____________          remanded  for further  proceedings consistent with  this opinion.          remanded  for further  proceedings consistent with  this opinion.          ________________________________________________________________          Costs are awarded to appellant.          Costs are awarded to appellant.          ______________________________                                          18
