Thomas B. Connell v. Bank of Boston and John S. Ingalls , 924 F.2d 1169 ( 1991 )

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal in an age discrimination case by plaintiff-appellant Thomas B. Con-nell from a summary judgment in favor of plaintiff’s employer the Bank of Boston, and John S. Ingalls, the bank official who discharged plaintiff.

The complaint had five counts: Count I alleged that plaintiff was discharged effective June 30, 1986, because of his age in violation of 29 U.S.C. § 623; Mass.Gen.L. ch. 149, § 24A, and Mass.Gen.L. ch. 151B; Count II alleged discrimination based on retaliation; Count III alleged willful age discrimination in violation of 29 U.S.C. § 626(d)¹ (1976); Count IV alleged breach of implied contract for fringe and pension benefits; and Count V alleged the intentional infliction of emotional distress.

The district court found that “the plaintiff has not presented evidence which would permit a jury to conclude that the abolition of his job flowed from other than legitimate business considerations.” It therefore granted summary judgment on Counts I, II and III. It dismissed Counts IV and V on the basis of “persuasive authority.” No appeal has been taken from the dismissal of Counts IV and V.

STANDARD OF REVIEW

A. Summary Judgment Generally

Fed.R.Civ.P. 56(c) is the starting point. It provides in pertinent part:

The judgment sought shall be rendered forthwith if 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.

The words “genuine issue of material fact” have been judicially refined and defined:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). This teaching was reiterated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Id. at 322, 106 S.Ct. at 2552. See also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir.1990); Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1106 (1st Cir.1989).

B. Summary Judgment In An ADEA

Case

In the absence of direct evidence of age discrimination, as is the case here, an ADEA plaintiff in a discharge case must clear two hurdles. He must first produce evidence establishing a prima facie case. This hurdle has several requirements. Plaintiff must show:

1.He was within the protected age group, that is 40-70 years of age;²

2. He was performing his job at a level that met his employer’s legitimate expectation; and

3. He was replaced by someone with roughly similar qualifications.

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8-9 (1st Cir.1990); Loeb v. Textron, Inc., 600 F.2d 1003, 1011 (1st Cir.1979).

If a prima facie case is made, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for plaintiff’s discharge. The articulation of such a reason nullifies the inference raised by the prima facie case. See Medina-Munoz, 896 F.2d at 9; Menard v. First Sec. Services Corp., 848 F.2d 281, 285 (1st Cir.1988). Plaintiff must then clear the second hurdle by showing that the employer’s articulated reasons were only a pretext for age discrimination. The plaintiff is required to “do more than simply refute or cast doubt,” on the employer’s rationale. He must “also show a discriminatory animus based on age.”³ Medina-Munoz, 896 F.2d at 9. The key question becomes whether the employer fired plaintiff because of his age. Id. We do not second-guess the business decisions of an employer. Rossy v. Roche Products, Inc., 880 F.2d 621, 625 (1st Cir.1989).

With these principles as our guide, we now turn to the facts, viewing them in the light most favorable to the plaintiff, the party opposing the motion, and indulging all inferences favorable to him. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988).

THE FACTS

A. Prima Facie Case

Plaintiff was forty-seven years old when he was discharged by the Bank. This puts him within the age category covered by the ADEA. 29 U.S.C. § 631(a). He thus has met the first requirement for a prima fa-cie ease.

We turn to the next requirement, that he was performing his job at a level that met the Bank’s legitimate expectations. Plaintiff started working for the Bank in 1963 as a teller in the Branch Division. He remained in this division for fourteen years, serving as head note teller at the Kenmore Square branch for seven years and teller-in-charge at the South Boston branch for more than two years. His job evaluations during his time as a teller can fairly be described as fair to good. There is no indication that he was considered an outstanding employee. We need not go into the details of plaintiffs work evaluations during his time as teller because it is the appraisals of his work in the Municipal Finance Unit of the Public Finance Division, where he was employed when he was discharged, that are pertinent.

In 1977 plaintiff was transferred, presumably at his own request because of better promotion opportunities, to the Municipal Finance Unit. He became an officer of the Bank in 1978 and an assistant vice-president in 1982. His performance as an officer was rated as competent. The officers’ job performances were rated in accord with a scale: 1 (Unsatisfactory); 2 (Fair); 3 (Competent); 4 (Commendable); and 5 (Distinguished). In an Officer Performance Appraisal dated November 2, 1981, he received an overall performance rating of 3 (Competent). This was followed by an Officer Performance Appraisal dated November 23, 1982, of 4 — . The next Officer Performance Appraisal, dated November 28, 1983, gave him an overall performance rating of 3 + . He received the same score on the appraisal of November 2, 1984. Plaintiff received a 3 rating in the next appraisal dated September 11, 1985. This is the last job evaluation appraisal in the record.⁴ Viewing the facts in the light most favorable to plaintiff, we find that he has met the second requirement for a pri-ma facie case: he was performing at a level that met the Bank’s legitimate expectations; he was never rated less than a competent bank officer.

The final requirement for making a prima facie case is that he was replaced by someone with qualifications similar to his own. This is perhaps arguable, since the Municipal Finance Unit in which plaintiff served was disbanded. However, plaintiff presented evidence that after the date of plaintiff’s termination, June 30, 1986, two people, both younger than plaintiff, were hired and placed in the Public Merchant Banking Unit which ostensibly took on the functions of the Municipal Finance Unit. Viewing the record most favorably to plaintiff, we believe he sufficiently established the third prong of a prima facie case.⁵ The Bank, in any event, as described below, countered by articulating a legitimate nondiscriminatory reason for his discharge. By so doing, the Bank nullified any discriminatory inference raised by the prima facie case and left as the sole dispositive question, the following: Has plaintiff raised a genuine factual issue concerning whether the Bank’s articulated reason was but a pretext for age discrimination?

B. The Bank’s Articulated Reasons for Plaintiffs Discharge

On February 3, 1986, John S. In-galls, age 36, was appointed managing director of the Public Finance Division of the Bank. Shortly after Ingalls took command, Carol Stevens Eno, the manager of the Municipal Finance Unit in which plaintiff worked, recommended to Ingalls that the unit be abolished because of its failure to show a profit and its discouraging prospects. Two new laws reduced the unit’s major sources of revenue: Mass.Gen.L. ch. 44, § 55B prohibited municipalities from depositing funds in non-interest bearing accounts; and the 1986 Federal Tax Reform Act imposed substantial new restrictions on the issuance of general obligation bonds.

In his affidavit and deposition, Ingalls gave two principal reasons for plaintiffs discharge. After receiving Eno’s recommendation, Ingalls eliminated the Municipal Finance Unit and set up a new one, the Municipal Financial Advisory Sources Unit. He also made other organizational changes. Five municipal account officers were involved in the elimination of the unit in which plaintiff worked: Kelvin Brooks, Allan Totsi, Gerald Mecca, Stephen Knight and the plaintiff. Ingalls compared the relative performance of each and found Connell to be the weakest. Plaintiff disputes this, but the performance ratings bear Ingalls out except as to Mecca, who had the same rating as plaintiff but more favorable comments. Ingalls also knew that Eno did not have a favorable view of plaintiff’s work. Plaintiff had disagreed with Eno’s latest appraisal of his work and refused to agree to the goals Eno had established for him. Eno informed plaintiff that he should rethink his position and agree to the goals or resign. She wrote a memo to Ingalls on March 28, 1986 informing him of the situation, stating inter alia, “it is very important that you back me up.”

Ingalls believed that plaintiff had mishandled two important municipal accounts, one for the town of Northbridge and the other for the city of Lynn. In his affidavit, Ingalls stated that in March of 1986: “I was advised by the Treasurer for the City of Lynn, Bob McManus, that if Connell was returned to the City’s account, the City would no longer use the Bank as its financial advisor.”

For these reasons Ingalls decided to discharge plaintiff and transfer the four other officers to different positions in the Bank. Brooks was assigned to the Public Merchant Banking Unit, Totsi and Mecca went to the newly formed Municipal Financial Advisory Services Unit, and Knight was transferred to the newly formed Government Banking Unit. As noted, all of these employees were younger than plaintiff. Another employee in the eliminated unit, John Nicolosi, age 32, was discharged. Eno, who was also younger than plaintiff, left the Bank’s employ in September 1986 after helping with the transition and reorganization ordered by Ingalls. It is not clear from the record whether Eno left of her own volition or was discharged. We also note that Ingalls and the Bank parted company in June of 1988.

In his affidavit, Ingalls stated that no one replaced plaintiff as a municipal account officer and that no one was hired to replace either Nicolosi or Eno. Ingalls was emphatic in both his deposition and affidavit that plaintiff’s age was not a factor in his discharge.

Thus, the Bank articulates two related reasons for plaintiff’s discharge: the reorganization of the Bank resulting in the elimination of the unit in which plaintiff worked and plaintiff’s poor performance relative to his peers, particularly in regard to his work as a municipal account officer.

C. Plaintiffs Rebuttal Evidence

1.Plaintiffs Performance

In rebuttal to the statements in Ingalls’ affidavit that plaintiff had mishandled two important municipal accounts, — for the town of Northbridge and the city of Lynn — and that the treasurer of Lynn had told Ingalls that it would not do business with the Bank anymore if plaintiff handled Lynn’s account, plaintiff submitted two affidavits. Robert McManus, treasurer of Lynn stated:

1. I am the Treasurer of the City of Lynn.

2. While I have been Treasurer of the City of Lynn, the City of Lynn has had an account with the Bank of Boston as well as other banks.

3. I did not ever tell Mr. Ingalls, or any other Bank of Boston employee, that if Mr. Connell was assigned to the City of Lynn’s account, I would move the account to another bank and I believe it is very unlikely that anyone would make that statement.

The Treasurer-Collector of the town of Northbridge, Cecelia C. Parker, stated in her affidavit:

1. I am the Collector of the Town of Northbridge, Massachusetts, and in 1985, I was the Treasurer-Collector of the Town of Northbridge.

2. In 1985, I retained the Bank of Boston to handle municipal bond issues because of Mr. Tom Connell.

3. As Treasurer-Collector of the Town of Northbridge, I would have been aware of any problems the Town had with the Bank of Boston, and in particular Thomas Connell’s handling of the Town’s financing.

4. Tom Connell always did a commendable job while working on the Town of Northbridge’s finances.

5. Tom Connell had nothing to do with the delay of the town of North-bridge’s municipal bond issue at the end of 1985.

There are also two letters in the record, one from the town treasurer of Wilmington and the other from the Bristol County Treasurer thanking plaintiff for services he rendered and commending him for his work.

2. Reorganization

It is undisputed that changes in federal and state laws had made the Municipal Finance Unit unprofitable and that a reorganization occurred pursuant to which the unit was eliminated. Furthermore, at least one other individual besides Connell (Nico-losi, age 32) lost his job as a result of the reorganization. No evidence exists that another Bank officer was created or hired to replace plaintiff. Rather the remaining officers who were not fired seem to have split up plaintiff’s work, with staff help. To be sure, while the Municipal Finance Unit was eliminated, most of its functions were carried on and all of the original five officers except plaintiff were retained in one or another capacity. In his deposition, Ingalls testified, “[we] did not cease to perform any particular function as a result of the reorganization.” This is not a situation where, as Eno had recommended, the unit and the functions it performed were entirely eliminated. Still, plaintiff’s ratings were below all the others except Mecca, and Mecca had more favorable comments than plaintiff.

3. Age Animus

Besides rebutting an employer’s proffered reasons for firing a plaintiff, the evidence must ultimately be sufficient to permit the factfinder reasonably to infer that plaintiff was fired because of his age.⁶ Proof along these lines need not be of the “smoking gun” variety and, in some factual settings, the mere showing of the falsity of the employer’s stated reasons may, along with the other facts and circumstances in the case, give rise to a reasonable inference of age discrimination. But this is not a matter that can be addressed by formula. For a plaintiff to prevail on his ultimate burden, the totality of the circumstances must in each case create a reasonable inference that the employer’s stated reasons were a pretext for unlawful [age] discrimination. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The inference of intentional age discrimination must rest on more than speculation and conjecture. See Dea v. Look, 810 F.2d 12, 17 (1st Cir.1987) (holding the plaintiff could not survive summary judgment merely by presenting his own version of the reasons behind the employment decision).

In order to make such a showing here, plaintiff points to the Bank’s exploration, consideration and ultimate rejection of an early retirement program for its employees. The exploration of an early retirement program started at about the same time that two consulting firms, McKinsey & Company and Booz-Allen & Hamilton, were hired to study the Bank’s organizational and management structure with an eye to reducing costs and increasing productivity. We do not see how the Bank’s mere consideration of an early retirement program, followed by its eventual rejection, is itself proof of age animus vis a vis plaintiff. Nor do the management studies on productivity and cost reduction, without more, prove age animus. However, in support of his contention that the reorganization was motivated by age animus, plaintiff also offers the affidavits of two bank officials.

John B. Ellington, a vice-president who worked in the Bank's Employment Relations/Human Resources Office, stated in an affidavit:

1. From June, 1979 through January, 1987, I was an Assistant Vice President/Vice President of the Bank of Boston working in the Employment Relations/Human Resources Office.

2. During the period from 1984 through 1986, as part of my responsibilities in the Human Resources area, I tracked employees being terminated by the Bank of Boston.

3. Between 1984 and 1986, the Bank of Boston terminated at least 95 employees, more than 75% of whom were over 40 years of age.

4. During 1982 through 1986, I am aware that the Bank of Boston was studying early retirement proposals in order to enable people who were with the Bank of Boston for a considerable length of time to retire early.

5. The Bank of Boston never adopted any early retirement program to my knowledge, but many individuals who would have been covered by such a program were separated as a result of reorganizations.

Ellington’s deposition testimony indicated that, in 1984 and 1985, the Bank was looking to see “if there were ways we could accomplish the same work with fewer people.” The Bank was overstaffed and had higher salary costs and more people than other similar organizations. A reorganization plan was, therefore, put into effect. Many employees were terminated due to the reorganization of the Bank. Of the 80 to 100 employees that Ellington knew were to be discharged, he believed that there were more between the ages of 45 to 50 than below.

Curtis G. Browne, an officer at the bank, stated in an affidavit:

1. I have personal knowledge of the facts set forth herein.

2. I worked for the Bank of Boston for thirty-three (33) years from 1954 through 1987, and became a Corporate Service Officer, one of the more senior Bank employees.

3. In about 1982,1 began to hear that the Bank management wanted to revitalize the Bank.

4. Shortly thereafter, consultants from McKinsey & Company, Inc. and/or Booz-Allen visited divisions of the Bank and spoke with many of the employees of the Bank.

5. Also beginning in about 1982, I began hearing about early retirement programs that were being developed and considered by the Bank.

6. By 1984 and 1985, I knew that early retirement proposals were being considered and that various options being considered covered different age groups.

7. I know that while I was employed by the Bank none of the early retirement proposals were ever adopted and that the Bank determined to eliminate more of the senior employees through other methods of reduction in force.

8. Beginning in about 1984, the Bank began to reorganize a number of departments within many of the divisions of the Bank and, with each reorganization, I was aware that some older Bank employees were being terminated.

9. I know that the more senior Bank employees were frequently terminated in the “reorganizations” and there were fewer “old timers” in the Bank by the time I retired.

As noted, the plaintiff bears the burden of proving that the Bank intended to discriminate against plaintiff because of his age. Since intent is a “pure question of fact,” Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982), the issue we must consider is “whether the plaintiff could prevail if a jury or judge believed plaintiffs version of the facts and disbelieved defendant’s version.” Stepanischen v. Merchants Dispatch Transportation Corp., 722 F.2d 922, 928 (1st Cir.1983).

Applying this standard, we agree with the district court that plaintiffs evidence is not sufficient to permit an inference of age discrimination. Although plaintiffs evidence concerning the municipal accounts may be sufficient to rebut the Bank’s assertion that he was dismissed due to his poor performance on those particular accounts, he has not offered any evidence to show that the bank’s other reason, his relatively lackluster performance evaluations, was pretextual. Moreover, even if plaintiff’s evidence were sufficient to rebut the bank’s stated reasons for his dismissal, the evidence overall has to be sufficient for a factfinder reasonably to infer that the Bank’s actions were motivated by age animus. We do not think that the plaintiff has met that burden here.

Plaintiff relies principally on the affidavits of Ellington and Browne in order to show age animus. Affiant Ellington states that “between 1984 and 1986, the Bank of Boston terminated at least 95 employees, more than 75% of whom were over 40 years old.” Standing alone, this statement could constitute significant evidence of age animus. However, the Bank submitted an affidavit from the Director of the Bank’s Human Resources Information Systems (the “Lauer affidavit”), stating that between 1984-86, over 900 Bank employees were terminated of whom less than 17% were over 40. Connell has not disputed the accuracy of the Bank’s figures nor has he explained how the admittedly incomplete sample discussed in the Ellington affidavit is statistically relevant.

The Lauer affidavit does not indicate the percentage of employees over 40 in the full-time workforce at the Bank. Thus, it does not establish that the Bank did not terminate older employees at a disproportionate rate. The Bank, however, does not bear the burden of proving that it did not discriminate. Rather, Connell must prove that it did. By demonstrating that the sample in the Ellington affidavit represents only a small subset of the total number of employees terminated, the Lauer affidavit casts substantial doubt on the relevance of the Ellington sample — a point which Con-nell has made no effort the explain. Consequently, we agree with the district court that the probative value of the Ellington affidavit must be discounted.

Unlike the Ellington and Lauer affidavits, the Browne affidavit offers no statistical information concerning the termination of older employees. Rather, Browne simply states that the Bank had been considering an early retirement program, that no such program had been adopted, that some older employees were terminated through reorganizations, and that there were fewer “old timers” in the bank when he retired. Perhaps the strongest indication of age animus would be Browne’s stated opinion that “the Bank determined to eliminate more of the senior employees through other methods of reduction in force.” (Emphasis supplied.) However, nowhere does Browne point to facts buttressing this broad assertion or explaining how Browne learned of the Bank’s intentions to eliminate seniors. Browne himself is described simply as “a Corporate Service officer, one of the more senior Bank Employees.” It is not indicated that he participated in meetings where Bank employment policies were made, that his responsibilities included making such policies, or that he had overheard the remarks of officers having such responsibilities. Nothing in his affidavit indicates the basis for his having discovered that “the Bank determined to eliminate more of the senior employees through other methods of reduction in force.” Without a foundation to indicate the basis for Browne’s information, we doubt the admissibility of such a generalization about the Bank’s intentions⁷ and therefore the appropriateness of considering the Brown affidavit on summary judgment.⁸

Our role, of course, is not that of fact-finder — we are not to weigh the evidence or make credibility judgments. Moreover, we are required to view the evidence in the light most favorable to the plaintiff. Our task, more simply stated than accomplished, is to review the record before us to determine whether a genuine issue of material fact exists for trial. However, as we held in De Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 941 (1st Cir.1988), “the question is not whether there is literally no evidence favoring the nonmov-ant, but whether there is any upon which a jury could properly proceed to find a verdict in that party’s favor.” Had plaintiff offered evidence of the statistical relevance of the Ellington sample, the conflicting affidavits might have been sufficient to create a genuine issue of material fact. Without more, plaintiff’s affidavits provide at best a small sample of employment data, without any showing of the statistical relevance of the sample, and a series of vague statements and conjectures. We, therefore, hold that the plaintiff has not made a showing sufficient to survive summary judgment with respect to his age discrimination claim.

THE RETALIATION CLAIM

The facts plaintiff relies on for his retaliation count, which come from his own deposition and affidavit, are as follows. On May 30, 1986, Ingalls called plaintiff at home, while plaintiff was on vacation, and told him about the reorganization plans. When plaintiff inquired as to where he fit in to the new scheme of things, Ingalls responded that he did not fit in and that Toby Danforth, a bank official, would tell him what was going to happen on Friday (the next day). Danforth contacted plaintiff the next day and told him that he should go back to work on Monday and work until the 30th of June. Plaintiff was also told that as long as his work was up to date, he could use his office until June 30 for contacting prospective employers.

On June 2, plaintiff retained counsel. On June 11, he hand-delivered to Danforth a letter from his attorney stating that plaintiff intended to protect his rights regarding his termination. Immediately after delivering the letter, plaintiff was allegedly told by Danforth that because he had contacted a lawyer, “All bets are off.” On June 13, Ingalls called plaintiff into his office and said, “Don’t get lawyers involved. Let some-one else pay the lawyers. You don’t need a lawyer.” On the afternoon of the same day, Ingalls ordered plaintiff to vacate his office and told him that he would have no further access to any office in the Bank. According to plaintiff, the reason Ingalls gave for evicting him from his office two weeks prior to the promised date of June 30 was:

You’re very popular with municipalities out there and with other banks, and peo-pie respect you and we don’t want to lose any of our clients, and I feel I’d like to have you out of your office so we can put somebody else in there and get on with the workings of the department.⁹

Plaintiff’s severance pay and other benefits were computed as of June 30. His pension had vested prior to the notification on May 31 that he would be discharged effective June 30. The only detriment to plaintiff as a result of the Bank’s sudden eviction of him from its premises was the loss of the use of his office for a period of two weeks to contact prospective employers.

The retaliation provision of the ADEA provides in pertinent part:

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... had made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d).

In order to establish a prima facie case of retaliation, plaintiff must show that: he engaged in conduct protected by the act; he was subjected to an adverse employment action at the time or after the protected conduct occurred; and there was a causal link between the protected conduct and the adverse employment, action. Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154-55 (8th Cir.1989); see also Oliver v. Digital Equipment Corp., 846 F.2d at 110-111; Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 202 (1st Cir.1987).

It is self-evident that by retaining an attorney plaintiff had engaged in an activity protected under the Act. See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989); Byers v. Follmer Trucking Co., 763 F.2d 599, 601-02 (3d Cir.1985). And although the plaintiff’s status at the time of the retaliatory action was that of an employee about to be terminated, he was protected under the Act. See Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir.1977) (employee has retaliatory claim against bank even though she voluntarily terminated her employment three months prior to retaliatory action which resulted in her not obtaining another job); Wolf v. J.I. Case Co., 617 F.Supp. 858, 868 (D.C.Wis.1985) (retaliation need not have occurred prior to plaintiff’s termination).

The only question is whether the Bank’s action, which was retaliatory, comes within the scope of the statute. Did it constitute “discrimination” against the plaintiff, or to put it another way, was it an adverse employment action? We think not.

Most cases involving a retaliation claim are based on an employment action which has an adverse impact on the employee, i.e., discharge, demotion, or failure to promote. Here it had been irrevocably decided that plaintiff would be discharged on June 30. He was discharged two weeks prior to that time but was paid in full to June 30, and all of his severance benefits were computed as of that date. Plaintiff has not alleged that he was damaged in any way by the Bank’s action.

We have found one case almost directly on point. In Miller v. Aluminum Co. of America, 679 F.Supp. 495 (W.D.Pa.), aff'd without opinion, 856 F.2d 184 (3d Cir.1988), plaintiff was informed in September that she would be discharged for poor performance at the end of December. In October she filed a complaint with the EEOC alleging sexual discrimination. On November 7, she was told not to report for work anymore. She received full employment benefits as if she had worked to her scheduled termination date. Id. at 504. The court held that because plaintiff received her full benefits to the date of the original termination date there was no adverse employment action. Id. at 505.

In Yates v. Avco, 819 F.2d 630, 638 (6th Cir.1987), a case relied on by the Miller court, it was held that a temporary demotion without reduction in pay or benefits did not ground a retaliation claim under the ADEA. The only other case we have found in the general target area is Passer v. American Chemical Soc., 701 F.Supp. 1 (D.D.C.1988). It held that the cancellation of a symposium honoring plaintiff was not retaliation as intended by the ADEA. Id. at 3.

We hold that although the Bank’s peremptory discharge of plaintiff two weeks prior to the notified date could be found to be retaliatory, it was not an adverse employment action within the meaning or intent of 29 U.S.C. § 623(d).

SUMMARY

We affirm the summary judgment for defendants on Count I (discrimination claim) and Count II (retaliation claim); we remand to the district court with instructions to dismiss Count III because it is without statutory authority, and its allegations are subsumed in Count I. The dismissal of Counts IV and V have not been appealed.

Costs awarded to appellee.

1 . The reference to (d) appears to be a mistake; 29 U.S.C. § 626(d) has to do with filing charges with the EEOC.

2 . When Hebert v. Mohawk Rubber Co., 872 F.2d 1104 (1st Cir.1989) was decided, the protected class was defined as those individuals who are at least 40 years of age but less than 70 years of age. The maximum age limitation of 70 was removed in the Age Discrimination in Employment Amendments of 1986, Pub.L. No. 99-592 (Oct. 31, 1986), effective Jan. 1, 1987.

3 . We do not suggest that the plaintiff must, necessarily, offer affirmative evidence of age animus in addition to rebutting the employer's evidence. Rather, the evidence as a whole, whether direct or indirect, must be sufficient for a reasonable factfinder to infer that the employer’s decision was motivated by age animus.

4 . We realize that plaintiff disagreed with many of his ratings and some negative written comments in the job performance appraisals. It is not our function, however, to evaluate the job appraisals where there is no evidence that they were motivated or slanted by age animus.

5 . In cases involving force reductions, this court has suggested that, as an alternative to showing replacement by a similarly qualified person, a plaintiff may establish a prima facie case by showing "the employer did not treat age neutrally or that younger persons were retained in the same position.” Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1111 (1st Cir.1989).

6 . As the Supreme Court noted in Texas Dept. of Community Affairs v. Burdine, “[t]his burden [of production] now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

7 . Fed.R.Evid. 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

The plaintiff has offered no information as to the specific observations upon which Browne's opinions are based. Neither are the opinions, as expressed in the affidavit, "helpful to ... the determination of a fact in issue." Rather, the affidavit simply states Browne's opinion as to the ultimate issue, a determination which, as a lay witness, Browne is no more prepared to make than the trier of fact. See Mitroff v. Xomox Corp., 797 F.2d 271 (6th Cir.1986) (rejecting the opinion of a manager as to the exist-

ence of age discrimination and explaining that "seldom will be the case when a lay opinion on an ultimate issue will meet the test of being helpful to the trier of fact since the jury's opinion is as good as the witness' ..."). 797 F.2d at 276.

8 . Fed.R.Civ.P. 56, relative to summary judgment, provides that:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein." Fed.R.Civ.P. 56(e).

The Browne affidavit thus fails on two counts: it does not set forth statements that would be admissible nor does it establish Browne’s competence to testify to those statements.

9 . This statement contradicts Ingalls’ affidavit testimony that one of the reasons for discharging plaintiff was his poor performance as a municipal finance officer.