
USCA1 Opinion

	




          April 14, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2156                                   DAVID FRANKINA,                                Plaintiff, Appellant,                                          v.                            FIRST NATIONAL BANK OF BOSTON,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________             Denise M. Leydon with whom Weston, Patrick, Willard & Redding was             ________________           __________________________________        on brief for appellant.             Richard P.  Ward with whom Robert B. Gordon and Ropes & Gray were             ________________           ________________     ____________        on brief for appellee.                                 ____________________                                 ____________________                    Per Curiam.  The First National Bank of Boston ("Bank")                    Per Curiam.                    __________          terminated the employment of appellant David Frankina pursuant to          a reduction in force.   Frankina sued the Bank,  asserting claims          for age discrimination, in violation of the Age Discrimination in          Employment Act  ("ADEA"), 29 U.S.C.    621-34,  and the Massachu-          setts Fair  Employment Practices  Act, Mass.  Gen.  L. ch.  151B;          breach of an alleged  lifetime-employment contract; and breach of          an alleged  preferential-rehiring agreement.  The  district court          granted summary judgment.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    We  relate the  facts in  the light  most favorable  to          appellant.  See  Newport Plaza Assoc.  v. Durfee Attleboro  Bank,                      ___  ____________________     ______________________          ___  F.2d ___, ___  (1st Cir. 1993),  No. 92-1444, slip  op. at 6          (1st Cir. Feb. 16, 1993).  In 1962,  Herb Ericson, a Bank person-          nel  officer,  hired David  Frankina  as  a Security-Cage  Clerk.          Ericson represented  that  Frankina would  have  a job  for  life          unless he committed  a criminal  act against the  Bank.   Ericson          also told Frankina that  the Bank had never laid  off an employee          in its 200-year history.  Throughout his twenty-seven year tenure          with  the  Bank, Frankina  became aware  of  no employee  who was          terminated except for criminal conduct.                      In 1989,  the Bank launched a  large-scale reduction in          its work force due to mounting losses in its Treasury and Banking          Services operation.  The  Bank completely reorganized the Banking          Services component of the department, reconfiguring approximately          252 operational functions into approximately 135 functions.  As a          result,  119 positions  were  eliminated.   Thomas Keane,  Senior          Operations Manager  of  the Capital  Asset  Services  Department,          determined  that it was necessary  to eliminate two  of the seven          positions in the Control Unit to eliminate functional redundancy.                    After  reviewing  recent  employee performance  evalua-          tions, and  based  on his  personal  knowledge of  employee  work          habits, Keane selected two  Control Unit employees for dismissal:          a thirty-five year  old, and Frankina,  then forty-seven.   Keane          concluded  that the  thirty-five  year old  lacked the  necessary          skills  and had the least  experience, and that  Frankina was the          least  qualified employee in the Unit.  Keane found that Frankina          had  relatively  poor  work  habits,  experienced  difficulty  in          completing assigned  tasks, and was least  well-suited to perform          the  work duties in the  reconfigured organization.   Four of the          five Control Unit  employees who were retained were  younger than          Frankina.1                    On May 19, 1989, Keane  and Gerard Demone, Senior Human          Resources Manager, met with Frankina to inform him of the layoff,          describe  the  severance  benefits, and  offer  professional job-          search assistance.   Demone  told Frankina that  job applications          from laid-off employees would  be given preferential treatment in                                        ____________________               1One retained employee was forty-nine  years old at the time          of the reorganization, two  were forty-one, one was thirty-seven,          and one  was thirty-one.   Frankina suggests that  the forty-nine          year  old was  not  similarly situated  because  he served  in  a          managerial capacity.                                          4          the  Bank's hiring  process.   Frankina subsequently  applied for          more than fifty positions with the Bank.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    A  virtual "carbon  copy" suit  was brought  by another          former  Bank employee in Goldman  v. First Nat'l  Bank of Boston,                                   _______     ___________________________          ___  F.2d ___  (1st Cir.  1993), No.  92-1773 (1st  Cir. Feb. 12,          1993).   Thus, we rely  extensively on our  Goldman analysis.  In                                                      _______          Goldman, we  defined the applicable summary  judgment standard as          follows:                         We review a grant of summary judgment de                                                               __                    novo, employing the  same criteria  incumbent                    ____                    upon  the  district court  in  the  first in-                    stance.   Pedraza v. Shell Oil  Co., 942 F.2d                              _______    ______________                    48, 50  (1st  Cir. 1991),  cert. denied,  ___                                               ____  ______                    U.S.  ___, 112  S. Ct.  993 (1992).   Summary                    judgment  is  appropriate  where the  record,                    including the pleadings, depositions, answers                    to interrogatories, admissions  on file,  and                    affidavits,  viewed in the  light most favor-                    able to the nonmoving party, reveals no genu-                    ine issue  as to  any material fact,  and the                    moving  party is  entitled to  judgment as  a                    matter of law.   See Fed.  R. Civ. P.  56(c);                                     ___                    Canal  Ins. Co.  v. Benner,  980 F.2d  23, 25                    _______________     ______                    (1st  Cir. 1992); see also Mesnick v. General                                      ___ ____ _______    _______                    Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991),                    _________                    cert. denied,  ___ U.S. ___, 112  S. Ct. 2965                    ____  ______                    (1992).   The nonmoving  party "may  not rest                    upon the  mere allegations or denials  of the                    . . .  pleadings, but  . . .  must set  forth                    specific facts showing that  there is a genu-                    ine issue for trial."  Fed. R. Civ. P. 56(e).                    See Anderson v. Liberty Lobby, Inc., 477 U.S.                    ___ ________    ___________________                    242,  248 (1986).   There  is  no trialworthy                    issue unless there  is enough competent  evi-                    dence to  enable a  finding favorable  to the                    nonmoving party.   Id. at  249 (citing  First                                       ___                  _____                    Nat'l Bank of Arizona  v. Cities Service Co.,                    _____________________     __________________                                          5                    391  U.S. 253,  288-89  (1968)).    Moreover,                    "[e]ven in cases  where elusive concepts such                    as  motive or  intent are  at issue,  summary                    judgment  may be appropriate if the nonmoving                    party  rests  merely upon  conclusory allega-                    tions, improbable inferences, and unsupported                    speculation."  Medina-Munoz v.  R.J. Reynolds                                   ____________     _____________                    Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).                    ___________          Goldman, slip op. at 4-5.          _______          A.   Age Discrimination Claims          A.   Age Discrimination Claims               _________________________                    Frankina maintains  that he adduced enough  evidence to          generate a trialworthy issue as to whether the termination of his          employment was  motivated by age discrimination,  and argues that          the  district court impermissibly  weighed the competing evidence          rather than viewing it in the light most favorable to him.               1.  The Burden-Shifting Paradigm               1.  The Burden-Shifting Paradigm                   ____________________________                    The plaintiff bears the ultimate burden of proving that          his age was the  determinative factor in his discharge.   Mesnick                                                                    _______          v. General Electric Co., 950 F.2d 816, 823 (1st Cir. 1991), cert.             ____________________                                     ____          denied,  ___ U.S. ___,  112 S. Ct.  2965 (1992).   "Absent direct          ______          evidence  of  age  discrimination,  the  familiar burden-shifting          framework established  in [McDonnell  Douglas] comes  into play."                                     __________________          Goldman,  slip op. at 6.   See McDonnell  Douglas Corp. v. Green,          _______                    ___ ________________________    _____          411 U.S. 792, 802-05 (1973).  As we explained in Goldman:                                                           _______                    First, the plaintiff must make a prima  facie                    showing of discrimination;  that is,  [Frank-                    ina]  must  demonstrate that  he  (1) was  at                    least forty years of age, (2) met the employ-                    er's legitimate job performance expectations,                    (3)  experienced  adverse employment  action,                    and (4) was replaced by a person with roughly                    equivalent job qualifications.   A  plaintiff                    whose employment was terminated in the course                                          6                    of a reduction in  force need not demonstrate                    that he  was replaced, but may  show that the                                 ________                    employer did not treat  age neutrally or that                    younger  persons  were retained  in  the same                    position.                         Establishment  of  the prima  facie case                    creates a  presumption that the  employer un-                    lawfully discriminated  against the employee,                    and the  burden of  production shifts  to the                    defendant-employer to articulate some legiti-                    mate, nondiscriminatory reason  for the  ter-                    mination.  The  burden of persuasion  remains                    with the plaintiff-employee at all times.                         The presumption of unlawful age discrim-                    ination generated by the plaintiff-employee's                    prima  facie   showing  dissipates,  however,                    provided  the employer sustains its burden of                    production; the  plaintiff-employee must then                    demonstrate that the proffered reason for the                    adverse employment action  was simply a  pre-                    text for  age discrimination.   The plaintiff                    must do  more than cast doubt  on the employ-                    er's justification for the challenged action;                    there must be a sufficient  showing that dis-                    criminatory  animus   motivated  the  action.                    Direct or indirect evidence of discriminatory                    motive may  do, but  the evidence as  a whole                    must be  sufficient  for a  reasonable  fact-                    finder  to infer that the employer's decision                    was motivated by age animus.                         Under First Circuit caselaw,  the plain-                    tiff-employee  must  adduce minimally  suffi-                    cient evidence of pretext  and discriminatory                                               ___                    animus.  A showing that the employer's justi-                    fication  was not  the actual  motive may  be                    enough if the facts and circumstances raise a                    reasonable  inference of  age discrimination.                    Nevertheless,  the plaintiff-employee  cannot                    avert  summary judgment if  the record is de-                    void  of  [both]  direct  and  circumstantial                               ____           ___                    evidence of discriminatory animus on the part                    of the employer.          Goldman, slip  op. at 6-8 (internal citations and quotation marks          _______          omitted).                                          7                    It is not disputed that Frankina made out a prima facie          age discrimination claim, nor that the Bank articulated a nondis-          criminatory motive for Frankina's dismissal,  i.e., that economic                                                        ____          considerations necessitated a reduction in force and Frankina was          the  "least  qualified employee"  in his  unit.   The  dispute on          appeal  centers  on  the third  stage  of  the  McDonnell Douglas                                                          _________________          analysis.  The district court acknowledged that Frankina present-          ed some evidence to counter the Bank's characterization of him as          a poor performer, but  ruled that Frankina presented insufficient          evidence of pretext and  discriminatory animus.  Accordingly, the          Bank was awarded summary judgment on Frankina's state and federal          age-discrimination claims.2                                        ____________________               2The complaint  alleged parallel  claims under the  ADEA and          its  Massachusetts  counterpart,  Mass.  Gen. L.  ch.  151B.   On          appeal, Frankina  asserts for  the first time  that Massachusetts          applies  a less onerous standard of proof to claims brought under          the Massachusetts statute than this court applies to ADEA claims,          see infra  note 4,  and that  his state  claim therefore  must be          ___ _____          addressed  separately.   However,  Frankina  did not  distinguish          these claims  in  his opposition  to  summary judgment,  and  the          district  court analyzed  them  collectively,  noting  only  that          "courts apply the same analysis  to state and federal discrimina-          tion  claims."   We decline  to address  this newfound  claim, as          "theories  not raised  squarely in the  district court  cannot be          surfaced for the first  time on appeal."  McCoy  v. Massachusetts                                                    _____     _____________          Inst.  of  Technology, 950  F.2d 13,  22  (1st Cir.  1991), cert.          _____________________                                       _____          denied, ___ U.S. ___, 112 S. Ct. 1939 (1992);   see also Poliquin          ______                                          ___ ____ ________          v. Garden Way,  Inc., ___ F.2d ___ (1st Cir. 1993), Nos. 92-1115,             _________________          92-1116, slip op. at 8 (1st  Cir. Mar. 24, 1993) (explaining that          in the "winnowing process" of litigation, the raise-or-waive rule          enables  courts to  "narrow what  remains to  be decided[;]  [i]f          lawyers could pursue on appeal issues not  properly raised below,          there would  be little incentive to  get it right  the first time          and no end of  retrials").  Although the raise-or-waive  rule may          be relaxed in an  exceptional case when a miscarriage  of justice          would otherwise result, see  Johnston v. Holiday Inns,  Inc., 595                                  ___  ________    ___________________          F.2d 890, 894  (1st Cir. 1979)  (quoting Dobb v. Baker,  505 F.2d                                                   ____    _____          1041,  1044 (1st Cir. 1974)), our holding that Frankina failed to          adduce  sufficient evidence  of pretext,  see infra  Part II.A.2,                                                    ___ _____                                          8                                                  ____________________          would  make summary judgment  proper even under  the less onerous          standard of proof urged by Frankina.                                          9               2.  Evidence of Pretext               2.  Evidence of Pretext                   ___________________                    "In  assessing pretext,  [our]  'focus must  be on  the          perception of  the decisionmaker,' that is,  whether the employer                                                                   ________          believed its stated reason to be credible."  Mesnick, 950 F.2d at                                                       _______          824 (quoting Gray v. New  England Tel. & Tel. Co., 792  F.2d 251,                       ____    ____________________________          256 (1st Cir. 1986)) (emphasis added).  Frankina does not dispute          that economic considerations necessitated  a reduction in  force,          but  argues that  he produced  sufficient  evidence to  rebut the          Bank's contention that he was the least qualified employee in his          unit.                    Frankina produced ample evidence  that the Bank did not          consider his  work performance unsatisfactory  in absolute terms:          he was given merit salary increases on a regular basis throughout          his tenure;  none of  his performance evaluations  indicated that          his  job performance  was unacceptable;  his overall  performance          rating in  1986 was "outstanding," the  highest rating available;          and he  received no  warnings relating to  his work  performance.          The  Bank's justification for  Frankina's discharge, however, was          not that his performance was unsatisfactory in an absolute sense,          but that he was the least qualified employee in the Control Unit.                              _____ _________          Thus, refutation of the  Bank's proffered justification  required          evidence  permitting a trier of  fact reasonably to conclude that          Frankina's abilities and qualifications were equal or superior to          employees  who  were retained.   Goldman,  slip  op. at  10.   As                                           _______                                          10          Frankina made no such evidentiary showing in the district  court,          he failed to demonstrate a trialworthy issue.3               3.  Evidence of Age Animus               3.  Evidence of Age Animus                   ______________________                    "Evidence of age animus need not be of the 'smoking gun          variety,'  but the  totality of the  circumstances must  permit a          reasonable inference that  the employer's  justification for  the          challenged  action was a pretext for  age discrimination."  Gold-                                                                      _____          man, slip op. at 11 (quoting Connell v. Bank of  Boston, 924 F.2d          ___                          _______    _______________          1169, 1175  (1st Cir.), cert.  denied, ___ U.S.  ___, 111 S.  Ct.                                  _____  ______          2828  (1991)).    Frankina contends  that  an  inference  of dis-          criminatory  animus on  the  part of  the  Bank arises  from  the          following evidence:  Frankina and six other former Bank employees          dismissed  pursuant to  the reduction  in force  were the  oldest          employees and had the longest service records in their respective          units;  the termination  of  older, more  costly employees  would          optimize the  cost reductions  achieved through the  reduction in          force; of the 119 terminated employees, 41% were over forty years          of  age, but  only 24%  of those  subsequently rehired  were over          forty; under  a new  retirement plan  introduced  in 1989,  which          required the Bank  annually to  contribute a  percentage of  each          employee's salary to a "Cash Balance" account, the Bank deposited          a decreasing percentage of salary to an employee's account as the          employee reached the  upper service brackets;  and the Bank  dis-                                        ____________________               3Although Frankina  argues  on appeal  that his  performance          evaluations  in 1987  and  1988 were  equivalent  to those  of  a          younger colleague  who was  retained, he waived  the argument  by          failing to raise it below.  See supra note 2.                                        ___ _____                                          11          banded  the  "Quarter  Century  Club,"  a  Bank-sponsored  social          organization  for employees  with  twenty-five years  or more  of          service.                    We  considered the identical  evidence in  Goldman, and                                                               _______          concluded that:                    at best the record  reveals that a small num-                    ber of those discharged were  among the older                    employees in their respective units, that the                    Bank implemented a new pension plan which has                    in no measure been  shown to have been disad-                    vantageous to older  employees, and that  the                    Bank  stopped  funding  the  Quarter  Century                    Club.   The gap between this  evidence and an                    inference of age discrimination could only be                    bridged by impermissible inference.          Id. at  15-16.  We reach  the same conclusion here,  based on the          ___          grounds detailed  in Goldman.  See id. at 11-16.  As the evidence                               _______   ___ ___          presented  in the  district court  was insufficient  to enable  a          factfinder reasonably to conclude that the articulated reason for          Frankina's termination was pretextual or that his termination was          motivated  by age animus, we affirm the grant of summary judgment          on the age discrimination claims.4           B.  Breach of Lifetime Employment Contract          B.  Breach of Lifetime Employment Contract              ______________________________________                    Next, Frankina argues that summary judgment was improp-          er on his  claim for  breach of a  lifetime employment  contract.          The  district  court found  that  Frankina failed  to  generate a                                        ____________________               4Frankina argues  that our cases place a more onerous burden          on an ADEA plaintiff than that envisioned by the Supreme Court in          McDonnell Douglas and  Texas Dep't of  Community Affairs v.  Bur-          _________________      _________________________________     ____          dine, 450  U.S. 248  (1981).   As  we rejected  this argument  in          ____          Goldman, we do not  discuss it here.  See Goldman,  slip op. at 8          _______                               ___ _______          n.4.                                          12          trialworthy  issue as  to whether the  person who  hired Frankina          possessed  actual or  apparent authority  to bind  the Bank  to a          lifetime employment contract.  We agree.                    Frankina  maintains  that Bank  personnel  officer Herb          Ericson offered him lifetime  employment by representing that the          Bank had never laid off employees and that Frankina  would have a          job for life unless he committed a criminal act against the Bank.          Moreover,  he  argues, the  concept  of  lifetime employment  was          reinforced throughout his tenure at the Bank as he never  knew of          an  employee being  dismissed except for  criminal conduct.   For          present purposes,  we  assume, without  deciding, that  Ericson's          representations were  sufficient to  impart an offer  of lifetime          employment to Frankina.                    As we stated in Goldman, however:                                    _______                    Under Massachusetts law,  a lifetime  employ-                    ment contract cannot be found absent evidence                    that it was made or ratified by an officer or                    agent  with actual  or apparent  authority to                    bind the  employer  to a  lifetime  contract.                    See Rydman  v. Dennison  Mfg. Co., 373  Mass.                    ___ ______     __________________                    855, 366 N.E.2d 763 (1977); Porshin  v. Snid-                                                _______     _____                    er, 349  Mass. 653, 654, 212  N.E.2d 216, 217                    __                    (1965);  Thalin  v. Friden  Calculating Mach.                             ______     _________________________                    Co., 338  Mass. 67,  70, 153 N.E.2d  658, 660                    ___                    (1958); Simonelli v. Boston Hous.  Auth., 334                            _________    ___________________                    Mass.  438,  440-41, 137  N.E.2d  670, 672-73                    (1956).          Id. at 16-17.   As the present  record contains no evidence  that          ___          the Bank  invested  Ericson with  actual  authority to  extend  a          binding offer  of lifetime  employment to  anyone,  we need  only          determine whether  Frankina  has demonstrated  a genuine  factual          dispute material to the issue of apparent authority.                                          13                    Apparent authority "results from conduct by the princi-                                                             __ ___ _______          pal  which causes  a third  person reasonably  to believe  that a          ___          particular person . . . has  authority to enter into negotiations          or  to make representations as  his agent."   Hudson v. Massachu-                                                        ______    _________          setts Property Ins. Underwriting Ass'n,  386 Mass. 450, 457,  436          ______________________________________          N.E.2d 155, 159 (1982) (quoting W.A. Seavey, Agency   8D at p. 13                                                       ______          (1964))  (emphasis  added);  accord  Goldman,  slip  op.  at  17.                                       ______  _______          Apparent  authority  "'cannot  be  established  by  the  putative          agent's  own  words or  conduct,  but  only by  the  principal.'"                                                 ____ __  ___  _________          Sheinkopf  v. Stone, 927 F.2d 1259, 1269 (1st Cir. 1991) (quoting          _________     _____          Sheldon v. First  Fed. Savings &  Loan Ass'n,  566 F.2d 805,  808          _______    _________________________________          (1st Cir. 1977)) (emphasis added).  Thus, as in Goldman, slip op.                                                          _______          at 17, we must examine the record for evidence of  conduct on the          part  of  the Bank  that could  have  led Frankina  reasonably to          believe that Ericson was  authorized to extend an offer  of life-          time employment.                      "A person appointed to a position with generally recog-          nized functions  may be  found to  possess apparent  authority to          perform  the duties  ordinarily entrusted  to one  occupying that          position."   Id. (citing Restatement (Second) of Agency   27 cmt.                       ___         ______________________________          a  (1958)).   As  a personnel  officer,  Ericson undoubtedly  had          actual  or  apparent authority  to  hire Bank  employees.   Under          Massachusetts law, however, ordinary  authority to hire is insuf-          ficient to  bind an employer  to a lifetime  employment contract.          Id.  at 18-19 (citing  cases).  Thus, holding  Ericson out as its          ___          agent  for general  hiring  purposes did  not constitute  conduct                                          14          warranting  an objectively  reasonable  belief  that Ericson  was          authorized to offer lifetime  employment with the Bank.   See id.                                                                    ___ ___          at 19.                     Under rare circumstances, apparent authority to enter a          lifetime employment contract may be  found where it is  customary          for  a particular  officer or  agent to make  lifetime contracts.          Id.    The Bank  submitted  competent  affidavits attesting  that          ___          Ericson had  no actual authority to  bind the Bank to  a lifetime          contract  and that no employee  has a lifetime  contract with the                             __ ________          Bank.   Nonetheless,  Frankina  contends that  an inference  that          lifetime contracts were  commonplace at the Bank  arises from the          "widely discussed fact" that, prior to 1989, no employee had ever          been terminated other  than for criminal  conduct.  Under  Massa-          chusetts law,  however,  "[l]ifetime contracts  are  [considered]          extraordinary  in their  nature and  strong proof is  required to          establish their due formation."   Gregory v. Raytheon  Serv. Co.,                                            _______    ___________________          27 Mass.  App. Ct. 1170,  1171, 540 N.E.2d  694, 695  (1989); see                                                                        ___          Goldman, slip op. at 20.  "Although widespread knowledge that the          _______          Bank had never laid  off an employee except for  criminal conduct          might prompt  the legitimate belief  that employment at  the Bank          was relatively  secure, it cannot be  considered competent proof,          let alone 'strong proof,'  that any Bank employee had  a lifetime          employment contract."   Id. (internal citation  omitted).  Absent                                  ___          evidence  that any  employee     at any  level under  any circum-          stances     had a  lifetime contract with the  Bank, we must con-                                          15          clude that  a rational factfinder could not  reasonably find that          lifetime employment contracts with the Bank were customary.  Id.                                                                       ___                    Although  Frankina correctly  asserts  that an  agent's          authority to make  binding promises  is a question  of fact,  see                                                                        ___          Eastern Renovating Corp.  v. Forhan,  391 F. Supp.  204, 205  (D.          ________________________     ______          Mass. 1975); Salem  Bldg. Supply  Co. v. J.B.L.  Constr. Co.,  10                       ________________________    ___________________          Mass. App.  Ct. 360, 365, 407  N.E.2d 1302, 1306  (1980), he pre-          sented  no evidence which would permit a factfinder reasonably to          conclude,  consistent with  Massachusetts law,  that Ericson  had          actual  or  apparent authority  to bind  the  Bank to  a lifetime          employment  contract.   Nor  did  Frankina  adduce evidence  that          anyone  else, with actual or apparent authority to bind the Bank,          subsequently  ratified any unauthorized offer of lifetime employ-          ment.  See Goldman, slip  op. at 20-21.  As no  trialworthy issue                 ___ _______          was raised, summary judgment  was proper on the lifetime  employ-          ment claim.5          C.  Breach of Preferential Hiring Contract          C.  Breach of Preferential Hiring Contract              ______________________________________                    Finally,  Frankina contends  that there  is a  disputed          issue of material fact as to whether the  Bank breached a promise          to accord preferential treatment to  any reemployment application          he might  file.  Although  the Bank  denies any such  promise, we          assume for present purposes, as did the district court, that such          a  promise was  made.   The district  court  ruled that  any such                                        ____________________               5Accordingly, we  need not  address the claim  that Frankina          changed  his position  in reliance  on  a reasonable  belief that          Ericson had authority to offer lifetime employment.                                          16          promise would have lacked the consideration required to support a          contract  under Massachusetts  law.   Frankina  contends that  he          relied to his  detriment on  the Bank's promise.   He  represents          that, during the  first six  months after he  was discharged,  he          concentrated his  job-search  efforts on  obtaining  reemployment          with the Bank.                     Under Massachusetts law, a  contract may be based  on a          promise  supported by reliance.   Loranger Constr.  Corp. v. E.F.                                            _______________________    ____          Hauserman  Co., 376 Mass. 757, 760-61, 384 N.E.2d 176, 179 (1978)          ______________          ("When a promise is enforceable in whole or in part  by virtue of          reliance, it is a 'contract', and it is enforceable pursuant to a          'traditional contract  theory' antedating the  modern doctrine of          consideration").   However, "'the promisee must  actually rely on          the promise,' and  'the reliance  must have been  induced by  the          promise.'"  Cambridgeport Sav.  Bank v. Boersner, 413 Mass.  432,                      ________________________    ________          442  n.13, 597 N.E.2d 1017, 1023 n.13 (1992) (quoting E.A. Farns-          worth,  Contracts   2.19 at 95-96 (1982)).  Frankina presented no                  _________          competent evidence that he relied on the alleged promise.                    Although Frankina's affidavit  represents that he  con-          centrated his  job-search efforts, for  the first six  months, on          obtaining reemployment with the Bank, this ambiguous statement is          contradicted  by  his  deposition  testimony.6    On  deposition,                                        ____________________               6The affidavit  allows that  Frankina  "made other  attempts          outside the Bank during that time, [but that his] focus for those          first six months was on  getting back into the Bank."   We cannot          credit, as competent evidence of detrimental reliance, Frankina's          vague and  conclusory statement  that he "concentrated"  and "fo-          cused" his  efforts on obtaining reemployment.   See Medina-Munoz                                                           ___ ____________          v. R.J.  Reynolds Tobacco  Co., 896  F.2d 5,  8  (1st Cir.  1990)             ___________________________                                          17          Frankina  testified that  he diligently  pursued employment  both          inside  and outside the Bank "from the day [he] was let go to the          present," that  he  was not  at any  time less  than diligent  in          looking  for work either inside or outside the Bank, that between          May 1989  and May 1990 he applied to over 200 employers, and that          he  applied for  jobs  all over  the  United States  and  Canada.          Viewed  in  the context  of the  immediate and  comprehensive job          search he  described at  deposition, the vague  representation in          Frankina's  affidavit     that  during the  first  six months  he          "focused" and "concentrated" on getting reemployed by the Bank             was insufficient to generate a trialworthy issue on the detrimen-          tal reliance  claim.  See  Medina-Munoz v. R.J.  Reynolds Tobacco                                ___  ____________    ______________________          Co., 896  F.2d 5, 8 (1st  Cir. 1990); see also  Babrocky v. Jewel          ___                                   ___ ____  ________    _____          Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985) (material issue of          ________          fact cannot be demonstrated by submitting affidavit contradicting          sworn deposition  testimony); Foster v. Arcata  Assoc., Inc., 772                                        ______    ____________________          F.2d  1453, 1462  (9th Cir.  1985), cert.  denied, 475  U.S. 1048                                              _____  ______          (1986) (same);  S. G. Supply Co. v. Greenwood Int'l, Inc., 769 F.                          ________________    _____________________          Supp. 1430 (N.D. Ill. 1991) (same); Lowery v. Airco, Inc., 725 F.                                              ______    ___________          Supp. 82,  85-86 (D.  Mass. 1989)  (same).   Accordingly, summary          judgment  on the claim for  breach of a  preferential hiring con-          tract was proper.                    Affirmed; no costs to either party.                    Affirmed; no costs to either party.                    __________________________________                                        ____________________          (summary judgment  not  forestalled by  "conclusory  allegations,          improbable inferences, and unsupported speculation").                                            18
