USCA1 Opinion
October 20, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1681
JOHN PAGLIARINI,
Plaintiff, Appellant,
v.
GENERAL INSTRUMENT CORP.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge, and
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Boudin, Circuit Judge.
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Frank J. McGee, Joseph P. Hegarty, Jr. and Joseph D. McDonald,
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Jr. on brief for appellant.
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Wm. Shaw McDermott, Irene C. Freidel and Kirkpatrick & Lockhart
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on brief for appellee.
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Per Curiam. Plaintiff appeals a summary judgment
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dismissing his complaint. He alleges that defendant company
wrongfully terminated his employment because of his age (55
years old) in violation of the Age Discrimination in
Employment Act, 29 U.S.C. 621 et. seq., and parallel state
law. The district court held that plaintiff failed to offer
minimally sufficient proof to establish a prima facie case,
and to rebut defendant's articulated non-discriminatory
reason for the employment termination.
The undisputed facts showed that plaintiff, an
expert in acoustical engineering, was hired as a section
manager in the engineering department of defendant's Undersea
Systems Division in 1986. His employment was terminated
approximately 4-1/2 years later after business setbacks led
to an overall reduction in the department's work force.1
Defendant alleged that the decision to terminate plaintiff's
employment was due to the company's immediate financial
situation, in that plaintiff's expertise in acoustical theory
was not as valuable to its scaled-back business objectives as
were the mechanical skills of the employees who were
retained.
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1. There had been an earlier round of layoffs in the
Division, which did not affect the engineering department.
In this round, eleven engineering employees were laid off:
six were older than the age of forty, and five were younger.
The Division was later sold to another company.
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On appeal, plaintiff assigns four errors. First,
he challenges the district court's finding that he failed to
adduce sufficient proof that during the workforce reduction
"defendant did not treat age neutrally, or that younger
employees were retained in the same position." Slip op. at
4-6 & n.5 (May 31, 1994) (citing LeBlanc v. Great Am. Ins.
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Co., 6 F.3d 836, 842 (1st Cir. 1993), cert. denied, 114 S.
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Ct. 1398 (1994), and Hebert v. Mohawk Rubber Co., 872 F.2d
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1104, 1111 (1st Cir. 1989)). Plaintiff now concedes that
this is a correct articulation of a necessary element of his
claim. He argues, however, that the court actually applied a
different standard in the following passage,
The only "fact" [plaintiff] presents in
satisfaction of the fourth element of his prima
facie case is that [co-employee] DeLara assumed the
title of "Acting Manager" of the Department after
he was terminated. DeLara however . . . is also a
member of ADEA's protected class and only two years
younger than [plaintiff].
The passage clearly consists of a straightforward
evaluation of the paucity of plaintiff's proof. There is no
support for plaintiff's attempt to twist it into a
misapplication of the law. We also see no basis for
plaintiff's related argument that the company's retention of
a third employee, who was younger than the other two,
"arguably" satisfied plaintiff's prima facie case because all
three employees were "theoretically doing the same work."
Whatever the relevance of this point, it was not specifically
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urged below, and there is no fault in the court's assessment
in light of the proof and arguments presented.
We also find no merit in plaintiff's remaining
assignments of error. First, the district court did not err
in rejecting plaintiff's argument that "by seeking to save
the equivalent of Plaintiff's high salary, the Defendant . .
. did not treat age neutrally." There were no facts
suggesting that defendant used plaintiff's salary as a proxy
for age discrimination. Indeed, the brevity of plaintiff's
employment with defendant, and the substantial disparity
between his salary and that of DeLara, who was only two years
younger, belie the correlation which plaintiff urges. See
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Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1707 (1993).
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Second, the district court did not misconstrue the
applicability of Hazen, and we apprehend no prejudice to
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plaintiff in the court's style of editing quotations from the
Hazen opinion. Finally, the court did not abuse its
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discretion in refusing to consider any new facts in
plaintiff's out-of-time "supplemental memorandum," and in any
event, plaintiff points to no prejudice from the court's
ruling.
Reviewing the district court's order de novo, and
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finding no substantial question for review, the judgment
below is summarily affirmed. See Loc. R. 27.1.
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