USCA1 Opinion
January 23, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1817
JACK SCHWARTZ,
Plaintiff, Appellant,
v.
THE MITRE CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
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Torruella, Chief Judge,
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Cyr, Circuit Judge,
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and Skinner,* Senior District Judge.
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Paul H. Merry, with whom Garrity, Levin & Muir was on brief for
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appellant.
David J. Kerman, with whom Jackson, Lewis, Schnitzler & Krupman
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was on brief for appellee.
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*Of the District of Massachusetts, sitting by designation.
Per Curiam. Plaintiff-appellant Jack Schwartz chal-
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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
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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
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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
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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-
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1See 29 U.S.C. 623 (1988 & Supp. V); Mass. Gen. Laws Ann.
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ch. 151B (West 1996); Charland v. Muzi Motors, Inc., 631 N.E.2d
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555, 557-58 (Mass. 1994)(ruling that chapter 151B provides the
exclusive statutory remedy for age discrimination).
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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
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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.
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Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (noting limited proba-
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tive value of statistical evidence in disparate treatment case),
cert. denied, 114 S. Ct. 1398 (1994). Finally, Schwartz
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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
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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
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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.
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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.
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