USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1727
FRANK B. WOODMAN,
Plaintiff, Appellant,
v.
HAEMONETICS CORPORATION,
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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Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Stuart DeBard for appellant.
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Jeffrey M. Hahn, with whom Foley, Hoag & Eliot was on brief for
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appellee.
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April 14, 1995
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CYR, Circuit Judge. Plaintiff Frank B. Woodman appeals
CYR, Circuit Judge.
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from a district court order granting summary judgment for
Haemonetics Corporation ("HC"), Woodman's former employer, and
dismissing his claim for wrongful discharge under the Age Dis-
crimination in Employment Act ("ADEA"). We vacate the district
court judgment and remand for factfinding.
I
I
BACKGROUND1
BACKGROUND
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Woodman was hired by HC in January 1981 at age forty-
eight. For ten years he worked as a machinist, primarily in HC's
machine shop at Holbrook, Massachusetts. Throughout his employ-
ment as a machinist he consistently earned favorable performance
reviews. He was promoted twice, receiving commensurate wage
increases from $5.28 per hour as a Machinist Trainee, to $11.75
per hour as a Machinist B.
In December 1990, at age fifty-seven, Woodman was
transferred to the "bowl department" in Braintree, Massachusetts,
where HC manufactures disposable components for medical equipment
designed to facilitate the collection, separation and cleansing
of blood and blood constituents. The medical equipment manufac-
tured in the bowl department is fabricated under sterile condi-
tions in a controlled-access area known as the "clean room."
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1The essential facts are recited in the light most favorable
to appellant Woodman, the party resisting summary judgment.
Velez-Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874 (1st Cir.
___________ ______________________
1993).
2
On January 24, 1991, Woodman received a flawless
performance report from his bowl department supervisor, Mary
LeBlanc. Not only did he earn the highest possible rating in all
six review categories, but LeBlanc commented: "[Y]our work since
joining bowls has been exceptional. You have made a positive
contribution in work and in adapting to change."
Thereafter, in late March 1991, Mary LeBlanc was
succeeded by Rick Lucas as Woodman's supervisor in the bowl
department. Lucas began training Woodman in two non-assembly
line tasks "material handling" (i.e., retrieving raw materials
for use in the clean room) and "bowl packing" (i.e., packaging
the finished product). The record discloses but one performance
review of Woodman by Lucas, in late July 1991. Though less
favorable than the LeBlanc report, the Lucas report indicated
that Woodman was performing at an acceptable level. Woodman was
rated "exceptional" in terms of dependability and "above average"
in terms of both customer/supplier relations and quality of work.
In no category did Woodman receive a rating lower than "average."
Lucas added, "Frank is a highly organized, consistent performer."
John Barr became Vice President of Operations for HC in
mid-September 1991. Shortly thereafter, Barr directed all HC
managers to reevaluate their employees, with particular emphasis
on flexibility (i.e., susceptibility to cross-training and to
multiple production-line responsibilities), reliability, partici-
pation (i.e., the capacity to provide suggestions and contribute
to improved operational efficiencies) and quality and quantity of
3
work product. The record on appeal does not reflect a perfor-
mance rating on Woodman under Vice President Barr's revised
performance review procedure in the fall of 1991. The record is
clear, however, that many HC employees did receive performance
ratings considered unacceptable by Barr. The record evidence
also discloses that Barr determined that HC could terminate its
"C performers" without jeopardizing its production, while dramat-
ically reducing labor costs.
Sometime in the fall of 1991, Mary LeBlanc resumed her
supervisory role over Woodman in the bowl department. Around
this same time, LeBlanc was privy to at least one discussion,
among members of HC's upper management, in which future employee
terminations were discussed. Following such a meeting, and in
the presence of Woodman, LeBlanc referenced the management
discussion relating to future terminations: "These damn people
they want younger people here. They will be the one[s] that
will be successful here." Woodman's affidavit attests that
LeBlanc made similar statements on several occasions.
During the time that HC's management was deciding which
employees were to be terminated, Mary LeBlanc submitted a memo-
randum, dated November 15, 1991, describing Woodman's work
performance as having been unsatisfactory throughout the period
"since July 1991." The November 15 memorandum made no reference
to the performance review by Lucas in late July 1991. LeBlanc
described Woodman as an "unmotivated worker" who "would prefer to
sit in the Bowl Prep area and read for extended periods of time
4
up to several hours." She noted further that Woodman was slow,
routinely requiring a minimum of thirty minutes to dress for the
sterile conditions in the clean room, whereas the requisite
procedures should take no longer than ten minutes. LeBlanc
reported that Woodman possessed limited skills: "Frank cannot
perform 50% of line operations to standard requirement. He can
only be assigned 2 off line jobs in the clean room, where his
performance will not affect production quantities." Furthermore,
she stated, despite Woodman's training on most assembly-line
operations, his inability to perform those operations in a
satisfactory manner had led to the abandonment of further train-
ing efforts. LeBlanc concluded: "I recommend Frank be relieved
from his current duties."
Five days later, in a reduction in force ("RIF"),
thirty-three HC employees were terminated; twelve, including
Woodman, were bowl department employees. HC presented statisti-
cal evidence demonstrating that the ratio of older to younger
employees in the bowl department increased slightly during the
reduction in force; viz., 41% over age 40 before the RIF; 44%
___
after the RIF.2
Woodman received written notice of his immediate
termination on November 20, which advised that HC had decided
that it could "eliminate a group of its poorest performers and
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2However, since the company-wide data neither support nor
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undermine the contention that the RIF had no discriminatory
impact, additional information would be needed to draw any
pertinent conclusion from these data.
5
still meet the production plan." Later, HC reported to the
Massachusetts Department of Employment Training that Woodman was
discharged as part of a reduction in force involving the company-
's "poorest performers." On March 2, 1993, Woodman initiated the
present suit in federal district court, alleging age discrimina-
tion in violation of the ADEA.
In due course, the statement attributed to Mary LeBlanc
by the Woodman affidavit submitted in opposition to HC's motion
for summary judgment was excluded by the district court as
inadmissible "totem-pole" (i.e., multiple) hearsay, "unavailing
____
on a motion for summary judgment." The court went on to conclude
that though Woodman had made out a prima facie case of age dis-
crimination, HC had rebutted the resulting presumption of unlaw-
ful age discrimination by producing enough evidence, if credited,
to enable a rational trier of fact to find a nondiscriminatory
basis for Woodman's dismissal; viz., poor work performance.
___
Ultimately, the district court awarded summary judgment to HC on
the ground that Woodman had not proffered competent evidence
sufficient to generate a trialworthy issue as to whether imper-
missible age-based discrimination constituted a determinative
factor in the dismissal. Woodman appealed.
II
II
STANDARD OF REVIEW
STANDARD OF REVIEW
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We examine a grant of summary judgment de novo, viewing
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the evidence, and all reasonable inferences therefrom, in the
light most favorable to the party resisting summary judgment.
6
O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.), cert. denied,
________ _______ ____ ______
114 S. Ct. 634 (1993). Summary judgment is inappropriate unless
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); Henley Drilling Co. v. McGee, 36 F.3d 143,
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144 (1st Cir. 1994). No credibility assessment may be resolved
in favor of the party seeking summary judgment. Velez-Gomez v.
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SMA Life Assurance Co., 8 F.3d 873, 877 (1st Cir. 1993).
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III
III
DISCUSSION
DISCUSSION
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A. The Burden-Shifting Paradigm
A. The Burden-Shifting Paradigm
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The burden-shifting framework announced in McDonnell
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Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) ["McDonnell
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Douglas"], and imported for use in ADEA cases, see Keisling v.
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SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994);
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LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993),
_______ ___________________
cert. denied, 114 S. Ct. 1398 (1994), allocates burdens of
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production and orders the presentation of evidence so as "pro-
gressively to sharpen the inquiry into the elusive factual
question of intentional discrimination." Texas Dept. of Communi-
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ty Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981); see St.
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Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2746 (1993).
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At the first stage in the McDonnell Douglas matrix,
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Woodman was required to make a prima facie showing that he (1)
7
was at least forty years old, (2) met HC's legitimate job perfor-
mance expectations, (3) experienced adverse employment action,
and (4) since the challenged action was part of a reduction in
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force, that HC did not treat age neutrally or it retained younger
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persons in the same position. Goldman v. First Nat'l Bank of
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Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); LeBlanc, 6 F.3d at
______ _______
842. The required prima facie showing is not especially burden-
some, see Greenberg v. Union Camp Corp., No. 94-1312, slip op. at
___ _________ ________________
4 (1st Cir. Feb. 17, 1995); Smith v. Stratus Computer, Inc., 40
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F.3d 11, 15 n.4 (1st Cir. 1994), and once established, gives rise
to a rebuttable presumption that the employer engaged in inten-
tional age-based discrimination. Goldman, 985 F.2d at 1117
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(citing Burdine, 450 U.S. at 254). As Justice Scalia stated in
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Hicks, the rebuttable presumption ultimately results in "a
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required conclusion [viz., unlawful discrimination] in the
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absence of explanation." Hicks, 113 S. Ct. at 2747 (emphasis
_______ __ ___________ _____
added).
At the second stage in the burden-shifting praxis, the
defendant-employer must produce sufficient competent evidence,
"taken as true," to permit a rational factfinder to conclude that
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there was a "nondiscriminatory reason," id. at 2748 (emphasis in
___
original), for the challenged employment action, thereby displac-
ing the legal presumption of intentional discrimination generated
by the plaintiff-employee's prima facie case. Goldman, 985 F.2d
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at 1117. Since neither credibility issues nor other factual
matters in genuine dispute are to be resolved under it, "the
8
McDonnell Douglas framework . . . is no longer relevant" once the
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defendant-employer has met its burden of production at the second
stage. Hicks, 113 S. Ct. at 2749. The attendant legal presump-
_____
tion of intentional discrimination having served its purpose
that of "forcing the defendant to come forward with some re-
sponse" it "drops out of the picture." Id.
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At that point, the defendant-employer's motion for
summary judgment cannot succeed if the plaintiff-employee, with
whom the ultimate burden of persuasion remains throughout, Vega
__________ ____
v. Kodak Caribbean, Ltd., 3 F.3d 476, 478 (1st Cir. 1993), has
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proffered sufficient admissible evidence, if believed, to prove
by a preponderance of the evidence each essential element in a
prima facie case and that the employer's justification for the
_____ _____
challenged employment action was merely a pretext for impermissi-
ble age discrimination. Id. at 479. The plaintiff-employee may
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rely upon the same evidence to establish both pretext and dis-
crimination, provided it is adequate to enable a rational fact-
finder reasonably to infer that intentional age-based discrimina-
tion was a determinative factor in the adverse employment action.
Goldman, 985 F.2d at 1117-18.
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Where the elements of a sufficient prima facie case
combine with the factfinder's belief that the ostensible basis
for dismissing the employee was pretextual, "particularly if . .
. accompanied by a suspicion of mendacity," the factfinder is
permitted to infer the intentional age-based discrimination
_________
required to enable the plaintiff-employee to prevail on the
9
merits. Hicks, 113 S. Ct. at 2749 ("The factfinder's disbelief
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of the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to
show intentional discrimination.") (emphasis added); Woods v.
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Friction Materials, Inc., 30 F.3d 255, 260 n.3 (1st Cir. 1994).
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We conclude that Woodman made out just such a case in the dis-
trict court, thereby precluding summary judgment for HC.
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B. Woodman's Prima Facie Case
B. Woodman's Prima Facie Case
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The district court correctly concluded that Woodman had
established a prima facie case of impermissible age-based dis-
crimination in employment. At age fifty-seven, Woodman was
discharged as part of a reduction in force, while younger persons
were retained in the bowl department. See Goldman, 985 F.2d at
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1117. As the district court noted, the only substantial question
was whether Woodman had met the employer's legitimate job-perfor-
mance expectations. Woodman cleared this hurdle with his proffer
of substantial wage increases and ten years of positive perfor-
mance reviews, blemished by but one negative performance evalua-
tion five days prior to the reduction in force. See, e.g.,
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Woods, 30 F.3d at 261 (history of largely favorable performance
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reviews and extensive experience in industry adequate to generate
at least a genuine issue as to plaintiff-employee's ability to
meet legitimate job expectations); Keisling, 19 F.3d at 760
________
(similar). It then became incumbent upon HC to rebut the result-
10
ing legal presumption that the determining factor in its decision
to discharge Woodman was impermissible age-based discrimination.
11
C. HC's Rebuttal
C. HC's Rebuttal
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At the second stage in the McDonnell Douglas analysis,
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the district court concluded again correctly that HC had
rebutted the legal presumption of intentional age discrimination
with evidence relating to Woodman's work performance since
joining the bowl department. See Hicks, 113 S. Ct. at 2748 ("By
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producing evidence (whether ultimately persuasive or not) of non-
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discriminatory reasons, [defendants] sustained their burden of
production . . . ."). Crediting the competent evidence adduced
by HC, see id., Woodman's performance in the machine shop may
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have been very good, but he never mastered the tasks required in
the bowl department. Thus, the presumption of unlawful age
discrimination vanished from the case. Id. at 2749; Vega, 3 F.3d
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at 479.
In order to avoid summary judgment at that point it was
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essential that Woodman proffer sufficient competent evidence to
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generate a trialworthy issue on the ultimate question whether
intentional age-based discrimination was a determinative factor
in his dismissal. Id.
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First, Woodman attacked the final performance evalua-
tion by Mary LeBlanc on November 15, 1991 five days before the
reduction in force by contrasting the laudatory performance
review of January 24, 1991, with the final review less than
nine months later in which LeBlanc's assessment plummeted from
high praise to a recommendation that Woodman be relieved of his
current duties. The Woodman affidavit itself attested to facts
12
directly contradicting several key assertions made by LeBlanc in
her final work performance evaluation. He also tendered state-
ments from a former supervisor in the machine shop and a former
group leader in the bowl department, attesting to the high
quality of his work. Second, and most importantly, the Woodman
affidavit asserted that Mary LeBlanc had stated in his presence,
following a meeting with upper management shortly before HC
implemented its reduction in force: "These damn people they
want younger people here. They will be the one[s] that will be
successful here."
Under the summary judgment analysis required once the
McDonnell Douglas framework dropped out of the picture, see
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Hicks, 113 S. Ct. at 2749, the district court was required to
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consider whether Woodman presented sufficient competent, i.e.,
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admissible, evidence, see Murphy v. Timberlane Regional Sch.
___ ______ _________________________
Dist., 22 F.3d 1186, 1196 (1st Cir.) (citing Anderson v. Liberty
_____ ________ _______
Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied, 115 S. Ct.
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484 (1994), to warrant a trial on the ultimate question whether
unlawful age-based discrimination was a determinative factor in
his dismissal by HC. It was at this juncture that the district
court excluded the linchpin in Woodman's opposition to summary
judgment the vicarious admission that Woodman attributed to
LeBlanc as inadmissible "totem-pole" hearsay.
D. Woodman's Demonstration of Pretext
D. Woodman's Demonstration of Pretext
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The twofold thrust implicit in the evidentiary prof-
fers made by Woodman was that the November 15, 1991, LeBlanc
13
memorandum severely denigrating his work performance was a
pretext for unlawful age-based discrimination on the part of HC,
as indicated not only by Woodman's own work-performance evidence
but by the vicarious HC admission, through LeBlanc, that new
management disfavored older employees.
The factfinding inquiry into pretext focuses on "wheth-
er the employer believed its stated reason to be credible."
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Goldman, 985 F.2d at 1118 (quoting Mesnick, 950 F.2d at 824)
_______ _______
(emphasis added). Thus, Woodman's evidence, including the
vicarious admission made through LeBlanc if credited by the
factfinder would be adequate not only to permit a reasonable
______
inference that HC's articulated justification for Woodman's
dismissal was a mere pretext for intentional age discrimination,
but also to generate a grave "suspicion of mendacity" respecting
the highly unfavorable performance rating made in the LeBlanc
memorandum five days prior to Woodman's dismissal. See Hicks,
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113 S. Ct. at 2749.3 Consequently, the putative vicarious
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3The statistical evidence presented by HC, in an effort to
show that older workers as a whole were not more severely affect-
___
ed by the reduction in force, is clearly relevant and might
strengthen the employer's defense. See Healy v. New York Life
___ _____ _____________
Ins. Co., 860 F.2d 1209, 1217 (3d Cir. 1988), cert. denied, 490
________ ____ ______
U.S. 1098 (1989) (disparate treatment claim); see also Connecti-
___ ____ _________
cut v. Teal, 457 U.S. 440, 454 (1982) ("[A] nondiscriminatory
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'bottom line' and an employer's good-faith efforts to achieve a
nondiscriminatory work force, might in some cases assist an
employer in rebutting the inference that particular action had
been intentionally discriminatory."). But by itself, rarely will
an employer's statistical evidence relating to company-wide
workforce composition provide a conclusive defense against a
disparate treatment discrimination claim at summary judgment
where the employee has established a prima facie case and pretext
accompanied by a suspicion of mendacity. See Healy, 860 F.2d at
___ _____
1218 (expressing skepticism concerning conclusiveness of employe-
14
admission by HC, through LeBlanc, is crucial to our de novo
__ ____
determination whether HC was entitled to summary judgment as a
matter of law. See Goldman, 985 F.2d at 1116.
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(i) The Vicarious Admission
(i) The Vicarious Admission
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On appeal, HC argues that the excluded statement does
not come within Evidence Rule 801(d)(2)(D) because LeBlanc was
only a "first-line" supervisor, with no authority to make termi-
nation decisions.4 However that may be, Rule 801(d)(2)(D) does
not contemplate as HC seems to suppose that the statement
be shown to have been made by the employee at the instance of her
employer, compare Fed. R. Evid. 801(d)(2)(C) with Fed. R. Evid.
_______ ____
801(d)(2)(D), but only that the declarant's statement concern
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matters within the scope of her agency or employment. Fed. R.
Evid. 801(d)(2)(D). See, e.g., Union Mut. Life Ins. Co. v.
___ ____ ___________________________
____________________
r's uncontested data showing no change in workforce composition,
both department-wide and company-wide, after reduction in force);
see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978)
___ ____ ____________________ ______
("A racially balanced work force cannot immunize an employer from
liability for specific acts of discrimination.") (disparate
treatment claim); Teal, 457 U.S. at 455 ("Congress never intended
____
to give an employer license to discriminate against some employ-
ees . . . merely because he favorably treats other members of the
employees' group.") (disparate impact case).
4Rule 801(d)(2)(D) states that
[a] statement is not hearsay if . . . [the]
statement is offered against a party and is
. . . . a statement by the party's agent or
servant concerning a matter within the scope
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of the agency or employment, made during the
existence of the relationship.
Fed. R. Evid. 801(d)(2)(D) (emphasis added).
15
Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986); Hoptowit v. Ray,
______________ ________ ___
682 F.2d 1237, 1262 (9th Cir. 1982).
The record reflects that LeBlanc was acting within the
scope of her employment in (i) attending the HC management
meeting, (ii) assessing the performance of bowl department
employees under her supervision (including Woodman), and (iii) in
___
recommending that Woodman be relieved from his duties. Thus, the
circumstantial evidence proffered in the Woodman affidavit
provided a plainly sufficient foundation, see Fed. R. Evid.
___
103(a)(2), for finding both that LeBlanc was directly involved in
the reduction in force and that the excluded statement concerned
matters within the scope of her employment. Indeed, any contrary
suggestion is belied by HC's firm reliance on LeBlanc's adverse
performance evaluation as the principal justification for its
decision to terminate Woodman. Finally, the circumstantial
evidence proffered in the Woodman affidavit attests, and the
excluded statement itself reflects, that LeBlanc purported to be
communicating to Woodman information acquired at the HC manage-
ment meeting.
We conclude that though the Woodman affidavit may
___
reflect that LeBlanc's description of HC management's attitude
toward older workers was predicated on more than one statement
made at the management meeting in LeBlanc's presence, her state-
ment to Woodman was not hearsay, even though offered for its
truth. See Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir.
___ ______ ____________
1990) (finding no error where trial court, in ADEA action,
16
admitted into evidence the statement made by manager to sub-
ordinate that "it's a concern of some of the guys in New York
that some of our people in their sixties are going to be
replaced"); see also Brookover v. Mary Hitchcock Memorial Hosp.,
___ ____ _________ _____________________________
893 F.2d 411, 417-18 (1st Cir. 1990) (holding that nurses'
statements that bed restraints should have been used on patient
were made within scope of nurses' employment); Union Mut. Life
________________
Ins. Co., 793 F.2d at 8-9 (holding that statement by lower level
________
accountant, charged with preparing billings relating to employer-
's leases, concerned matter within scope of accountant's employ-
ment, in circumstances where information upon which proffered
statement was based was located in file in accountant's posses-
sion within the scope of employment). Accordingly, the eviden-
tiary ruling constituted an abuse of discretion, as it was based
upon a misapplication of Rule 801(d)(2)(D) and resulted in a
denial of Woodman's right to trial on the ADEA claim. See Siegal
___ ______
v. American Honda Motor Co., Inc., 921 F.2d 15, 17 (1st Cir.
________________________________
1990).
IV
IV
CONCLUSION
CONCLUSION
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A rational factfinder could conclude that the errone-
ously excluded non-hearsay statement attributed to Mary LeBlanc
provided cogent evidence probative not only of pretext and
impermissible age-based discrimination on the part of HC, see
___
Goldman, 985 F.2d at 1117-18 (plaintiff-employee may rely on same
_______
evidence to prove both pretext and discrimination), but also of
17
the untruthfulness of the LeBlanc performance review immediately
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preceding Woodman's dismissal. See Hicks, 113 S. Ct. at 2749.
___ _____
We express no view whatever on these credibility issues, of
course, except to note that at summary judgment such questions
were to be resolved in favor of Woodman. See Velez-Gomez, 8 F.3d
___ ___________
at 877. HC was not entitled to summary judgment, given the
competent evidentiary proffer that its articulated reason for
discharging Woodman was an untruthful pretext for intentional
age-based discrimination. See Hicks, 113 S. Ct. at 2749.
___ _____
Consequently, the district court judgment must be vacated and the
ADEA claim must be remanded for factfinding.
The district court judgment is vacated. The case is
The district court judgment is vacated. The case is
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remanded for further proceedings consistent with this opinion.
remanded for further proceedings consistent with this opinion.
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Costs are awarded to appellant.
Costs are awarded to appellant.
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