

                      [NOT FOR PUBLICATION] 

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-1899

                     ISABELO VALLEJO-SERRANO,

                      Plaintiff, Appellant,

                                v.

                   CIGNA INSURANCE CO., ET AL.,

                      Defendants, Appellees.
                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 
                                           

                              Before

                     Torruella, Chief Judge,                                                     
                  Coffin, Senior Circuit Judge,                                                        
                    and Selya, Circuit Judge.                                                      

                                           

     Zuleika Llovet-Zurinaga for appellant.                                      
     Pedro J.  Manzano-Yates with whom Jose  A. Silva-Cofresi was                                                                       
on brief for appellees.

                                           

                           May 23, 1997
                                          

     Per Curiam.  Appellant Vallejo-Serrano filed this employment                         

discrimination lawsuit  against Cigna  Insurance Co.  and several

supervisors claiming  that he  was transferred to  an undesirable

position, and later refused  reinstatement after a medical leave,

because  of his age and  disability.  The  district court granted

summary judgment for defendants.   It concluded that Vallejo  had

failed  to  establish  a  prima  facie  case  of  either  age  or

disability  discrimination, and that  he had failed  to show that

the company's proffered reasons  for its actions were pretextual.

We conclude that appellant failed to establish a prima facie case

on  the  disability  claim,  and  that  the  evidence  is  wholly

inadequate to support an age discrimination claim.   We therefore

affirm.  

     The  parties  both  maintain  that  the  appropriateness  of

summary  judgment  turns  on  whether Vallejo  made  an  adequate

showing under the fourth  prong of the McDonnell  Douglas burden-                                                                   

shifting paradigm, the first  three prongs concededly having been

satisfied.  See McDonnell  Douglas Corp. v. Green, 411  U.S. 792,                                                           

802-05  (1973).   They  further  agree that,  for  the disability

discrimination   claim,   this   model   required   appellant  to

demonstrate  that  he  was  replaced by  a  non-disabled  person.

Although  appellant  asserts that  there  is at  least  a factual

dispute concerning  whether he was "replaced"  by Felix Vazquez,1

                                                  

     1  Although Vallejo's  complaint  also asserts  that he  was
replaced  by Josefina  Bermudez and  her temporary  assistant, he
does  not press this position on appeal, apparently because their
duties were quite distinct.

                               -2-

the evidence does not  support his contention.  It  is undisputed

that Vazquez already held a position equivalent to appellant's in

the Accounting Department, and  that appellant was the accounting

clerk  with the least seniority.   The fact  that Vazquez assumed

most  of  appellant's  tasks,   along  with  his  own  diminished

workload,   is  insufficient  to  establish  that  appellant  was

"replaced."   See LeBlanc v. Great American Ins. Co., 6 F.3d 836,                                                              

846 (1st Cir. 1993) ("A discharged employee `is not replaced when

another employee is assigned to perform the plaintiff's duties in

addition to other duties, or when the work is redistributed among

other    existing    employees    already   performing    related

work.'"(citation omitted)).

     As  for  the age  discrimination  claim,  which involves  an

alleged   reduction  in  force,   the  burden-shifting  framework

required  appellant to show either  that Cigna did  not treat age

neutrally  or  that  it  retained  younger persons  in  the  same

position.    Arguably, Vallejo's  evidence  satisfied  the fourth

prong  because  it  showed  that   the  others  retained  in  the

accounting clerk positions were younger than him.  The  company's

rationale,  however, was that he  was the least  senior person in

that position -- a fact he does not dispute.  Under the McDonnell                                                                           

Douglas framework,  Vallejo needs to respond  to that explanation                 

by  demonstrating that it  is a  pretext for  age discrimination.

The record,  however, makes  reference to  only  a single  remark

concerning age allegedly made by appellant's supervisor more than

a  year before his transfer from the Accounting Department.  This

                               -3-

is  insufficient to go to the jury.2   See LeBlanc, 6 F.3d at 843                                                            

("[T]he plaintiff cannot avert summary  judgment if the record is

devoid  of  adequate   direct  or   circumstantial  evidence   of

discriminatory animus on the part of the employer.").3

     The judgment of the district court is therefore affirmed.4

                                                  

     2 Indeed, plaintiff did not make reference to this remark in
his  memorandum in  support  of  his  opposition to  the  summary
judgment motion.

     3 Although the district court's opinion in certain instances
uses language that suggests factfinding, see, e.g., Opinion at 13                                                            
("We  believe that plaintiff's age or disability was not a factor
when Cigna decided to eliminate Mr. Vallejo's position, and later
deny him reinstatement"; "Cigna eliminated Mr. Vallejo's position
because  the  Accounting  Department  could  operate  efficiently
without  the  extra  accounting  clerk  position.");  id.  at  15                                                                   
("Cigna's refusal  to reinstate plaintiff after  his release from
the SIF  was not of a discriminatory  animus."), it is clear from
the opinion as a  whole that the court  found as a matter of  law                                                                           
that Vallejo had failed to adduce sufficient evidence to send the
case  to a factfinder.   We note  that the court's  task was made
more difficult by  the plaintiff's failure  to file the  required
separate statement of contested facts.

     4 Vallejo  also alleged  a  retaliation claim  based on  his
having filed a complaint with the Anti-Discrimination Unit of the
Labor Department  following his  transfer in September  1993, and
the company's  subsequent refusal  to reinstate him  in September
1994.   The  decision not  to reinstate  him was  consistent with
Commonwealth  law, however, and there is no support in the record
for a finding that it was motivated by retaliatory animus.

                               -4-
