Schwartz v. Mitre Corporation ( 1996 )

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          January 23, 1996      [NOT FOR PUBLICATION]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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