USCA1 Opinion

September 6, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________

No. 96-1186

ROBERT F. KELLEHER,

Plaintiff, Appellant,

v.

LORAL INFRARED AND IMAGING SYSTEMS, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Robert F. Kelleher on brief pro se.

__________________
Alan B. Pearl,
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Pearl & MacKenzie, P.C.,

__________________________

Laurence I. Cohen on brief for appellee.

_________________

Leonard Paris
______________

____________________

____________________

Per Curiam.
___________

Plaintiff-appellant

alleged

age

discrimination

in

the

employment as a quality

wide

reduction in

termination

of

his

eighteen-year

assurance engineer during a company-

force

which occurred

shortly after

former employer was acquired by another corporation.

employer,

LIRIS,

consolidation

cutting

process.

responded

of employee

move, and that it

that

the

positions was

had treated age

his

The new

elimination

a necessary

and

cost-

neutrally in the

After lengthy discovery, the district court granted

summary judgment to LIRIS because plaintiff's proof failed to

create a genuine issue of fact as to LIRIS's motivation.

Reviewing the

judgment de novo, and

__ ____

after a close

examination of the record and briefs, we find no

substantial

reason

conclusion.

to disagree

with

Accordingly, we summarily

the

district court's

affirm the

judgment, adding

only

the

following comments

in

response to

two of

appellant's

arguments on appeal.

(1)

appellant's

overlooked

identify the

We have

deposition

reviewed with care the excerpts

testimony

by the district court.

which

he

The

claims

anyone

anonymous declarant(s) who reported

over

Appellant named

40 years

of

age

and

were

testimony does not

___

that LIRIS

was prejudiced against older workers and "taking a hard

at

from

earning over

employees who "discussed,"

look

40K."

"referenced," or

"mentioned" the anonymous statements, not those who initially

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uttered them.

Appellant's reliance on Conway v. Electro

______
_______

Switch Corp., 825 F.2d 593

_____________

Haemonetics Corp., 51
__________________

misplaced.

In Conway, we
______

not abuse its

admitting

F.3d

into

(1st Cir. 1987),

1087 (1st

held that the

discretion in a gender

evidence

Cir.

testimony

and Woodman v.
_______

1995) is

thus

district court did

discrimination case by

reflecting

two

prior

instances of gender bias in the treatment of women employees.

The witnesses testified that in each instance a named company

manager

explained a

decision to

deny a

pay increase

woman employee on the basis of the woman's gender.

The named

declarants had authority

to make the statements, and

them

of the

was the

president

company

at the

one of

time

that

plaintiff's employment

was terminated.

Fed. R. Evid. 401, the

statements were not wholly irrelevant

to

the issues

evidence

at hand

because they

"corporate state-of-mind"

We held

to a

that under

might circumstantially

or

a "discriminatory

atmosphere."

In Woodman,
_______

admissible

named

an age

discrimination

supervisor's

statement

case, we

purporting

communicate management's desire for a younger workforce.

held

to

The

supervisor

was

in

intentions; she was

challenged

admissible

to

know

of

management's

"directly involved" in implementing

reduction

under

position

Fed.

in

R.

force;

Evid.

-3-

and

the

statement

801(d)(2)(D)

because

the

was

it

concerned

matters

within

the

scope

of

her

employment.

Woodman, 51 F.3d at 1093-94.

_______

In

contrast, appellant's

statements

reporting a

during the

layoff period,

employees.

had

discriminatory animus

were "abound"

and "bantered about"

by numerous

management's sentiments nor that they

responsibility

LIRIS's policy.

as a "supervisor"

especially

that anonymous

There was no evidence that the banterers were in

position to know of

any

proof is

The

for

communicating

or implementing

identification of one of the

does not alone

banterers

provide the missing

link,

since this supervisor was himself a victim of the

new management's layoff.

Proof of "bantering" by

employees fearful of a new

employer's motives for a layoff does not suffice to establish

genuine issue of fact as to the employer's actual mindset.

Cf.
___

Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th

________
___________________

Cir. 1996) (holding that "rumors, conclusory allegations

subjective

beliefs

evidence

to

establish a claim of discrimination as a matter of law").

As

the district

satisfy the

[are]

wholly insufficient

and

court observed, too, appellant's

foundation requirements for

proof did not

admissibility under

Fed. R. Evid. 801(d)(2)(C)(D).

(2)

establish

that

Appellant's evidence also was

a genuine issue of

fact in support

insufficient to

of his theory

he was "replaced" in his position by a younger employee

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and/or that

position.

to

LIRIS retained

Viewing

appellant, it

that

with,

the evidence in the light

could not

any employee

or

performed.

younger employees in

identical

support a

assumed a

to,

See LeBlanc v.
___ _______

duties

most favorable

reasonable inference

position that

the

the "same"

which

was coextensive

appellant

had

Great American Ins. Co., 6 F.3d

________________________

836, 846

(1st Cir. 1993) (an employee is not "replaced" when

another is

assigned

to perform

other duties, or when

existing

denied,
______

his duties

in addition

the work is redistributed among

employees already

114 S.Ct. 1398

performing related

(1994); cf. Hebert

___ ______

to

other

work), cert.
_____

v. Mohawk Rubber
_____________

Co., 872 F.2d 1104, 1114

___

(1st Cir. 1989) (finding sufficient

proof to survive summary

judgment where the younger retained

person "exactly" conducted the

work of riffed employee, with

only minor modifications).

Appellant's motion for reconsideration of the order

submitting this

denied.
______

case for

decision without oral

The judgment is affirmed.

________

argument is

See Loc. R. 27.1.

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