Kelleher v. Imaging Systems, Inc

Court of Appeals for the First Circuit·Decided September 6, 1996·No. 96-1186·Published

Opinion

USCA1 Opinion

September 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________

No. 96-1186

ROBERT F. KELLEHER,

Plaintiff, Appellant,

v.

LORAL INFRARED AND IMAGING SYSTEMS, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge] ___________________

____________________

Before

Selya, Cyr and Boudin,
Circuit Judges. ______________

____________________

Robert F. Kelleher on brief pro se. __________________
Alan B. Pearl, Pearl & MacKenzie, P.C., Leonard Paris and _______________ __________________________ ______________
Laurence I. Cohen on brief for appellee. _________________

____________________

____________________

Per Curiam. Plaintiff-appellant alleged age ___________

discrimination in the termination of his eighteen-year

employment as a quality assurance engineer during a company-

wide reduction in force which occurred shortly after his

former employer was acquired by another corporation. The new

employer, LIRIS, responded that the elimination and

consolidation of employee positions was a necessary cost-

cutting move, and that it had treated age neutrally in the

process. After lengthy discovery, the district court granted

summary judgment to LIRIS because plaintiff's proof failed to

create a genuine issue of fact as to LIRIS's motivation.

Reviewing the judgment de novo, and after a close __ ____

examination of the record and briefs, we find no substantial

reason to disagree with the district court's conclusion.

Accordingly, we summarily affirm the judgment, adding only

the following comments in response to two of appellant's

arguments on appeal.

(1) We have reviewed with care the excerpts from

appellant's deposition testimony which he claims were

overlooked by the district court. The testimony does not ___

identify the anonymous declarant(s) who reported that LIRIS

was prejudiced against older workers and "taking a hard look

at anyone over 40 years of age and earning over 40K."

Appellant named employees who "discussed," "referenced," or

"mentioned" the anonymous statements, not those who initially

-2-

uttered them. Appellant's reliance on Conway v. Electro ______ _______

Switch Corp., 825 F.2d 593 (1st Cir. 1987), and Woodman v. _____________ _______

Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995) is thus __________________

misplaced. In Conway, we held that the district court did ______

not abuse its discretion in a gender discrimination case by

admitting into evidence testimony reflecting two prior

instances of gender bias in the treatment of women employees.

The witnesses testified that in each instance a named company

manager explained a decision to deny a pay increase to a

woman employee on the basis of the woman's gender. The named

declarants had authority to make the statements, and one of

them was the president of the company at the time that

plaintiff's employment was terminated. We held that under

Fed. R. Evid. 401, the statements were not wholly irrelevant

to the issues at hand because they might circumstantially

evidence a "corporate state-of-mind" or a "discriminatory

atmosphere."

In Woodman, an age discrimination case, we held _______

admissible a named supervisor's statement purporting to

communicate management's desire for a younger workforce. The

supervisor was in a position to know of management's

intentions; she was "directly involved" in implementing the

challenged reduction in force; and the statement was

admissible under Fed. R. Evid. 801(d)(2)(D) because it

-3-

concerned matters within the scope of her employment.

Woodman, 51 F.3d at 1093-94. _______

In contrast, appellant's proof is that anonymous

statements reporting a discriminatory animus were "abound"

during the layoff period, and "bantered about" by numerous

employees. There was no evidence that the banterers were in

a position to know of management's sentiments nor that they

had any responsibility for communicating or implementing

LIRIS's policy. The identification of one of the banterers

as a "supervisor" does not alone provide the missing link,

especially since this supervisor was himself a victim of the

new management's layoff.

Proof of "bantering" by employees fearful of a new

employer's motives for a layoff does not suffice to establish

a genuine issue of fact as to the employer's actual mindset.

Cf. Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th ___ ________ ___________________

Cir. 1996) (holding that "rumors, conclusory allegations and

subjective beliefs [are] wholly insufficient evidence to

establish a claim of discrimination as a matter of law"). As

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion




September 6, 1996       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ___________________


No. 96-1186



                                 ROBERT F. KELLEHER,



                                Plaintiff, Appellant,



                                          v.



                      LORAL INFRARED AND IMAGING SYSTEMS, INC.,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Robert F. Kelleher on brief pro se.
            __________________

            Alan  B.  Pearl,  Pearl  &  MacKenzie,  P.C.,  Leonard  Paris  and
            _______________   __________________________   ______________

        Laurence I. Cohen on brief for appellee.
        _________________


____________________


____________________



Per  Curiam.      Plaintiff-appellant  alleged  age
                      ___________



            discrimination  in  the  termination  of   his  eighteen-year



            employment as a quality  assurance engineer during a company-



            wide  reduction in  force  which occurred  shortly after  his



            former employer was acquired by another corporation.  The new



            employer,   LIRIS,  responded   that   the  elimination   and



            consolidation  of employee  positions was  a necessary  cost-



            cutting  move, and that it  had treated age  neutrally in the



            process.  After lengthy discovery, the district court granted



            summary judgment to LIRIS because plaintiff's proof failed to



            create a genuine issue of fact as to LIRIS's motivation. 



                      Reviewing the  judgment de novo, and  after a close
                                              __ ____



            examination of the record and briefs, we find no  substantial



            reason  to disagree  with  the  district court's  conclusion.



            Accordingly, we summarily  affirm the  judgment, adding  only



            the  following comments  in  response to  two of  appellant's



            arguments on appeal.



                      (1)  We have  reviewed with care the excerpts  from



            appellant's  deposition  testimony   which  he  claims   were



            overlooked  by the district court.    The  testimony does not
                                                                      ___



            identify the  anonymous declarant(s) who reported  that LIRIS



            was prejudiced against older workers and "taking a hard  look



            at  anyone  over  40 years  of  age  and  earning over  40K."



            Appellant named  employees who "discussed,"  "referenced," or



            "mentioned" the anonymous statements, not those who initially


-2-



uttered them.       Appellant's reliance on Conway v. Electro
                                                        ______    _______



            Switch  Corp., 825 F.2d 593  (1st Cir. 1987),  and Woodman v.
            _____________                                      _______



            Haemonetics  Corp., 51  F.3d  1087 (1st  Cir.  1995) is  thus
            __________________



            misplaced.   In Conway, we  held that the  district court did
                            ______



            not abuse its  discretion in a gender  discrimination case by



            admitting  into  evidence   testimony  reflecting  two  prior



            instances of gender bias in the treatment of women employees.



            The witnesses testified that in each instance a named company



            manager  explained a  decision to  deny a  pay increase  to a



            woman employee on the basis of the woman's gender.  The named



            declarants had authority  to make the statements, and  one of



            them  was the  president  of the  company  at the  time  that



            plaintiff's employment  was terminated.   We held  that under



            Fed. R. Evid. 401, the  statements were not wholly irrelevant



            to  the issues  at hand  because they  might circumstantially



            evidence  a  "corporate state-of-mind"  or  a "discriminatory



            atmosphere."  



                      In Woodman,  an age  discrimination  case, we  held
                         _______



            admissible  a  named  supervisor's  statement  purporting  to



            communicate management's desire for a younger workforce.  The



            supervisor  was  in  a   position  to  know  of  management's



            intentions; she was  "directly involved" in implementing  the



            challenged   reduction  in  force;   and  the  statement  was



            admissible  under  Fed.  R.  Evid.  801(d)(2)(D)  because  it


-3-



concerned  matters  within  the  scope   of  her  employment.



            Woodman, 51 F.3d at 1093-94.  
            _______



                      In  contrast, appellant's  proof is  that anonymous



            statements  reporting a  discriminatory animus  were "abound"



            during the  layoff period,  and "bantered about"  by numerous



            employees.   There was no evidence that the banterers were in



            a  position to know of  management's sentiments nor that they



            had  any  responsibility  for  communicating  or implementing



            LIRIS's policy.  The  identification of one of the  banterers



            as a "supervisor"  does not alone  provide the missing  link,



            especially  since this supervisor was himself a victim of the



            new management's layoff. 



                      Proof of "bantering" by  employees fearful of a new



            employer's motives for a layoff does not suffice to establish



            a  genuine issue of fact as to the employer's actual mindset.



            Cf.  Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1095 (6th
            ___  ________    ___________________



            Cir. 1996) (holding that "rumors, conclusory allegations  and



            subjective  beliefs  [are]  wholly insufficient  evidence  to



            establish a claim of discrimination as a matter of law").  As



            the district  court observed, too, appellant's  proof did not



            satisfy the  foundation requirements for  admissibility under



            Fed. R. Evid. 801(d)(2)(C)(D).



                      (2)  Appellant's evidence also was  insufficient to



            establish  a genuine issue of  fact in support  of his theory



            that  he was "replaced" in his position by a younger employee


-4-



and/or that  LIRIS retained  younger employees in  the "same"



            position.  Viewing  the evidence in the light  most favorable



            to  appellant, it  could not  support a  reasonable inference



            that  any employee  assumed a  position that  was coextensive



            with,  or  identical  to,  the  duties  which  appellant  had



            performed.   See LeBlanc v.  Great American Ins.  Co., 6 F.3d
                         ___ _______     ________________________



            836, 846  (1st Cir. 1993) (an employee is not "replaced" when



            another is  assigned  to perform  his duties  in addition  to



            other duties, or when  the work is redistributed among  other



            existing  employees already  performing related  work), cert.
                                                                    _____



            denied,  114 S.Ct. 1398  (1994); cf. Hebert  v. Mohawk Rubber
            ______                           ___ ______     _____________



            Co., 872 F.2d 1104, 1114  (1st Cir. 1989) (finding sufficient
            ___



            proof to survive summary  judgment where the younger retained



            person "exactly" conducted the  work of riffed employee, with



            only minor modifications). 



                      Appellant's motion for reconsideration of the order



            submitting this  case for  decision without oral  argument is



            denied.  The judgment is affirmed.  See Loc. R. 27.1.  
            ______                   ________   ___


-5-

Kelleher v. Imaging Systems, Inc, (1st Cir. 1996).

Pincite

Kelleher v. Imaging Systems, Inc (Kelleher v. Imaging Systems, Inc) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Woodman v. Haemonetics Corp.

51 F.3d 1087 (First Circuit, 1995)

Sandra Conway v. Electro Switch Corp., Sandra Conway v. Electro Switch Corp.

825 F.2d 593 (First Circuit, 1987)

Andrew P. Hebert v. The Mohawk Rubber Company

872 F.2d 1104 (First Circuit, 1989)

Opinion

Related