USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit











No. 97-2015



                        DANIEL F. BRENNAN,



                      Plaintiff, Appellant,



                                v.



               GTE GOVERNMENT SYSTEMS CORPORATION,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

           Coffin and Bownes, Senior Circuit Judges.

                                

                                





     Paul M. Stein with whom Thomas O. Moriarty was on brief for

appellant.

     Arthur G. Telegen with whom Michael L. Rosen and Tracey E.

Spruce were on brief for appellee.











July 16, 1998







                                

                                



     COFFIN, Senior Circuit Judge.  Daniel Brennan's twenty-year-

long employment with GTE Government Systems Corporation ("GTE")

ended in March 1993 when he was terminated as part of a reduction

in force.  Brennan, who was fifty years old at the time of his

termination, brought suit claiming that he was discharged as a

result of age discrimination in violation of the Age Discrimination

in Employment Act, 29 U.S.C.  621-634 ("ADEA"), and Mass. Gen.

Laws ch. 151B,  4 ("ch. 151B").  He also alleged a state law

misrepresentation claim, asserting that GTE fraudulently and

negligently misrepresented its policies and procedures for laying

off employees.  The district court dismissed the state claim upon

summary judgment and granted judgment as a matter of law at the

close of evidence.  Brennan challenges the rulings, and contests

the court's exclusion of certain evidence.  We find error in one of

the evidentiary rulings relevant to establishment of a prima facie

case.  We also conclude that there was sufficient evidence to

create jury issues on pretext and age discrimination.  We therefore

reverse the directed verdicts for GTE on the federal and state age

discrimination claims but affirm the dismissal of the

misrepresentation claim.

I.  Factual Background

     Brennan began working at GTE in 1973 as a senior technician

and later held a series of different engineering positions.  In

1986, he accepted a position as an integration and test engineer in

the Mobile Subscriber Equipment System ("MSE") division.  Created

in 1986, the MSE division developed in response to a contract

between GTE and the United States Army for a comprehensive

communications system.  In mid 1992, the division was reorganized

and Brennan was assigned to work in the Circuit Switching and

Systems Control department, headed by John Van Dolman.  His job as

an integration and test engineer involved designing and overseeing

the MSE testing process.  

     The record contains performance appraisals extending from 1976

to June 1992 consistently describing Brennan as meeting job

expectations.  In late 1992, GTE assigned Brennan to fill in for

Carl Bredberg, a systems engineer whose job was to troubleshoot MSE

field problems, after Bredberg suffered a heart attack.     

     In September 1992, MSE engineering department managers Van

Dolman and Kevin Flynn each prepared "Work Force Analysis Forms" in

anticipation of a reduction in force planned for November 2, 1992. 

These forms set forth positions to be eliminated, employees

performing those functions, and the names of individuals

recommended for termination.  Van Dolman identified "System

Integration and Test Procedure Writer" as the function to be

eliminated and Brennan as the only employee for termination,

stating that Brennan lacked the skill mix to do the remaining work. 

The function eliminated by Flynn was "Senior System Engineer."  Two

persons, each sixty-three years old, out of nine employees in that

position were identified for layoff. 

     GTE, however, did not go forward with the planned reduction in

force.  Instead, in December 1992, it notified employees of its

need to reduce staff as a result of general downsizing in the

defense industry, and offered a voluntary separation incentive

program and an enhanced early retirement program as "first step[s]

in realigning [GTE] staffing levels."  GTE announced that the

programs were entirely voluntary, but would be offered only from

January 11, 1993 until February 5, 1993.  Under the early

retirement program, available to all employees fifty and older,

Brennan could retire with pension and medical benefits that would

otherwise not be available to him until January 1, 1996.  Brennan,

however, declined the offered program, believing that his seniority

would prevent him from being selected for layoff.

     On December 7, 1992, Allen Sherwood, manager of the MSE

division at that time, developed a "rating and ranking" of

employees in the engineering division in anticipation of a layoff. 

Brennan was listed as the lowest ranking of thirty-three employees

at grade levels six and seven.  The rating and ranking included

three categories of grades (3-5, 6-7, 8-11), and then listed the

employees who, out of a total of ninety-six, ranked among the

bottom thirty percent of all employees.  On this list, Brennan

ranked ninety-third, or fourth from the lowest.  Other terminated

employees had similar, although not quite as low, rankings as

Brennan.  The ages of employees listed in the rating and ranking

were admitted as evidence.  A high number of fifty and older

employees were ranked in the bottom thirty percent.

     On February 26, 1993, Van Dolman prepared another Work

Analysis Form, identifying "System Integration Testing and Test

Procedure Writing" as the function to be eliminated.  He listed

fourteen persons in this position prior to the reduction in force,

out of which five were proposed for separation.  Brennan, who was

then fifty, along with four others (aged thirty-one, thirty-four,

fifty-seven and fifty-nine) were identified as "not possess[ing]

the skills to perform the remaining work available."  The form also

set forth the specific skills these workers lacked, namely,

"detailed knowledge as required to troubleshoot and resolve System

level problems."  Brennan, John Hartgrove (fifty-seven), and John

Hurley (thirty-seven), were also described as unable to perform

"design related Systems work."  The listed reasons for termination

were "wrong skill mix to do work remaining" and "lowest performance

rating."  Under "additional comments" was written, "rating and

ranking verifies above decisions."

     Two days later, Van Dolman completed a Work Force Analysis

Form to reduce another section of the MSE division, System Design

Activities.  Of the four persons he listed as working in that

section, he selected the only over fifty employee, Al Ricard, for

termination.  The remaining three employees, all retained, were in

their late twenties or early thirties.  Van Dolman described Ricard

as unable to "perform complex system engineering level design

tasks."  Reasons for termination and additional comments

referencing the rating and ranking were the same as those listed

for Brennan.  

     In late March 1993, Brennan was informed that he would be

terminated on April 2, 1993.  Brennan testified that when he

approached Van Dolman about the decision, Van Dolman stated, "I was

told it wouldn't matter to you guys."  Brennan believed "you guys"

referred to the fifty and older employees, and "wouldn't matter"

referred to the retirement packages Van Dolman believed to be

available to employees aged fifty and older.  Van Dolman testified

that he could have made the statement, but did not recall doing so. 

Brennan also testified that during his employment with GTE, he and

other older employees were not given new computers or new

assignments, which were instead designated for younger employees.

     The fifty and older employees discharged as a result of the

Work Force Analysis Forms, including Brennan, were the only fifty

and older employees remaining in the two MSE departments subject to

layoff.  Other persons in this age group who had worked in these

departments chose voluntary separation or early retirement before

the layoffs.               II.  The Age Discrimination Claims

     The central aspect of our review involves Brennan's appeal

from directed verdict on his age discrimination claims.  The

district court found that Brennan had not established the required

prima facie case, had not shown that GTE's reason for discharging

him was pretextual, and did not present sufficient evidence to

support a finding of discriminatory animus.  We review the grant of

a motion for judgment as a matter of law de novo, taking the facts

most favorable to Brennan.  See Russo v. Baxter Healthcare Corp.,

1998 WL 125022, at *1 (1st Cir. March 25, 1998).  Brennan must

provide "'more than a scintilla of evidence and may not rely on

conjecture or speculation' to justify the submission of an issue to

the jury."  Id. (quoting Katz v. City Metal Co., 87 F.3d 26, 28

(1st Cir. 1996)).  "The court, however, must 'not consider the

credibility of the witnesses, resolve the conflicts in testimony,

or evaluate the weight of the evidence.'"  Andrade v. Jamestown

Housing Authority, 82 F.3d 1179, 1186 (1st Cir. 1996) (citing

Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)).  A verdict

may be directed only if, applying these standards, the evidence

does not permit a reasonable jury to find in favor of Brennan.  Seeid.   

     As part of his age discrimination case, Brennan alleged

evidentiary errors, which we review for abuse of discretion.  SeeKelley v. Airborne Freight Corp., 1998 WL 150958, at *8 (1st Cir.

April 7, 1998).  We will not upset a verdict for "any error or

defect in the proceeding which does not affect the substantial

rights of the parties."  Id. (quoting Fed. R. Civ. P. 61).

     To review the court's determinations, we begin by setting

forth the burden shifting framework of the controlling

discrimination law.  We note that until the last step in the

framework, discussed infra, Massachusetts law parallels federal

law.  See Kelley, 1998 WL 150958, at *11. 

A.   The burden shifting framework 

     The plaintiff's initial burden to establish a prima facie case

of discrimination is "not onerous."  Sanchez v. Puerto Rico Oil

Co., 37 F.3d 712, 719 (1st Cir. 1994) (quoting Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).  "All that

is needed is the production of admissible evidence which, if

uncontradicted, would justify a legal conclusion of

discrimination."  Id.  In a reduction in force case like this one,

a plaintiff must demonstrate:  (1) he was at least forty years of

age; (2) he met the employer's legitimate job performance

expectations; (3) he experienced adverse employment action; and (4)

his employer did not treat age neutrally or younger persons were

retained in the same position.  See Hidalgo v. Overseas Condado

Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997) (quoting

Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st

Cir. 1993)).  Once the plaintiff establishes the prima facie

requirements, a rebuttable presumption that the employer engaged in

intentional age based discrimination attaches.  See Woodman v.

Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995). 

     The burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the decision.  See Thomasv. Sears, Roebuck & Co., 1998 WL 219793, at *1 (1st Cir. May 8,

1998).  If the employer meets its burden, the presumption of

discrimination vanishes.  See Woodman, 51 F.3d at 1091.  

     At this point, although the burden returns to the plaintiff in

both instances, state and federal law no longer parallel each

other.  Under the ADEA, we inquire whether the evidence as a whole

would permit a reasonable factfinder to conclude that the proffered

reason was pretextual and the true reason was an age-based animus. 

See Hidalgo, 120 F.3d at 335 (quoting St. Mary's Honor Ctr. v.Hicks, 509 U.S. 502, 515 (1993)).  Under ch. 151B plaintiff's

burden may be limited to demonstrating pretext, without a required

showing of discriminatory animus.  See Kelley, 1998 WL 150958, at

*11; McMillan v. Massachusetts Soc'y for the Prevention of Cruelty

to Animals, 140 F.3d 288, 298 & n. 4 (1st Cir. 1998); Blare v.

Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-45,

646 N.E.2d 111 (1995).  The distinction does not matter in this

case, however, as we find that plaintiff's evidence rises to the

level required by the ADEA to overcome a directed verdict. 

B.   The prima facie case

     It is undisputed that, as a fifty-year-old man who was

terminated by GTE, Brennan meets the first and third prongs of his

prima facie case.  As to the second, Brennan has submitted

performance reviews dating back to 1976 and running through June

1992.  He received acceptable rankings in virtually every

appraisal, although he only occasionally received the highest

ranking.  For example, in the most recent ranking, covering the

period of January to June 1992, he was rated "met expectations" for

all categories of work, except in the area of "control/follow-up"

in which he was rated "exceeded expectations."  Out of five

possible overall performance ratings, he was given a three, which

is described as "Employee meets all individual objectives as

established in the performance plan, performs all job

responsibilities to meet the requirements of the job and displays

a satisfactory degree of competence in the skills required of the

job."  And, under "comments," the review  stated, "Dan has the

ability to quickly become technically competent in tasks assigned

to him and accomplish the task in a timely manner to meet

schedules" and "Dan is very supportive to the changing priorities

required to support the overall mission."

     GTE strives to characterize the "legitimate job expectations"

standard as covering what it maintains to be the new, downsized

requirements expected of the future MSE division.  Such an

interpretation would render irrelevant the remaining burden

shifting requirements (the employer's articulation of a legitimate

reason would be incorporated, de facto, into the job expectation

standard, and the employee's obligation to demonstrate pretext

would have to be fought at the prima facie stage), and would be an

"onerous" endeavor, beyond the confines of a prima facie case.  We

think the gauge therefore should be whether the employee has a

record of performing acceptably and meeting the demands of his job. 

Brennan's evidence is more than sufficient to meet the second prong

of the prima facie case.  

     It was the fourth prong, lack of age-neutral decisionmaking,

where the district court found Brennan's evidence inadequate.  Our

analysis demands that we consider whether the district court

properly excluded evidence as to other employees.  "[L]ack of

neutrality may be manifested either by a facially discriminatory

policy or by a policy which, though age-neutral on its face, has

the effect of discriminating against older persons, say, by leading

inexorably to the retention of younger employees while similarly

situated older employees are given their walking papers."  Vega v.

Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993).

     A judge should not exclude relevant evidence, unless its

probative value is substantially outweighed by the danger of unfair

prejudice.  See McMillan, 140 F.3d at 300 (citing Fed. R. Evid.

403).  Evidence that other terminated fifty and older employees had

good employment records, skills in certain areas of the job, and

superior experience to retained employees is relevant to

determining whether a policy has the effect of discriminating

against older persons.  Among the evidence offered by Brennan but

excluded by the district court was a comparison between work

performed by Tessmer, who was fifty-nine, and a thirty-year-old

employee who was retained.  Brennan also proffered evidence

comparing the work record of Ricard, who was fifty-seven, rated at

a level of three, and discharged, with that of Craig Poole, who was

twenty-eight, given the same rating, trained by Ricard, and

retained.  This evidence was also excluded.  

     While "proof of a general atmosphere of discrimination is not

the equivalent of proof of discrimination against an individual,"

it "may add 'color' to an employer's decisionmaking process."  Ruizv. Posadas de San Juan Assoc., 124 F.3d 243, 249 (1st Cir. 1997). 

Certainly comparative evidence in combination with data showing a

disproportionate number of terminated older employees is probative

of age discrimination.  See Goldman, 985 F.2d at 1119 (excluding

numerical evidence because no comparative evidence was introduced). 

We are not faced here with determining whether this evidence proves

age discriminatory animus, but rather are concerned only with

whether this evidence indicates lack of neutrality.  As we have

repeatedly emphasized, this is not a burdensome standard.  SeeWoodman, 51 F.3d at 1091.  

     Combined with the raw data indicating the ages of the persons

listed in the rating and ranking and terminated in the reduction in

force, the evidence regarding other employees and testimony by

Brennan indicating that the company gave preference to younger

employees in distributing computers demonstrate "lack of

neutrality" sufficient to meet Brennan's burden of establishing a

prima facie case.

C.   Establishing pretext and discriminatory animus

     It is undisputed that GTE has met its burden of production in

maintaining that it fired Brennan because MSE testing work was

diminishing and Brennan was among the lowest ranked employees

performing that type of work.  Van Dolman testified that the MSE

workload, and specifically the number of plans and procedures

written and tests conducted, was diminishing.  No longer a new

system, the MSE required less testing.  David Orlando and David

Loomis, both GTE engineering supervisors, confirmed this.  And

various GTE personnel testified that while Brennan was a good test

writer, he lacked the troubleshooting skills and technical

knowledge about the system that GTE most needed given the

downsizing of new MSE projects.

     Brennan, in turn, must satisfy his burden of showing pretext,

and under federal law, discriminatory animus.  He may rely on the

same evidence to prove both pretext and discrimination, as long as

the evidence rises to the level of meeting both requirements.  See 

Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995).  He may also rely on

the evidence pertaining to his prima facie.  See Burdine, 450 U.S.

at 255 n.10.  Brennan offers the following evidence to meet the

final hurdle:  (1) his experience and performance reviews; (2)

GTE's failure to use standard procedure in creating the Work Force

Analysis Forms; (3) absence of a projected work analysis by GTE at

the time the Work Force Analysis Forms were prepared; (4) MSE

engineering work available after the layoff; (5) disproportionately

age-weighted layoffs; (6) favoritism by GTE toward younger

engineers; and (7) evidence showing that older qualified employees

were discharged and younger, less or equally qualified engineers

were retained.  We now review these.

     The performance reviews tell us that Brennan was a competent

employee who consistently performed within the expected job range,

but did not excel.  Again, we note that in June 1992 his review

described him as having "the ability to become technically

competent in tasks assigned to him."  A reasonable jury could find

that this belies GTE's claim that he lacked the technical

competence to troubleshoot problems arising in the MSE division,

or, at least, that in June 1992 GTE believed that Brennan was

capable of rapidly gaining the technical knowledge required by the

company.  Support for this view can also be found in GTE's asking

Brennan in late 1992 to fill in for Bredberg, whose work primarily

involved troubleshooting system problems.  

     We add to this the evidence presented by Brennan that GTE did

not use standard procedure in completing the Work Force Analysis

Forms.  Deviation from established policy or practice may be 

evidence of pretext.  See Lattimore v. Polaroid Corp., 99 F.3d 456,

466-67 (1st Cir. 1996).  Robert Hetzel, Director of Human Services

at GTE in 1993, testified to the order in which the forms should be

completed: identify the function to be eliminated within a

particular department and the reason, list the employees performing

the function and evaluate them, identify the person or persons who

do not have the skills necessary to do the remaining work, and then

identify individuals for layoff, using the criteria, "wrong skill

mix," "poor performance," "lowest performance rating," and "lowest

seniority."  GTE's seniority policy requires that, "where ability

is comparable, the senior employee will be retained."  

     Van Dolman's testimony revealed that, instead of following

this procedure, he completed the March 1993 Work Force Analysis

Forms by simply filling in names of persons to be laid off that

were provided to him by Sherwood from the rating and ranking list

created in December 1992.  As to the rating and ranking, Van Dolman

first provided Sherwood with a list, not in the record, ranking

persons in his department.  From this list and those put together

by other engineering department heads, Sherwood compiled a rating

and ranking of all engineering employees.  Sherwood explained that

he arrived at this list by consulting with department heads.  He

described the "factors [that] came up in the discussions leading to

the merging of the three grades into the [lowest thirty percent]

column" as "principally value, in terms of doing the residual MSE,

and a lot of work that was coming."  It is clear that seniority was

not considered in this ranking.  Although thin, this evidence that

standard procedure was not followed is directly relevant to

Brennan's burden of demonstrating pretext. 

     The record also raises questions about whether the layoffs

were needed.  Brennan points to the two Work Force Analysis Forms

completed in September 1992 by Van Dolman and Flynn, in which he

was the only person slated for layoff in his group and two persons

were slated for layoff in Flynn's group.  Of the nine senior system

engineers in Flynn's group in 1992, only four remained in 1993. 

This reduction, in combination with the number of fifty or older

employees who took early retirement, significantly reduced GTE's

work force -- by a greater number, in fact, than targeted in the

September 1992 Work Force Analysis Forms.  

     As to Brennan's contention that the company lacked knowledge

of the projected work load, Sherwood testified that at the time he

created the rating and ranking he did not know how many test

writing positions remained for the future MSE work, and Flynn

testified that he did not remember any discussion during the

development of the rating and ranking concerning the specific work

remaining in the MSE.  Brennan suggests from this that the

company's subsequent contention, that it needed to terminate test

writers, was not true, and simply a cover for its intention to lay

him and other older employees off through a constructive device of

a rating and ranking.  While certainly limited, we cannot say that,

in combination with the remaining evidence, this testimony could

not have helped to lead a reasonable jury to suspect that the

reasons articulated by GTE for downsizing its workforce were not

true. 

     Brennan also introduced evidence that GTE hired persons for

engineering positions and that MSE work was available after his

layoff.  Such evidence, in undercutting the employer's proffered

reason for reducing the workforce, is probative of pretext.  SeeMartin v. Envelope Division of Westvaco Corp., 850 F. Supp. 83, 91

(D. Mass. 1994).  While GTE presented plentiful testimony that MSE

testing work was on the decline, we think that a factfinder could

reasonably conclude, looking at the advertisements for new

engineers and the number of persons hired, together with other

evidence, that the reductions were not in fact needed.

     Finally, Brennan points to evidence of discriminatory animus

based on age: younger engineers received preference in the

distribution of new computers and new assignments, a high

proportion of older persons were discharged and ranked low in the

rating and ranking, and Van Dolman's statement, "I was told it

wouldn't matter to you guys."  After examining all the evidence,

the jury might have concluded, as did Hetzel, that the

disproportionately high number of older persons ranked low and

discharged was not indicative of discrimination.  But this

determination is rightly within the jury's province, not the

court's.  And although Van Dolman testified that he could not

recall making the statement, supra, neither did he deny making it. 

In context, his testimony could leave a reasonable jury to conclude

that Van Dolman expected Brennan to receive full benefits and went

along with the layoffs with that assurance in mind.

     We find therefore that Brennan has demonstrated sufficient

evidence of pretext and discriminatory age animus to withstand a

directed verdict.  His age discrimination claims should proceed

before a jury.

               III.  The Misrepresentation Claim

     Our review is de novo to determine whether the jury, drawing

all inferences in Brennan's favor, could reasonably have rendered

a verdict for him on this issue.  See Coastal Fuels of Puerto Rico,

Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 196 (1st Cir.

1996); Fed. R. Civ. P. 56(c).

     Brennan argues that he was misled by fraudulent and negligent

misrepresentation -- specifically, GTE's seniority policy -- to

decline participation in the Early Retirement Program.  He alleges

that GTE had a duty to disclose to him that it would use a ranking

system rather than performance reviews to determine who would be

terminated, and that he suffered economic loss because he relied on

the performance reviews to gauge the likelihood that he would be

laid off from his job.

     We can dispose of this issue quickly.  Under Massachusetts

law, claims of fraudulent and negligent misrepresentation require

a false representation of material fact, knowledge of falsity or

carelessness on the part of the defendant, and a reasonable

reliance by the plaintiff.  See Knapp Shoes, Inc. v. Sylvania Shoe

Mfg. Corp., 72 F.3d 190, 199-200 (1st Cir. 1995); see also Fox v.

F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 587, 672 N.E.2d 547,

551 (1996) (requiring "justifiable" reliance by the plaintiff). 

Brennan offers no evidence that GTE represented to him that it

would only use the performance evaluations in ranking employees and

determining whether they were "comparable" for the purpose of

invoking the company's seniority policy.  Even if a jury could

conclude that GTE made such a representation, Brennan's reliance on

that fact as security that he would not be laid off is not

reasonable or justifiable.  Brennan was fairly consistently ranked

a three out of five.  He presents no evidence that he knew the

number of persons the company would terminate (he offers the

opposite in support of his pretext argument), the levels at which

other persons were ranked, or the seniority other employees had in

comparison to him.  It may be that GTE's layoff would require that

it terminate all level three employees and some level two

employees.  In that case, Brennan's seniority would not have

impacted his retention.  We therefore affirm the district court's

grant of summary judgment on this claim.

                        IV.  Conclusion

     On the record before us, we find that Brennan has introduced

sufficient evidence to submit his age discrimination claims to the

jury, but insufficient evidence on his misrepresentation claim.  We

emphasize again that we make no credibility judgments and do not

weigh the evidence; our analysis has been restricted to determining

whether Brennan presented enough evidence to proceed before the

jury.  We remand the age discrimination claims to the district

court.

     Affirmed in part and reversed in part.  Costs to appellant.