Boucher v. Edgcomb CV-94-185-JD 10/24/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Boucher

v. Civil No. 94-185-JD

Edgcomb Metals Co., et al.

O R D E R

The plaintiff Richard Boucher brings this action under the

Age Discrimination in Employment Act ("ADEA"),

et

seg., and the Fair Labor Standards Act ("ELSA"),

et seg., to recover losses related to his June 1992 demotion and

March 1993 termination by his former employer, defendant Edgcomb

Metals Company Home. Before the court is the defendant's motion

for summary judgment on both claims (document no. 42).

Background1

The defendant processes and distributes metal products from

several locations around the country, including a facility

located in Nashua, New Hampshire. The plaintiff was hired by the

defendant in 1963 and remained in its employ until his March 12,

1993, termination. Beginning in 1979, the plaintiff held a

1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. variety of positions related to the shipping of the defendant's

products. The plaintiff served as traffic manager from 1989

until he was replaced by a less gualified, thirty-two year-old

employee in June 1992. The plaintiff, who was then age fifty-

three, was terminated the following year. The court incorporates

other facts, infra, as necessary for its analysis of the legal

issues presented by the instant motion.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993), cert.

denied, 115 S. C t . 56 (1994) (guoting Wynne v. Tufts Univ. Sch.

of Medicine,

(1st Cir. 1992), cert. denied, 113

S. C t . 1845 (1993)). The court may only grant a motion for

summary judgment where 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).

The party seeking summary judgment bears the initial burden

of establishing the lack of a genuine issue of material fact.

2 Celotex Corp. v. Catrett,

(1986); Quintero de

Quintero v. Aponte-Rogue,

(1st Cir. 1992).

The court must view the entire record in the light most favorable

to the non-moving party, "'indulging all reasonable inferences in

that party's favor.'" Mesnick v. General Elec. Co.,

(1st Cir. 1991) (guoting Griqqs-Ryan v. Smith,

(1st Cir. 1990), cert, denied, 112 S. C t . 2965 (1992)).

However, once the moving party has submitted a properly supported

motion for summary judgment, the non-moving party "may not rest

upon mere allegation or denials of [its] pleading, but must set

forth specific facts showing that there is a genuine issue for

trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)). Finally, even in

employment discrimination cases, "where elusive concepts such as

motive or intent are at issue, summary judgment may be

appropriate if the nonmoving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

Smith v. Stratus Computer,

(1st Cir. 1994) (gender

discrimination) (guoting Goldman v. First Na t '1 Bank of Boston,

(1st. Cir. 1993)), cert. denied, 115 S. C t .

1958 (1995) .

3 COUNT ONE: AGE DISCRIMINATION CLAIM

The parties agree that this case is governed by the burden-

shifting praxis announced in McDonnell Douglas Corp. v. Green,

(1973). See, e.g.. Woodman v. Haemonetics Corp.,

(1st Cir. 1995) (applying McDonnell Douglas to

ADEA) (citing cases). The court will address each stage of the

analysis seriatim.

I. Stage One: The Plaintiff's Prima Facie Case

At stage one, the plaintiff is reguired to make a prima

facie showing that he (1) was at least forty years old; (2) met

his employer's legitimate performance expectations; (3)

experienced adverse employment action; and (4) the defendant did

not treat age neutrally or retained a younger person in the

plaintiff's position. E.g., Woodman,

(citing

LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993),

cert. denied, 114 S. C t . 1398 (1994); Goldman,

)). The stage one prima facie showing "is not especially

burdensome,"

(citing Greenberg v. Union Camp Co.,

(1st Cir. 1995)), and once established creates a rebuttable

presumption that the defendant engaged in unlawful age

discrimination. E.g.,

(citing Goldman,

).

4 The defendant concedes that the plaintiff has satisfied the

first and third elements of his prima facie case. However, the

defendant argues that it is entitled to summary judgment because

the plaintiff has not and cannot satisfy the second and fourth

elements. The plaintiff responds that the existence of a genuine

dispute of material fact on each of the two disputed elements

precludes entry of summary judgment at this stage.

Edgcomb asserts that the plaintiff has not satisfied the

second element because his job performance and gualifications,

although acceptable prior to his demotion and termination, were

no longer adeguate for the revised traffic manager position,

particularly in light of Edgcomb's deteriorating financial

condition and sharp reductions in force. See Defendant's

Memorandum of Law in Support of Summary Judgment at 20, 27

(plaintiff's evaluations indicate that his performance levels

decreased as job responsibilities increased), 28 (Edgcomb "needed

someone who could lead the department through difficult times and

handle increasing levels of responsibility").

The plaintiff has adduced evidence, much of it disputed or

termed irrelevant by the defendant, to establish that he did meet

Edgcomb's legitimate performance expectations. See, e.g..

Plaintiff's Memorandum in Opposition to Summary Judgment at 12-

16. For example, the plaintiff was named employee of the month

5 in July 1989; received performance ratings and written comments

showing levels at or above "good/competent" in 198 9 and 1991; and

in 1991 was selected as unit manager for "Project JumpStart," a

company-wide initiative designed to reduce costs and increase

efficiency.

exhibits 11, 15; Deposition of Peter Ward, vol.

I at 104-106. Moreover, in the April 5, 1992, Boston Globe,

Edgcomb advertised the traffic manager job as reguiring, inter

alia, "a minimum of 3 years supervisory experience in trucking

. . . which includes direct responsibility for D.O.T. and

drivers."

exhibit 20. The plaintiff satisfied these and

other job reguirements articulated by Edgcomb, id. at 16, and,

according to Ray Fisher, an Edgcomb plant operations manager, the

plaintiff was more gualified for the position than the individual

hired as his replacement. Id. at 17 (citing Deposition of

Richard Boucher, vol. I at 145-46). In addition, the plaintiff

has submitted statistical evidence indicating that his

department's monthly on-time delivery performance figures were at

least ten percent higher in each of the four months immediately

preceding his demotion than they were in the three months that

followed. Id. at 22 (citing exhibit 14). Likewise, as traffic

manager the plaintiff reduced annual driver overtime charges from

$113,794 in 1989, to $15,487 in 1992. Id. at 22 (citing Ward

Deposition, vol. II at 206-07; exhibit 21). Given this and other

6 evidence, the court finds that the plaintiff has satisfied the

second prima facie element.

Edgcomb next asserts that the plaintiff has not satisfied

the fourth element of the prima facie case because the plaintiff

technically was not replaced by a younger individual. See

Defendant's Memorandum in Support of Summary Judgment at 2 9

("Rallis [the younger worker] was not hired to replace plaintiff

in the sense that defendant was not going to terminate plaintiff

to make room for Rallis."). Rather, Edgcomb asserts that it

hired the younger worker to fill a newly-created traffic manager

position in which the younger worker would supervise the

plaintiff and perform other tasks previously delegated to other

employees. See id. at 29-31.

Again the plaintiff has adduced evidence to establish that

Edgcomb did, in fact, retain a younger worker in the same

position. First, the plaintiff has submitted the "new hire" form

completed by the defendant at the time Rallis was hired. The

form states that Rallis was hired as the "Replacement for Richard

Boucher who is to be reassigned at another position."

Plaintiff's Memorandum in Opposition to Summary Judgment, exhibit

9. The new hire form also identifies Rallis' position as

"TRAFFIC MANAGER NASHUA" -- the same title freguently used to

describe the plaintiff's position. See id., exhibit 9; see also

7 exhibits 1-4, 6 (affidavits of Edgcomb employees describing

plaintiff as traffic manager). Second, Arnold Thibodeau, a

former inside sales manager for the defendant, testified that in

October, 1991, he was offered and rejected the plaintiff's

position. See id., exhibit 1; Affidavit of Arnold Thibodeau at

55 10-13. Given this and other evidence, the court finds that

the plaintiff has satisfied the fourth prima facie element.

Accordingly, the plaintiff has established a rebuttable

presumption of impermissible age discrimination.

II. Stage Two: The Defendant's Legitimate Reason

At stage two, an employer may rebut the presumption of age

discrimination by "articulat[ing] a legitimate nondiscriminatory

reason for the employee's termination." LeBlanc,

(guoting Lawrence v. Northrop Corp.,

(1st Cir.

19 92)); see Texas Pep't of Community Affairs v. Burdine,

(1981); Woodman,

. The employer's burden

at this stage is only one of production, as the plaintiff retains

the burden of persuasion at all times. LeBlanc,

(citing Lawrence,

; Mesnick,

)).

Once the employer has proffered a legitimate nondiscriminatory

justification for its actions, the plaintiff's prima facie case

and attendant presumption of discrimination evaporates. E.g., Woodman,

(citing St. Mary's Honor Ctr. v. Hicks,

(1992)); LeBlanc,

.

Edgcomb has stated with particularity its reasons for first

demoting and later terminating the plaintiff. Edgcomb explains

that it demoted the plaintiff because his skills, although

appropriate for his position prior to the fall of 1991, were no

longer suitable for the broader responsibilities contemplated for

the Nashua traffic manager position following the consolidation

of Edgcomb's New Hampshire operations. See, e.g.. Defendant's

Memorandum in Support of Summary Judgment at 22 ("the whole focus

and direction of distribution was going to change . . . the

company needed someone to prioritize, plan, and handle

confrontation") (citing Deposition of Paul Koza, vol. I at 60-

61), 23-24 (plaintiff not capable of being strong leader) (citing

Deposition of Peter Ward, vol. I at 124-25), 24 (plaintiff was

poor delegator, could not properly prioritize workload, and could

not say no to reguests made by other departments) (citing Koza

Deposition, vol. I. at 16, 50-51).

Edgcomb justifies its termination of the plaintiff as part

of an overall reduction in force in which its total New England

workforce was reduced from approximately 265 employees in 1989 to

approximately 100 employees in 1993. See id. at 35, n.21 (citing

Affidavit of Joseph Canastra at 5 8). At the time he was terminated, the plaintiff was the "number two" manager in a

department that Edgcomb management determined could be run by a

single employee. Id. at 36-37 ("in a reduction in force, a

company needs to keep its best performers . . . a reasonable

company will retain the department heads and release their

subordinates"). The court finds that the defendant, having

articulated a legitimate, nondiscriminatory reason for its

conduct, has satisfied its burden of production at stage two of

the McDonnell Douglas analysis.

III. Stage Three: Pretext and Discrimination

The burden of production shifts back to the plaintiff at

stage three. E.g., Byrd v. Ronavne,

(1st Cir.

1995); Stratus Computer,

; Woods v. Friction

Materials, Inc.,

(1st Cir. 1994). To avoid

summary judgment, the plaintiff must introduce sufficient

admissible evidence to support two additional findings: (1) that

the employer's articulated reason for the job action was

pretextual; and (2) that the true reason was discriminatory.

E.g., Byrd,

; Stratus Computer,

(citing Woods,

). "The plaintiff may rely on the

same evidence to prove both pretext and discrimination, but the

evidence must be sufficient for a reasonable factfinder to infer

10 that the employer's decision was motivated by discriminatory

animus." Stratus Computer,

(citing Goldman,

). Accordingly, at this stage the court must

determine whether the plaintiff has raised a genuine dispute of

material fact that the employer "did not rely on its articulated

reasons in [demoting and terminating the plaintiff] and

unlawfully discriminated against [the plaintiff] because of his

age." Woods,

(emphasis in original).

A. Pretext

In its motion Edgcomb asserts that the plaintiff's case is

fatally flawed because he "has offered no evidence to dispute

defendant's conclusion that he was not the strong leader and

manager needed to run the transportation function." Defendant's

Reply to Plaintiff's Opposition to Summary Judgment at 2.

Rather, it dismisses the plaintiff's evidence of pretext as

"completely deficient" and "based on arrant speculation and his

self-perception of his ability to perform the duties of traffic

manager." Defendant's Memorandum in Support of Summary Judgment

at 40-43.

The plaintiff responds that summary judgment is foreclosed

because discovery has revealed numerous disputes of fact

concerning the material guestion of whether Edgcomb's articulated

11 reasons for his demotion and termination were pretextual. See

Plaintiff's Memorandum in Opposition to Summary Judgment at SO­

SO; Plaintiff's Reply Memorandum at 19.

When determining whether the plaintiff has demonstrated that

the employer's proffered reason is pretextual, the "court's focus

must be on the perception of the decisionmaker, that is, whether

the employer believed its stated reason to be credible."

Mesnick,

(guoting Gray v. New England Tel, and

Tel.,

(1st Cir. 1986)). To meet this burden,

it is not enough for a plaintiff merely to impugn the veracity of the employer's justification; he must elucidate specific facts which would enable a jury to find that the reason given is . . . a sham.

(guoting Medina-Munoz v. R.J. Reynolds Tobacco Co.,

(1st Cir. 1990)). In general, the "most obvious and

relevant piece of evidence [the plaintiff] could introduce to

contradict [the employer's] assertion that he was not the best

gualified for the position would be evidence regarding the

gualifications of those hired."

The court has identified at least two distinct areas of

factual dispute which, depending on how the evidence is construed

by the jury, would support a finding that Edgcomb did not believe

its stated reason to be credible.

First, the plaintiff has adduced relevant evidence

concerning the gualifications of Gregory Rallis, the younger

12 individual hired for the traffic manager position. According to

a "position guestionnaire" completed in October 1990, the

gualifications for the "Traffic Manager IV" position included "at

least four years experience in all aspects of the metal

industry." Plaintiff's Memorandum in Opposition to Summary

Judgment, exhibit 12.2 Rallis' resume does not reference any

prior experience in the metal industry. See

exhibit 19.

Likewise, the advertisement printed in the Boston Globe states

that a "CDL [commercial driver's license], driving experience,

high school diploma and continuing education is a plus."

exhibit 20. The plaintiff's gualifications include both a

commercial driver's license and driving experience while Rallis'

gualifications do not. See

exhibit 19. In addition, the

plaintiff has testified that Ray Fisher, an Edgcomb manager, told

him "something to the effect that [Rallis] doesn't know his ass

from his elbow." Boucher Deposition, vol. IV at 94-96. A

21he plaintiff claims that the guestionnaire was completed jointly by himself and Paul Koza, his former supervisor. See Plaintiff's Memorandum in Opposition to Summary Judgment at 4 6, exhibit 12. Edgcomb maintains that the guestionnaire was completed solely by the plaintiff and, as such, does not identify which skills management considered the job to reguire. See Defendant's Response to Plaintiff's Opposition to Summary Judgment at n.18 (citing plaintiff's deposition). The court notes that, absent an unambiguous factual record, a dispute concerning what gualifications were reguired for the position in guestion and, in turn, who made such a determination, is itself material to the plaintiff's ADEA claim.

13 reasonable jury could conclude that such a remark, particularly

when made by a management-level individual with knowledge of the

defendant's business, the plaintiff, and the younger replacement,

is probative of the replacement employee's gualifications for the

position.3

Second, the plaintiff has submitted the affidavit of Arnold

Thibodeau. Thibodeau testified that following the elimination of

his job as inside sales manager in 1991, Peter Ward and Joe

Canastra offered him the position of traffic manager, then held

by the plaintiff. Affidavit of Arnold Thibodeau at 5 10.

Thibodeau further testified that

[t]he idea of me doing the Traffic Manager's job was ridiculous, because I had no knowledge or experience in transportation. I knew virtually nothing about scheduling the Edgcomb deliveries, about common carriers, or about Department of Transportation regulations.

at 5 12. A reasonable jury could conclude that, by offering

the plaintiff's position to an individual who believed himself to

be ungualified, Edgcomb management replaced the plaintiff for

31he defendant dismisses Fisher's statement, and much of the plaintiff's evidence, as "immaterial" or irrelevant because it does not address the state of mind or conduct of the two people who purportedly were the only "decision-makers at issue in this case." Defendant's Reply to Plaintiff's Opposition to Summary Judgment at 3, n.9. The court notes that Fisher's remark, as retold by the plaintiff, is probative of whether the replacement was more gualified than the plaintiff and, thus, whether the defendant's justification was pretextual.

14 reasons other than those proffered, i.e., to find a more

qualified, stronger manager for the transportation department.

Edgcomb responds that its offer to Thibodeau is entirely

consistent with its legitimate, nondiscriminatory reason for the

employment actions. See Defendant's Response to Plaintiff's

Opposition to Summary Judgment at 13-14. The very fact that each

party has co-opted the Thibodeau job offer in support of its

respective position underscores the existence of a material

dispute of fact over whether the plaintiff was qualified for the

position and, thus, whether Edgcomb's articulated reasons were

pretextual.

The court finds that there is a genuine dispute of material

fact about whether Edgcomb believed its stated reason or instead

used the stated reason as a pretext for its true motivation.

B. Discriminatory Animus

Edgcomb next asserts that "the record is completely devoid

of any evidence which could support a reasonable inference of age

animus." Defendant's Memorandum in Support of Summary Judgment

at 47. Edgcomb argues that

[i]n essence, plaintiff's argument amounts to "age discrimination by default." In other words, because plaintiff cannot think of any other reason why he would have been let go, he assumes that it must have been based on his age. His assumptions, however, are not only wrong, they are wholly inadequate to avoid a summary judgment.

15

.

The plaintiff responds that he has submitted evidence of age

animus and, in addition, that the jury is entitled to infer

discriminatory intent where there is evidence of pretext and a

suspicion of mendacity. Plaintiff's Memorandum in Opposition to

Summary Judgment at 25-28 (citing Hicks, 113 S. C t . 2742);

Plaintiff's Reply Memorandum at 18-22.

To defeat a motion for summary judgment the plaintiff must

marshal sufficient evidence for the jury to find or infer that

the employment action was motivated by age animus. E.g.,

Woodman,

; Woods,

. The plaintiff

may "rely on the same evidence to prove both pretext and

discrimination," Stratus Computer,

, and, as

always, the evidence may be direct or circumstantial. Woods,

. The Supreme Court has indicated that a jury

deciding an employment discrimination claim may infer

discriminatory animus:

The factfinder's disbelief 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. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . .

Hicks, 113 S. C t . at 2749. The First Circuit has interpreted the

Hicks decision

16 as making clear that the Supreme Court envisioned that some cases exist where a prima facie case and the disbelief of a pretext could provide a strong enough inference of actual discrimination to permit the fact­ finder to find for the plaintiff. Conversely, we do not think that the Supreme Court meant to say that such a finding would always be permissible. The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.

Stratus Computer,

(guoting Woods,

n .3)); see Barbour v. Dynamics Research Corp., ___ F .3d, ___ ,

, No. 94-2283,

(1st Cir. Aug. 15, 1995);

Byrd,

; Woodman,

. Although recent

decisions of the First Circuit reveal that there can be no

precise formula for use in determining whether an inference of

discriminatory animus is reasonable on the facts of a given case,

a "truly bare bones prima facie case" of age discrimination is

unlikely to support such an inference. Woods,

n.3.4 Finally, even given the inferences permissible under

4Ihe First Circuit has provided the following example of a case in which the plaintiff's prima facie case and the disbelief of pretext would not provide "a strong enough inference of actual discrimination to permit the fact-finder to find for the plaintiff" :

[SJuppose an employee made out a truly bare-bones prima facie case of age discrimination, and the employer responded that the employee lacked the necessary skills for the job. Suppose also that the unrefuted evidence showed that the response was a pretext, because the employer had fired the employee to conceal the employer's own acts of embezzlement. In such an

17 Hicks, a plaintiff "cannot avert summary judgment if the record

is devoid of adequate direct or circumstantial evidence of

discriminatory animus on the part of the employer."

(quoting

LeBlanc,

).

The court next determines whether the plaintiff has adduced

sufficient evidence to convince a reasonable jury that the

defendant's articulated reason was not only a pretext, but was a

pretext for unlawful age discrimination. The court first

considers the direct evidence submitted on this point and, if

necessary, will proceed to review the evidence that the plaintiff

argues supports an inference of age discrimination under Hicks.

The plaintiff has submitted evidence which he claims is

directly probative of age animus. See Plaintiff's Memorandum in

Opposition to Summary Judgment at 54-55. First, the plaintiff

asserts that "Edgcomb did not apply its criteria for success as a

Traffic Manager [the on-time delivery statistics] in an age

neutral fashion." Id. at 54. Contrary to the plaintiff's

assertion, the court finds that the fact that the on-time

delivery rate was higher under his supervision of the traffic

instance, there would be a prima facie case at the outset and a disbelieved pretext, but we think it plain that no reasonable jury could find age discrimination on such a record.

Woods,

.

18 department than under his replacement's supervision does not

constitute direct evidence of a discriminatory animus. Even

assuming the disputed fact that the on-time delivery rate was an

important performance criteria, evidence that Edgcomb disregarded

its own criteria only is probative of whether Edgcomb actually

demoted and terminated the plaintiff for the reasons stated.

That is, evidence of pretext does not, absent more, also

constitute evidence of pretext as a sham for age discrimination.

The plaintiff also asserts that the defendant's

discriminatory animus is evidenced by its offer of the

plaintiff's job to Thibodeau, the laid-off employee who did not

consider himself to be gualified. Plaintiff's Memorandum in

Opposition to Summary Judgment at 54-55; Plaintiff's Reply

Memorandum at 5-8. Again the argument fails because the

evidence, although probative of pretext, in no way suggests that

the true motivation behind the pretext was unlawful age

discrimination. Indeed, the fact that the defendant may have

offered the position to a man who at age forty-six was

approximately five years younger than the plaintiff indicates

that age did not motivate the demotion and termination decisions.

See generally Maxfield v. Sinclair Int'l,

, 793 (3d

Cir. 1985) ("If the differences in ages of the two employees were

insignificant, the district court would likely find that the

19 evidence was insufficient to permit an inference of

discrimination."), cert. denied,

(1986).

The court concludes that the plaintiff has failed to

identify evidence which, on its own, would allow a jury to

conclude that the motivation behind the pretext was age

discrimination. However, under Hicks and its progeny a jury

presented with a strong prima facie case of age discrimination,

particularly when coupled with solid evidence of pretext and a

suspicion of mendacity, may infer discriminatory animus without

any direct or circumstantial evidence on this element. The court

must determine whether this case would support such an inference.

The plaintiff has stated a prima facie claim of age

discrimination at stage one of the McDonnell Douglas analysis.

For purposes of its analysis under Hicks, the court finds that

the plaintiff has made out more than a "truly bare-bones prima

facie case of age discrimination." Woods,

.

However, the court, mindful that the stage one showing "is not

especially burdensome," Woodman,

, notes that the

evidence presented does not constitute a particularly strong

prima facie case either. Specifically, the second element of the

plaintiff's claim, that he met his employer's legitimate

performance expectations, is based in large part on evidence of

the plaintiff's past acceptable performance and on favorable

20 testimony concerning his qualifications elicited from individuals

not in decision-making positions at Edgcomb, such as former

subordinates and members of management not responsible for the

transportation department. Although the evidence certainly does

highlight a genuine dispute over his qualifications, the proof is

far less convincing in view of the defendant's explanation that

the traffic manager position had been revised and expanded in

response to Edgcomb's well-documented financial difficulties and

dramatic reduction in force. See Menard v. First Sec. Servs.

Corp.,

(1st Cir. 1988) (where business

conditions had changed, prior performance evaluations "not

directly relevant to the issue of whether he was qualified at the

time of discharge"). In sum, the court finds that the

plaintiff's prima facie case, although not bare bones, is

vulnerable because at least one element of the claim is supported

by evidence of questionable relevance.5

The court also has found, supra, that the plaintiff has

marshalled evidence which, when taken in a favorable light and

credited all reasonable inferences in the spirit of Rule 56,

5Likewise, the evidence supporting the fourth element of the plaintiff's prima facie case, i.e., that the defendant retained a younger worker in the same position, is undermined by Edgcomb's evidence that it hired Rallis for a newly-created position which included some of the tasks previously performed by the plaintiff and some responsibilities previously delegated to the plaintiff's supervisors.

21 could support a jury finding of pretext at stage three of the

analysis. The court need not elaborate on the finding for

purposes of its analysis under Hicks.

The plaintiff argues that the record supports a suspicion of

mendacity, that is, a belief that the defendant's conduct is

"characterized by deception or falsehood which often is not

intended to genuinely mislead or delude." Webster's Ninth New

Collegiate Dictionary 741 (1990) . The plaintiff claims that the

existence of disputes of material fact concerning, inter alia,

the veracity of Edgcomb's rationale for terminating him;

Edgcomb's criticism of his past job performance; and Edgcomb's

assertions that Rallis was more gualified for the position;

manifest "stark conflicts on basic issues of fact between Edgcomb

and independent witnesses [which] raise the suspicion of

Edgcomb's mendacity." Plaintiff's Memorandum in Opposition to

Summary Judgment at 54; see Plaintiff's Reply Brief at 14.

The plaintiff correctly observes that the defendant disputes

many if not most of the factual assertions material to the

instant lawsuit. For example, the court finds it somewhat

unusual that Edgcomb's senior management is unable to articulate

clearly what the plaintiff's job title was and what his

responsibilities included. Paul Koza, the defendant's manager of

plant operations, testified that prior to June 1992,

22 We didn't have traffic managers. We had dispatchers. We had a traffic manager from June of 1992 to date. Prior to that, they were referred to as dispatchers. We did not have a person that was labeled and did the job of a traffic manager. They may have had the title of traffic manager, and I explained how that happened, but they were dispatchers. They were not traffic managers.

Koza Deposition, vol. I at 83-84. Peter Ward, the defendant's

director of transportation, recalled that, prior to 1992, the

plaintiff was responsible for some but not all traffic manager

functions and "had the title of traffic manager." Ward

Deposition, vol. I at 87. The testimony of Koza and Ward stands

in contrast to the fact that, in 1989, the plaintiff was named

employee of the month for his performance as "traffic manager,"

and the fact that, in 1990, the plaintiff and Koza jointly signed

a position guestionnaire in which the plaintiff's responsibili­

ties as "Traffic Manager IV" were described. See Plaintiff's

Memorandum in Opposition to Summary Judgment, exhibits 12, 15.

The court agrees that a jury reasonably could view the manner

with which Edgcomb disputes certain basic facts, such as those

concerning the plaintiff's former job title and description, as

evidence of a lack of candor or, perhaps, a mendacious approach

to the instant employment dispute.

The court finds that the plaintiff has presented an adeguate

prima facie case of age discrimination along with evidence of

pretext and a suspicion of mendacity -- the necessary

23 cornerstones of an inference of discriminatory animus under

Hicks. However, such a showing does not ipso facto defeat a

motion for summary judgment because Hicks, fairly read and as

interpreted by the First Circuit, does not diminish the

reguirement that any inference of discriminatory animus must be

reasonable in order to proceed to trial. See, e.g.. Woods,

. Indeed, although the First Circuit recognizes that

there exist some cases in which a jury could infer intentional

discrimination from the prima facie showing and evidence of

pretext, recent decisions confirm that Hicks does not contemplate

such an inference absent a particularly strong evidentiary record

or some thread of evidence probative of a discriminatory animus.

See Barbour,

(affirming entry of summary

judgment where plaintiff "failed to present evidence that would

enable a reasonable jury to conclude that [employer's] actions

were motivated by a desire to interfere" with plaintiff's rights

under ERISA); Byrd,

(affirming entry of summary

judgment where plaintiff presented "no competent evidence from

which a rational factfinder reasonably could infer that

[employer's] explanation for its adverse employment action was a

pretext for employment discrimination" on the basis of gender);

Stratus Computer, 4 0 F.3d at 18 (summary judgment affirmed where

court found "nothing in [plaintiff's] evidence that would permit

24 a reasonable jury to infer that discriminatory animus motivated

[employer] to remove [plaintiff] from her job" on the basis of

gender); Woods,

(summary judgment affirmed where

plaintiff "failed to present sufficient evidence to permit a

reasonable factfinder to infer that [employer's] articulated

reason was a pretext for unlawful age discrimination"); cf.

Woodman,

(summary judgment vacated

because jury reasonably could find or infer age discrimination

given supervisor's testimony that employer "want[s] younger

people here. They will be the one[s] that will be successful

here.").6

6The plaintiff also asserts that a "suspicion of mendacity is enough to preclude summary judgment," and that "in order for a plaintiff to avoid summary judgment, he need only show that the non discriminatory reasons presented by the defendant are pretextual." Plaintiff's Reply Memorandum at 14, 19. The plaintiff argues that either the evidence of Edgcomb's evolving and sometimes contradictory explanation for its conduct or the evidence concerning the employment offer to Thibodeau preclude entry of summary judgment. See

The plaintiff correctly notes that the Third Circuit recently adopted the "pretext-only" interpretation of Hicks by ruling that

if the plaintiff has pointed to evidence sufficient to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case.

Waldron v. SL Industries,

(3d Cir. 1995) (guoting Fuentes v. Perskie,

(3d Cir. 1994)); see Anderson v. Baxter Healthcare Corp.,

(7th

25 Based on its application of Hicks and interpretive decisions

of the First Circuit, the court finds that the record before it

cannot support a reasonable inference that the stated reason for

the plaintiff's demotion and termination was a pretext for

unlawful age discrimination. The evidence, even accorded an

indulgent gloss under Rule 56, contains nothing to indicate that

Edgcomb's conduct was either motivated by a discriminatory animus

or was accompanied by the slightest consciousness of the

plaintiff's age. At most the evidence supports an inference that

Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one, such as age, may rationally be drawn." (guotation omitted)). Thus, in at least some circuits ADEA plaintiffs are permitted to support an inference of intentional discrimination, and thus defeat a Rule 56 motion, merely by presenting a prima facie case along with competent evidence to discredit the defendant's stated reasons for its conduct. Having made this showing, the case proceeds to trial without any consideration of whether a reasonable jury actually could draw such an inference from the content and contours of the prima facie case and the evidence of pretext.

In contrast, the First Circuit continues to reguire plaintiffs seeking to infer discriminatory intent under Hicks to adduce sufficient evidence that would allow a reasonable jury to infer such animus. It is often not enough to present a prima facie case along with evidence of pretext and mendacity because, in this circuit, the courts further examine the substance of the evidence submitted to determine whether it contains facts which, taken a light most favorable to the plaintiff, would allow a reasonable jury to infer discriminatory animus. E.g., Woods,

. Given the existence of recent, relevant, and controlling decisions of the First Circuit, see supra, p. 23-26, the court declines to apply the more lenient, less case-specific standard, employed in other circuits.

26 Edgcomb management disbelieved the articulated rationale and,

instead, demoted and terminated the plaintiff for some other

reason it did not want to state publicly, such as personal

animosity or callous insensitivity to his dedicated service. The

plaintiff cannot evade summary judgment by presenting a genuine

factual dispute over whether his employer's true motives were, in

a generalized way, unscrupulous or even immoral because "ADEA

does not stop a company from discharging an employee for any

reason (fair or unfair) or for no reason, so long as the decision

to fire does not stem from the person's age." Mesnick,

(guoting Freeman v. Package Machinery,

, 1341

(1st Cir. 1988)).

The unreasonableness of an inference of age discrimination

is underscored by the plaintiff's own testimony, which is

properly considered as either a deposition or as an admission on

file under Rule 56(c). During his deposition the plaintiff

repeatedly stated that he was demoted and terminated because of

his age but, when pressed, conceded that this conclusion was

based on his subjective view of his job performance and

gualifications. Moreover, on at least three occasions the

plaintiff testified that his allegations of age discrimination

arose from the perceived absence of what he would consider to be

27 a logical explanation for Edgcomb's conduct. The following

excerpt typifies this reasoning:

My performance was fine. I didn't know of anything or nobody had told me, no one had told me anything about my not doing a good job in being able to handle the traffic department. I had no reason to believe, other than my age, that they would let me go.

Boucher Deposition, vol. IV at 122.7 By testifying that he

7Ihe following testimony supports Edgcomb's theory that the plaintiff grounds his allegations of discrimination on the absence of a better explanation:

Q: Now prior to the time [Gregory] Rallis came on board, did you believe that the hiring of Rallis was unnecessary?

A: Yes.

Q: And do I gather that is because you felt that it was your job and you should have had it?

A: I felt at the time that I was doing an excellent job for the company and that I was gualified to do the job and I couldn't see any reason other than my age, as to why they would bring [Rallis] on and let me go. It didn't make any sense.

Q: Anything else other than your subjective opinion?

A: No. •k -k -k -k

A: I don't know of any reason why Mr. Ward, any other reason why Mr. Ward would have let me go other than my age because I felt that I was doing a professional job as the traffic manager at Edgcomb in Nashua.

Q: Anything else?

A: No.

28 "can't think of any reason other than [his] age," id. , at 123,

the plaintiff has tacitly acknowledged that even his personal

inference of intentional age discrimination rests not on specific

facts or evidence but on "conclusory allegations" and

"unsupported speculation" -- a plainly improper basis upon which

to defeat summary judgment. E.g., Stratus Computer,

(guoting Goldman,

); Connell v. Bank of

Boston,

(1st Cir.), cert. denied,

(1991). See generally Anderson v. Liberty Lobby, 477 U.S.

Q: Let me be sure I understand. Other than your subjective belief that you were doing a good job or a professional job or whatever words you subjectively believed, is there any other reason that you can share with us that you would believe or contend that Mr. Ward either made a decision or participated in a decision to terminate you because of your age?

A: Not that I can recall at this point. •k -k -k -k

Q: [W]hat facts are you relying on to support your contention that Mr. Canastra either made the decision or participated in the decision to terminate you because of your age?

A: Only the fact that I was doing a good job for the company, my on-time performance was fine, the expenses were going down. I didn't know of any problems that he had relating to my performance. I was handling my responsibilities in an effective manner. That is all I can think of at this point.

Boucher Deposition, vol. IV at 102-103, 115-17.

29 at 256 (mere allegations insufficient to survive motion for

summary judgment) (citing Fed. R. Civ. P. 56(e)).

The prima facie case, evidence of pretext and the suspicion

of mendacity, even viewed collectively in a light most favorable

to the plaintiff, simply do not constitute "evidence sufficient

for the factfinder reasonably to conclude that the employer's

decision to [demote or] discharge . . . was wrongfully based on

age." Woods,

. The plaintiff, unable to satisfy a

necessary element of his ADEA claim, cannot proceed to trial and

the defendant is entitled to judgment as a matter of law on count

I.

COUNT TWO: FAIR LABOR STANDARDS ACT

The plaintiff also has alleged that Edgcomb violated the

FLSA by failing to pay him overtime for hours worked in excess of

forty per work week. See Amended Complaint at 5 34. Edgcomb

asserts that there is no dispute of fact that the plaintiff's

position is exempt from the overtime provisions of the act and,

as a result, that it is entitled to summary judgment on this

claim as well.

The FLSA reguires that employees engaged in interstate

commerce be compensated for each hour worked in excess of forty

during a given work week at a rate not less than one and one-half

30 times the regular rate at which the employee is paid.

(a)(1) (West Supp. 1995). However, the mandatory

overtime provisions do not apply to "any employee employed in a

bona fide executive, administrative, or professional capacity."

(a)(1). The employer bears the burden of

establishing that the plaintiff is an exempt employee. Reich v.

Newspapers of New England,

, 1070 (1st Cir. 1995).

In all cases "exemptions are to be narrowly construed against the

employers seeking to assert them and their application limited to

those establishments plainly and unmistakably within their terms

and spirit." Id. (guoting Arnold v. Ben Kanowskv, Inc.,

(1960) ) .

The court's consideration of whether an employee falls

within an exemption under § 213(a)(1) is controlled by a web of

regulations promulgated by the Secretary of Labor. See id.

(citing Chevron U.S.A. v. Natural Resources Defense Council,

(1984) (regulations given controlling weight

unless arbitrary, capricious, or contrary to statute)). Under

the regulations, a bona fide executive is

an employee who is compensated on a salary basis at a rate of not less than $250 per week . . . and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular

31 direction of the work of two or more other employees therein.

(f). According to the Secretary,

A determination of whether an employee has management as his primary duty must be based on all the facts of a particular case. The amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty . . . . Time alone . . . is not a sole test . . . . [Other] pertinent factors are relative importance of the managerial duties as compared with other types of duties, the freguency with which the employee exercises discretionary powers, [and] his relative freedom from supervision.

; see Secretary of Labor v. Papa Gino's of

America, Inc.,

(1989) (guoting Donovan v.

Burger King,

(1st Cir. 1982)).

A bona fide administrator is an employee who is compensated

not less than $250 per week and "whose primary duty consists of

the performance of work described in paragraph (a) of this

section, which includes work reguiring the exercise of discretion

and independent judgment."

(e)(2). Paragraph

(a) describes an employee

[w]hose primary duty consists of either:

(1) The performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers, or

(2) The performance of functions in the administration of a school system, or educational establishment or institution . . .

32

at § 541.2(a). For purposes of evaluating the applicability

of the administrator exemption, the court applies the same

definition of "primary duty" used in the context of the executive

exemption. Id. at § 541.206(b).

In its motion for summary judgment Edgcomb asserts that the

plaintiff is not entitled to overtime compensation because at all

relevant times he was employed as either an executive or an

administrator within the meaning of § 213(a)(1). Edgcomb argues

that the "plaintiff's testimony as set forth in his answers to

interrogatories confirms that he was an exempt employee."

Defendant's Response to Plaintiff's Opposition to Summary

Judgment at 16. In contrast, the plaintiff asserts that summary

judgment is foreclosed because his "duties, as testified to by

Edgcomb's witnesses, do not reguire the levels of discretion and

independent judgment contemplated by the [Department of Labor]

regulations." Plaintiff's Opposition to Summary Judgment at 60.

During its consideration of the age discrimination claim the

court recognized a genuine dispute of fact concerning the

plaintiff's job title and the scope of his responsibilities prior

to and following demotion and, in turn, concluded that such a

basic dispute arguably supported a suspicion of mendacity.

Notwithstanding the existence of the dispute, the court was able

to enter summary judgment on the ADEA claim because the plaintiff

33 was unable to adduce evidence beyond arrant speculation to

support a finding or inference of discriminatory animus, a

necessary element of his claim.

The Rule 56 motion on the FLSA claim is based on the same

ambiguous factual record and, thus, presents the same genuine

dispute of fact. This time, however, the factual dispute

necessarily forecloses summary judgment because the regulations

governing overtime exemption reguire a fact-intensive inguiry

into the purpose, nature, and function of the plaintiff's

position and his working relationship with superiors and

subordinates. The inguiry is further complicated by the fact

that the plaintiff's job title and responsibilities apparently

changed in 1992 with his demotion, the hiring of Rallis, and the

claimed reorganization of the traffic department. Accordingly,

the motion for summary judgment is denied with respect to count

II.

Conclusion

The defendant's motion for summary judgment (document no.

42) is granted with respect to the plaintiff's age discrimination

claim. The defendant's motion for summary judgment is denied

with respect to the plaintiff's Fair Labor Standards Act claim.

The court's ruling with respect to the ADEA claim moots the

plaintiff's motion in limine to exclude evidence of events

34 occuring after the plaintiff's termination (document no. 55), the

defendant's motion in limine to exclude evidence or argument that

the hiring of Greg Rallis or the demotion of the plaintiff was

discriminatory (document no. 57), and the defendant's motion in

limine to exclude evidence or argument relating to the layoff of

Charles Barry (document no. 58) .

Jury selection will proceed as scheduled on November 21,

1995.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge October 24, 1995

cc: James W. Donchess, Esguire Thomas B.S. Quarles Jr., Esguire Allan M. Dabrow, Esguire

35