
USCA1 Opinion

	




          January 23, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1817                                    JACK SCHWARTZ,                                Plaintiff, Appellant,                                          v.                                THE MITRE CORPORATION,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                                 Cyr, Circuit Judge,                                      _____________                         and Skinner,* Senior District Judge.                                       _____________________                                                                                      ____________________             Paul H. Merry, with whom Garrity, Levin & Muir was on brief for             _____________            _____________________        appellant.             David J. Kerman, with whom Jackson, Lewis, Schnitzler & Krupman             _______________            ____________________________________        was on brief for appellee.                                                                                      ____________________                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.                    Per  Curiam.   Plaintiff-appellant Jack  Schwartz chal-                    ___________          lenges the summary judgment  order dismissing his age discrimina-          tion  claims under  federal  and state  law1  against his  former          employer, MITRE Corporation ("MITRE").  Following  oral argument,          full briefing, and careful plenary  review of the entire  record,          we  affirm the  district  court judgment,  substantially for  the          reasons explained in Woods  v. Friction Materials, Inc.,  30 F.3d                               _____     ________________________          255 (1st Cir. 1994).                    Schwartz commenced  employment with  MITRE in  1983, at          age  fifty-two, as a member of its  technical staff.  In the fall          of 1990, his job performance rating placed  him in the bottom ten          percent of  all technical staff  employees in  his division  with          comparable experience.    A  few months  later,  MITRE  laid  off          __________ __________          Schwartz  and  118  other  employees  in  a reduction  in  force.          Approximately  one  year  later,  Schwartz  instituted  this  age          discrimination action.                     The parties  acknowledge that the only  issue on appeal          is  whether Schwartz  proffered evidence  sufficient to  enable a          reasonable trier of fact  to find that MITRE's stated  reason for          discharging him was a pretext for age discrimination.  See id. at                                _______ ___ ___ ______________   ___ ___          262.     There   can   be  no   question   that  MITRE   gave   a          nondiscriminatory reason  for firing  Schwartz, viz.,  failure to          perform as well as other division employees  with similar experi-                                        ____________________               1See 29 U.S.C.   623 (1988 & Supp. V); Mass. Gen. Laws Ann.                ___          ch. 151B (West 1996); Charland v. Muzi Motors, Inc., 631 N.E.2d                                ________    _________________          555, 557-58 (Mass. 1994)(ruling that chapter 151B provides the          exclusive statutory remedy for age discrimination).                                            2          ence.  Schwartz responded, inappositely, with affidavits general-          ly attesting to his  abilities as an engineer and  physicist; the          affidavits did not,  however, raise  a material issue  as to  the          comparability of  Schwartz'  job performance  vis- -vis  that  of          other  division  employees      the articulated  reason  for  the          termination.   Id.  Nor did the statistical evidence submitted by                         ___          Schwartz establish  a trialworthy issue in  this disparate treat-          ment case,  since it did  not purport  to show that  he was  dis-          charged by  MITRE based  on a  discriminatory animus,  as distin-          guished  from inferior job performance.  See LeBlanc v. Great Am.                                                   ___ _______    _________          Ins. Co., 6 F.3d 836, 848 (1st  Cir. 1993) (noting limited proba-          ________          tive value of statistical  evidence in disparate treatment case),          cert. denied, 114 S. Ct. 1398 (1994).        Finally,    Schwartz          _____ ______          attested to an occasion in  late 1989, when one George Randig,  a          MITRE department  head, allegedly informed a  group of employees,          that MITRE management intended to rate senior employees according          to  a new, more  exacting performance standard.   Although Randig          was  not involved  in any way  in the decision  to terminate him,          Schwartz  contends  that this  statement  evinces  that age  bias          infected MITRE's entire job  performance evaluation system in the          year  prior to  the reduction  in force  which cost him  his job.          Based on a  careful review  of the  affidavit in  the light  most          favorable to Schwartz, id. at 841, we conclude that it too failed                                 ___          to raise a genuine issue of material fact on the question of pre-          text.          First, as the district court held,  the inferences          Schwartz would have  the court draw are highly  speculative; just                                          3          how  speculative cannot  readily be  determined due  to Schwartz'          failure to proffer the Randig language upon which he would have a          factfinder  draw the inferences for  which he contends.   And, in          all  events, MITRE considered  Schwartz' job performance inferior          to  other  division  employees  of similar  experience  and  age.                                                                  ___  ___          Consequently,  even  assuming the  affidavit  were sufficient  to          support a  reasonable inference that MITRE  rated older employees          more severely  than younger employees     to facilitate inclusion          of older employees  in any  reduction in force     the  affidavit          nevertheless is inapposite to the articulated basis for Schwartz'          termination.  In sum,  there is no competent evidence  of pretext          which would support the present age discrimination claim.                    Affirmed.                    ________                                                                                       4
