April 14, 1993 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2156
DAVID FRANKINA,
Plaintiff, Appellant,
v.
FIRST NATIONAL BANK OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Denise M. Leydon with whom Weston, Patrick, Willard & Redding was
on brief for appellant. Richard P. Ward with whom Robert B. Gordon and Ropes & Gray were
on brief for appellee.
Per Curiam. The First National Bank of Boston ("Bank") Per Curiam.
terminated the employment of appellant David Frankina pursuant to
a reduction in force. Frankina sued the Bank, asserting claims
for age discrimination, in violation of the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. 621-34, and the Massachu-
setts Fair Employment Practices Act, Mass. Gen. L. ch. 151B;
breach of an alleged lifetime-employment contract; and breach of
an alleged preferential-rehiring agreement. The district court
granted summary judgment. We affirm.
I
BACKGROUND
We relate the facts in the light most favorable to
appellant. See Newport Plaza Assoc. v. Durfee Attleboro Bank,
F.2d , (1st Cir. 1993), No. 92-1444, slip op. at 6
(1st Cir. Feb. 16, 1993). In 1962, Herb Ericson, a Bank person-
nel officer, hired David Frankina as a Security-Cage Clerk.
Ericson represented that Frankina would have a job for life
unless he committed a criminal act against the Bank. Ericson
also told Frankina that the Bank had never laid off an employee
in its 200-year history. Throughout his twenty-seven year tenure
with the Bank, Frankina became aware of no employee who was
terminated except for criminal conduct.
In 1989, the Bank launched a large-scale reduction in
its work force due to mounting losses in its Treasury and Banking
Services operation. The Bank completely reorganized the Banking
Services component of the department, reconfiguring approximately
252 operational functions into approximately 135 functions. As a
result, 119 positions were eliminated. Thomas Keane, Senior
Operations Manager of the Capital Asset Services Department,
determined that it was necessary to eliminate two of the seven
positions in the Control Unit to eliminate functional redundancy.
After reviewing recent employee performance evalua-
tions, and based on his personal knowledge of employee work
habits, Keane selected two Control Unit employees for dismissal:
a thirty-five year old, and Frankina, then forty-seven. Keane
concluded that the thirty-five year old lacked the necessary
skills and had the least experience, and that Frankina was the
least qualified employee in the Unit. Keane found that Frankina
had relatively poor work habits, experienced difficulty in
completing assigned tasks, and was least well-suited to perform
the work duties in the reconfigured organization. Four of the
five Control Unit employees who were retained were younger than
Frankina.1
On May 19, 1989, Keane and Gerard Demone, Senior Human
Resources Manager, met with Frankina to inform him of the layoff,
describe the severance benefits, and offer professional job-
search assistance. Demone told Frankina that job applications
from laid-off employees would be given preferential treatment in
1One retained employee was forty-nine years old at the time of the reorganization, two were forty-one, one was thirty-seven, and one was thirty-one. Frankina suggests that the forty-nine year old was not similarly situated because he served in a managerial capacity.
the Bank's hiring process. Frankina subsequently applied for
more than fifty positions with the Bank.
II
DISCUSSION
A virtual "carbon copy" suit was brought by another
former Bank employee in Goldman v. First Nat'l Bank of Boston,
F.2d (1st Cir. 1993), No. 92-1773 (1st Cir. Feb. 12,
1993). Thus, we rely extensively on our Goldman analysis. In
Goldman, we defined the applicable summary judgment standard as
follows:
We review a grant of summary judgment de
novo, employing the same criteria incumbent
upon the district court in the first in- stance. Pedraza v. Shell Oil Co., 942 F.2d
48, 50 (1st Cir. 1991), cert. denied,
U.S. , 112 S. Ct. 993 (1992). Summary judgment is appropriate where the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, viewed in the light most favor- able to the nonmoving party, reveals no genu- ine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Canal Ins. Co. v. Benner, 980 F.2d 23, 25
(1st Cir. 1992); see also Mesnick v. General
Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991),
cert. denied, U.S. , 112 S. Ct. 2965
(1992). The nonmoving party "may not rest upon the mere allegations or denials of the . . . pleadings, but . . . must set forth specific facts showing that there is a genu- ine issue for trial." Fed. R. Civ. P. 56(e). See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). There is no trialworthy issue unless there is enough competent evi- dence to enable a finding favorable to the nonmoving party. Id. at 249 (citing First
Nat'l Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 288-89 (1968)). Moreover, "[e]ven in 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 allega- tions, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
Goldman, slip op. at 4-5.
A. Age Discrimination Claims
Frankina maintains that he adduced enough evidence to
generate a trialworthy issue as to whether the termination of his
employment was motivated by age discrimination, and argues that
the district court impermissibly weighed the competing evidence
rather than viewing it in the light most favorable to him.
1. The Burden-Shifting Paradigm
The plaintiff bears the ultimate burden of proving that
his age was the determinative factor in his discharge. Mesnick
v. General Electric Co., 950 F.2d 816, 823 (1st Cir. 1991), cert.
denied, U.S. , 112 S. Ct. 2965 (1992). "Absent direct
evidence of age discrimination, the familiar burden-shifting
framework established in [McDonnell Douglas] comes into play."
Goldman, slip op. at 6. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). As we explained in Goldman:
First, the plaintiff must make a prima facie showing of discrimination; that is, [Frank- ina] must demonstrate that he (1) was at least forty years of age, (2) met the employ- er's legitimate job performance expectations, (3) experienced adverse employment action, and (4) was replaced by a person with roughly equivalent job qualifications. A plaintiff whose employment was terminated in the course
of a reduction in force need not demonstrate that he was replaced, but may show that the
employer did not treat age neutrally or that younger persons were retained in the same position.
Establishment of the prima facie case creates a presumption that the employer un- lawfully discriminated against the employee, and the burden of production shifts to the defendant-employer to articulate some legiti- mate, nondiscriminatory reason for the ter- mination. The burden of persuasion remains with the plaintiff-employee at all times.
The presumption of unlawful age discrim- ination generated by the plaintiff-employee's prima facie showing dissipates, however, provided the employer sustains its burden of production; the plaintiff-employee must then demonstrate that the proffered reason for the adverse employment action was simply a pre- text for age discrimination. The plaintiff must do more than cast doubt on the employ- er's justification for the challenged action; there must be a sufficient showing that dis- criminatory animus motivated the action. Direct or indirect evidence of discriminatory motive may do, but the evidence as a whole must be sufficient for a reasonable fact- finder to infer that the employer's decision was motivated by age animus.
Under First Circuit caselaw, the plain- tiff-employee must adduce minimally suffi- cient evidence of pretext and discriminatory
animus. A showing that the employer's justi- fication was not the actual motive may be enough if the facts and circumstances raise a reasonable inference of age discrimination. Nevertheless, the plaintiff-employee cannot avert summary judgment if the record is de- void of [both] direct and circumstantial
evidence of discriminatory animus on the part of the employer.
Goldman, slip op. at 6-8 (internal citations and quotation marks
omitted).
It is not disputed that Frankina made out a prima facie
age discrimination claim, nor that the Bank articulated a nondis-
criminatory motive for Frankina's dismissal, i.e., that economic
considerations necessitated a reduction in force and Frankina was
the "least qualified employee" in his unit. The dispute on
appeal centers on the third stage of the McDonnell Douglas
analysis. The district court acknowledged that Frankina present-
ed some evidence to counter the Bank's characterization of him as
a poor performer, but ruled that Frankina presented insufficient
evidence of pretext and discriminatory animus. Accordingly, the
Bank was awarded summary judgment on Frankina's state and federal
age-discrimination claims.2
2The complaint alleged parallel claims under the ADEA and its Massachusetts counterpart, Mass. Gen. L. ch. 151B. On appeal, Frankina asserts for the first time that Massachusetts applies a less onerous standard of proof to claims brought under the Massachusetts statute than this court applies to ADEA claims, see infra note 4, and that his state claim therefore must be
addressed separately. However, Frankina did not distinguish these claims in his opposition to summary judgment, and the district court analyzed them collectively, noting only that "courts apply the same analysis to state and federal discrimina- tion claims." We decline to address this newfound claim, as "theories not raised squarely in the district court cannot be surfaced for the first time on appeal." McCoy v. Massachusetts
Inst. of Technology, 950 F.2d 13, 22 (1st Cir. 1991), cert.
denied, U.S. , 112 S. Ct. 1939 (1992); see also Poliquin
v. Garden Way, Inc., F.2d (1st Cir. 1993), Nos. 92-1115,
92-1116, slip op. at 8 (1st Cir. Mar. 24, 1993) (explaining that in the "winnowing process" of litigation, the raise-or-waive rule enables courts to "narrow what remains to be decided[;] [i]f lawyers could pursue on appeal issues not properly raised below, there would be little incentive to get it right the first time and no end of retrials"). Although the raise-or-waive rule may be relaxed in an exceptional case when a miscarriage of justice would otherwise result, see Johnston v. Holiday Inns, Inc., 595
F.2d 890, 894 (1st Cir. 1979) (quoting Dobb v. Baker, 505 F.2d
1041, 1044 (1st Cir. 1974)), our holding that Frankina failed to adduce sufficient evidence of pretext, see infra Part II.A.2,
would make summary judgment proper even under the less onerous standard of proof urged by Frankina.
2. Evidence of Pretext
"In assessing pretext, [our] 'focus must be on the
perception of the decisionmaker,' that is, whether the employer
believed its stated reason to be credible." Mesnick, 950 F.2d at
824 (quoting Gray v. New England Tel. & Tel. Co., 792 F.2d 251,
256 (1st Cir. 1986)) (emphasis added). Frankina does not dispute
that economic considerations necessitated a reduction in force,
but argues that he produced sufficient evidence to rebut the
Bank's contention that he was the least qualified employee in his
unit.
Frankina produced ample evidence that the Bank did not
consider his work performance unsatisfactory in absolute terms:
he was given merit salary increases on a regular basis throughout
his tenure; none of his performance evaluations indicated that
his job performance was unacceptable; his overall performance
rating in 1986 was "outstanding," the highest rating available;
and he received no warnings relating to his work performance.
The Bank's justification for Frankina's discharge, however, was
not that his performance was unsatisfactory in an absolute sense,
but that he was the least qualified employee in the Control Unit.
Thus, refutation of the Bank's proffered justification required
evidence permitting a trier of fact reasonably to conclude that
Frankina's abilities and qualifications were equal or superior to
employees who were retained. Goldman, slip op. at 10. As
Frankina made no such evidentiary showing in the district court,
he failed to demonstrate a trialworthy issue.3
3. Evidence of Age Animus
"Evidence of age animus need not be of the 'smoking gun
variety,' but the totality of the circumstances must permit a
reasonable inference that the employer's justification for the
challenged action was a pretext for age discrimination." Gold-
man, slip op. at 11 (quoting Connell v. Bank of Boston, 924 F.2d
1169, 1175 (1st Cir.), cert. denied, U.S. , 111 S. Ct.
2828 (1991)). Frankina contends that an inference of dis-
criminatory animus on the part of the Bank arises from the
following evidence: Frankina and six other former Bank employees
dismissed pursuant to the reduction in force were the oldest
employees and had the longest service records in their respective
units; the termination of older, more costly employees would
optimize the cost reductions achieved through the reduction in
force; of the 119 terminated employees, 41% were over forty years
of age, but only 24% of those subsequently rehired were over
forty; under a new retirement plan introduced in 1989, which
required the Bank annually to contribute a percentage of each
employee's salary to a "Cash Balance" account, the Bank deposited
a decreasing percentage of salary to an employee's account as the
employee reached the upper service brackets; and the Bank dis-
3Although Frankina argues on appeal that his performance evaluations in 1987 and 1988 were equivalent to those of a younger colleague who was retained, he waived the argument by failing to raise it below. See supra note 2.
banded the "Quarter Century Club," a Bank-sponsored social
organization for employees with twenty-five years or more of
service.
We considered the identical evidence in Goldman, and
concluded that:
at best the record reveals that a small num- ber of those discharged were among the older employees in their respective units, that the Bank implemented a new pension plan which has in no measure been shown to have been disad- vantageous to older employees, and that the Bank stopped funding the Quarter Century Club. The gap between this evidence and an inference of age discrimination could only be bridged by impermissible inference.
Id. at 15-16. We reach the same conclusion here, based on the
grounds detailed in Goldman. See id. at 11-16. As the evidence
presented in the district court was insufficient to enable a
factfinder reasonably to conclude that the articulated reason for
Frankina's termination was pretextual or that his termination was
motivated by age animus, we affirm the grant of summary judgment
on the age discrimination claims.4
B. Breach of Lifetime Employment Contract
Next, Frankina argues that summary judgment was improp-
er on his claim for breach of a lifetime employment contract.
The district court found that Frankina failed to generate a
4Frankina argues that our cases place a more onerous burden on an ADEA plaintiff than that envisioned by the Supreme Court in McDonnell Douglas and Texas Dep't of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981). As we rejected this argument in
Goldman, we do not discuss it here. See Goldman, slip op. at 8
n.4.
trialworthy issue as to whether the person who hired Frankina
possessed actual or apparent authority to bind the Bank to a
lifetime employment contract. We agree.
Frankina maintains that Bank personnel officer Herb
Ericson offered him lifetime employment by representing that the
Bank had never laid off employees and that Frankina would have a
job for life unless he committed a criminal act against the Bank.
Moreover, he argues, the concept of lifetime employment was
reinforced throughout his tenure at the Bank as he never knew of
an employee being dismissed except for criminal conduct. For
present purposes, we assume, without deciding, that Ericson's
representations were sufficient to impart an offer of lifetime
employment to Frankina.
As we stated in Goldman, however:
Under Massachusetts law, a lifetime employ- ment contract cannot be found absent evidence that it was made or ratified by an officer or agent with actual or apparent authority to bind the employer to a lifetime contract. See Rydman v. Dennison Mfg. Co., 373 Mass.
855, 366 N.E.2d 763 (1977); Porshin v. Snid-
er, 349 Mass. 653, 654, 212 N.E.2d 216, 217
(1965); Thalin v. Friden Calculating Mach.
Co., 338 Mass. 67, 70, 153 N.E.2d 658, 660
(1958); Simonelli v. Boston Hous. Auth., 334
Mass. 438, 440-41, 137 N.E.2d 670, 672-73 (1956).
Id. at 16-17. As the present record contains no evidence that
the Bank invested Ericson with actual authority to extend a
binding offer of lifetime employment to anyone, we need only
determine whether Frankina has demonstrated a genuine factual
dispute material to the issue of apparent authority.
Apparent authority "results from conduct by the princi-
pal which causes a third person reasonably to believe that a
particular person . . . has authority to enter into negotiations
or to make representations as his agent." Hudson v. Massachu-
setts Property Ins. Underwriting Ass'n, 386 Mass. 450, 457, 436
N.E.2d 155, 159 (1982) (quoting W.A. Seavey, Agency 8D at p. 13
(1964)) (emphasis added); accord Goldman, slip op. at 17.
Apparent authority "'cannot be established by the putative
agent's own words or conduct, but only by the principal.'"
Sheinkopf v. Stone, 927 F.2d 1259, 1269 (1st Cir. 1991) (quoting
Sheldon v. First Fed. Savings & Loan Ass'n, 566 F.2d 805, 808
(1st Cir. 1977)) (emphasis added). Thus, as in Goldman, slip op.
at 17, we must examine the record for evidence of conduct on the
part of the Bank that could have led Frankina reasonably to
believe that Ericson was authorized to extend an offer of life-
time employment.
"A person appointed to a position with generally recog-
nized functions may be found to possess apparent authority to
perform the duties ordinarily entrusted to one occupying that
position." Id. (citing Restatement (Second) of Agency 27 cmt.
a (1958)). As a personnel officer, Ericson undoubtedly had
actual or apparent authority to hire Bank employees. Under
Massachusetts law, however, ordinary authority to hire is insuf-
ficient to bind an employer to a lifetime employment contract.
Id. at 18-19 (citing cases). Thus, holding Ericson out as its
agent for general hiring purposes did not constitute conduct
warranting an objectively reasonable belief that Ericson was
authorized to offer lifetime employment with the Bank. See id.
at 19.
Under rare circumstances, apparent authority to enter a
lifetime employment contract may be found where it is customary
for a particular officer or agent to make lifetime contracts.
Id. The Bank submitted competent affidavits attesting that
Ericson had no actual authority to bind the Bank to a lifetime
contract and that no employee has a lifetime contract with the
Bank. Nonetheless, Frankina contends that an inference that
lifetime contracts were commonplace at the Bank arises from the
"widely discussed fact" that, prior to 1989, no employee had ever
been terminated other than for criminal conduct. Under Massa-
chusetts law, however, "[l]ifetime contracts are [considered]
extraordinary in their nature and strong proof is required to
establish their due formation." Gregory v. Raytheon Serv. Co.,
27 Mass. App. Ct. 1170, 1171, 540 N.E.2d 694, 695 (1989); see
Goldman, slip op. at 20. "Although widespread knowledge that the
Bank had never laid off an employee except for criminal conduct
might prompt the legitimate belief that employment at the Bank
was relatively secure, it cannot be considered competent proof,
let alone 'strong proof,' that any Bank employee had a lifetime
employment contract." Id. (internal citation omitted). Absent
evidence that any employee at any level under any circum-
stances had a lifetime contract with the Bank, we must con-
clude that a rational factfinder could not reasonably find that
lifetime employment contracts with the Bank were customary. Id.
Although Frankina correctly asserts that an agent's
authority to make binding promises is a question of fact, see
Eastern Renovating Corp. v. Forhan, 391 F. Supp. 204, 205 (D.
Mass. 1975); Salem Bldg. Supply Co. v. J.B.L. Constr. Co., 10
Mass. App. Ct. 360, 365, 407 N.E.2d 1302, 1306 (1980), he pre-
sented no evidence which would permit a factfinder reasonably to
conclude, consistent with Massachusetts law, that Ericson had
actual or apparent authority to bind the Bank to a lifetime
employment contract. Nor did Frankina adduce evidence that
anyone else, with actual or apparent authority to bind the Bank,
subsequently ratified any unauthorized offer of lifetime employ-
ment. See Goldman, slip op. at 20-21. As no trialworthy issue
was raised, summary judgment was proper on the lifetime employ-
ment claim.5
C. Breach of Preferential Hiring Contract
Finally, Frankina contends that there is a disputed
issue of material fact as to whether the Bank breached a promise
to accord preferential treatment to any reemployment application
he might file. Although the Bank denies any such promise, we
assume for present purposes, as did the district court, that such
a promise was made. The district court ruled that any such
5Accordingly, we need not address the claim that Frankina changed his position in reliance on a reasonable belief that Ericson had authority to offer lifetime employment.
promise would have lacked the consideration required to support a
contract under Massachusetts law. Frankina contends that he
relied to his detriment on the Bank's promise. He represents
that, during the first six months after he was discharged, he
concentrated his job-search efforts on obtaining reemployment
with the Bank.
Under Massachusetts law, a contract may be based on a
promise supported by reliance. Loranger Constr. Corp. v. E.F.
Hauserman Co., 376 Mass. 757, 760-61, 384 N.E.2d 176, 179 (1978)
("When a promise is enforceable in whole or in part by virtue of
reliance, it is a 'contract', and it is enforceable pursuant to a
'traditional contract theory' antedating the modern doctrine of
consideration"). However, "'the promisee must actually rely on
the promise,' and 'the reliance must have been induced by the
promise.'" Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432,
442 n.13, 597 N.E.2d 1017, 1023 n.13 (1992) (quoting E.A. Farns-
worth, Contracts 2.19 at 95-96 (1982)). Frankina presented no
competent evidence that he relied on the alleged promise.
Although Frankina's affidavit represents that he con-
centrated his job-search efforts, for the first six months, on
obtaining reemployment with the Bank, this ambiguous statement is
contradicted by his deposition testimony.6 On deposition,
6The affidavit allows that Frankina "made other attempts outside the Bank during that time, [but that his] focus for those first six months was on getting back into the Bank." We cannot credit, as competent evidence of detrimental reliance, Frankina's vague and conclusory statement that he "concentrated" and "fo- cused" his efforts on obtaining reemployment. See Medina-Munoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)
Frankina testified that he diligently pursued employment both
inside and outside the Bank "from the day [he] was let go to the
present," that he was not at any time less than diligent in
looking for work either inside or outside the Bank, that between
May 1989 and May 1990 he applied to over 200 employers, and that
he applied for jobs all over the United States and Canada.
Viewed in the context of the immediate and comprehensive job
search he described at deposition, the vague representation in
Frankina's affidavit that during the first six months he
"focused" and "concentrated" on getting reemployed by the Bank
was insufficient to generate a trialworthy issue on the detrimen-
tal reliance claim. See Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Babrocky v. Jewel
Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985) (material issue of
fact cannot be demonstrated by submitting affidavit contradicting
sworn deposition testimony); Foster v. Arcata Assoc., Inc., 772
F.2d 1453, 1462 (9th Cir. 1985), cert. denied, 475 U.S. 1048
(1986) (same); S. G. Supply Co. v. Greenwood Int'l, Inc., 769 F.
Supp. 1430 (N.D. Ill. 1991) (same); Lowery v. Airco, Inc., 725 F.
Supp. 82, 85-86 (D. Mass. 1989) (same). Accordingly, summary
judgment on the claim for breach of a preferential hiring con-
tract was proper.
Affirmed; no costs to either party.
(summary judgment not forestalled by "conclusory allegations, improbable inferences, and unsupported speculation").