USCA1 Opinion
November 25, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
For the First Circuit
For the First Circuit
____________________
No. 92-1702
SIDNEY R. LAWRENCE,
Plaintiff, Appellant,
v.
NORTHROP CORPORATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Brown,* Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Paul A. Manoff for appellant.
______________
Joseph D. Regan with whom Donahue & Donahue was on brief for
________________ __________________
appellee.
____________________
____________________
_____________________
*Of the Fifth Circuit, sitting by designation.
STAHL, Circuit Judge. On September 2, 1988,
STAHL, Circuit Judge.
______________
defendant-appellee Northrop Corporation ("Northrop")
terminated the employment of plaintiff-appellant Sidney R.
Lawrence ("Lawrence"). Believing that his discharge stemmed
from impermissible age discrimination, Lawrence sued Northrop
under the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. 621-634 (1985 & Supp. 1992). The district court
entered summary judgment in Northrop's favor. We affirm.
I.
I.
__
STATE OF THE RECORD
STATE OF THE RECORD
As an initial matter, we note that Lawrence's
counsel, in opposing Northrop's summary judgment motion and
in framing the instant appeal, has presented both the
district court and this panel with factual allegations and
legal theories that bear little, if any, resemblance to those
found in the complaint. In addition, as support for the new
allegations and theories, counsel has submitted, without any
appreciable attempt at useful elaboration, a cornucopia of
disjointed deposition excerpts and unexplained discovery
documents. Given such a record, any attempt to set forth the
facts underpinning Lawrence's various allegations, without
context, would be an Augean labor. Accordingly, we find it
more worthwhile to begin by reciting the relevant legal
norms, and then to use our recitation as a lens through which
to focus Lawrence's somewhat clouded presentation.
-2-
2
II.
II.
___
LAW TO BE APPLIED
LAW TO BE APPLIED
A. Summary Judgment
A. Summary Judgment
____________________
Summary judgment operates "to pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required."
Wynne v. Tufts Univ. Sch. of Medicine, No. 92-1437, slip op.
_____ ____________________________
at 6 (1st Cir. Oct. 6, 1992). It is appropriate where "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
___ ____ ______________
Catrett, 477 U.S. 317, 323 (1986).
_______
The moving party bears the initial burden of
"averring `an absence of evidence to support the nonmoving
party's case.'" Garside v. Osco Drug, Inc., 895 F.2d 46, 48
_______ ________________
(1st Cir. 1990) (quoting Celotex, 477 U.S. at 325). That
_______
burden having been met, the nonmoving party "may not rest
upon mere allegation or denials of his[/her] pleading, but
must set forth specific facts showing that there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.
________ ___________________
242, 256 (1986) (citing Fed. R. Civ. P. 56(e)). In so doing,
the nonmovant "must present affirmative evidence in order to
___________ ________
defeat a properly supported motion for summary judgment."
-3-
3
Id. at 257 (emphasis supplied). In conducting our analysis,
___
however, we read the record "in the light most amiable to the
nonmovant[] and indulge all reasonable inferences favorable
to [him/her]." Garside, 895 F.2d at 48.
_______
Our review of a summary judgment ruling is plenary.
Id. Moreover, we are not limited to the district court's
___
reasoning. Instead, we may "`affirm the entry of summary
judgment on any independently sufficient ground made manifest
by the record.'" Quintero v. Aponte-Roque, No. 92-1227, slip
________ ____________
op. at 3-4 (1st Cir. Sept. 10, 1992) (quoting United States
_____________
v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.
____________________________
1992)).
B. The ADEA
B. The ADEA
____________
When, as here, a plaintiff produces no direct
evidence of age discrimination, the case is analyzed under
the now-familiar burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
_________________________ _____
(1973). See, e.g., Biggins v. Hazen Paper Co., 953 F.2d
___ ____ _______ ________________
1405, 1409 (1st Cir.), cert. denied, 112 S. Ct. 3035 (1992);
_____ ______
Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir.
_______ __________________
1991), cert. denied, 112 S. Ct. 2965 (1992). Plaintiff first
_____ ______
must make a prima facie showing of discrimination. Biggins,
_______
953 F.2d at 1409; Mesnick, 950 F.2d at 823. In a case where
_______
plaintiff was replaced by another worker, this requires a
demonstration that (1) plaintiff was at least forty years of
-4-
4
age, (2) plaintiff's work was sufficient to meet his/her
employer's legitimate expectations, and (3) plaintiff was
replaced by someone with roughly similar qualifications.
Connell v. Bank of Boston, 924 F.2d 1169, 1172 (1st Cir.),
_______ ______________
cert. denied, 111 S. Ct. 2828 (1991); Medina-Munoz v. R.J.
_____ ______ ____________ ____
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). In a
_____________________
situation where there has been a reduction in force, we have
suggested that, as an alternative to showing replacement by a
similarly qualified person, a plaintiff may establish a prima
facie case by showing that "`the employer did not treat age
neutrally or that younger persons were retained in the same
position.'" Connell, 924 F.2d at 1173 n.5 (quoting Hebert v.
_______ ______
Mohawk Rubber Co., 872 F.2d 1104, 1111 (1st Cir. 1989)). If
__________________
made, the prima facie case gives rise to an inference that
the employer discriminated on the basis of plaintiff's age.
Mesnick, 950 F.2d at 823.
_______
Once the prima facie case is established, the
burden shifts to the employer to articulate a legitimate
nondiscriminatory reason for the employee's termination.
Biggins, 953 F.2d at 1409; Mesnick, 950 F.2d at 823. The
_______ _______
employer's burden at this stage is merely one of production;
the burden of persuasion remains plaintiff's at all times.
Mesnick, 950 F.2d at 823 (citing Texas Dep't of Community
_______ _________________________
Affairs v. Burdine, 450 U.S. 248, 253, 256 (1981)). If a
_______ _______
non-discriminatory reason is set forth, the inference raised
-5-
5
by the prima facie case disappears and the burden shifts back
to plaintiff. Id.
___
At the third and final stage of the McDonnell-
__________
Douglas framework, plaintiff must show that the
_______
nondiscriminatory reason advanced by the employer is a
pretext for age discrimination. Id.; see also Connell 924
___ ___ ____ _______
F.2d at 1172. It is not enough for plaintiff merely to cast
doubt upon the employer's justification. Mesnick, 950 F.2d
_______
at 824; Villanueva v. Wellesley College, 930 F.2d 124, 127-28
__________ _________________
(1st Cir.), cert. denied, 112 S. Ct. 181 (1991). Rather,
_____ ______
this circuit has construed Fed. R. Civ. P. 56's requirement
that a party opposing a motion for summary judgment
demonstrate the existence of at least one material factual
________
dispute as mandating that the non-moving party point to
evidence which could raise an inference of a discriminatory
motive underlying the pretextual explanation. See
___
Villanueva, 930 F.2d at 128; see also Mesnick, 950 F.2d at
__________ ___ ____ _______
824-25. Proof of such a motive need not be direct. Mesnick,
_______
950 F.2d at 824; Connell, 924 F.2d at 1172 n.3.1 "Rather,
_______
____________________
1. In elaborating upon what a non-moving plaintiff minimally
must prove in order to elude summary judgment at stage three
of the McDonnell Douglas rubric, we have stated: "There is
_________________
no absolute rule that a discrimination plaintiff must adduce
____
evidence in addition to that comprising the prima facie case
and the rebuttal of defendant's justification in order to
prevail either at the summary judgment stage or at trial."
Villanueva, 930 F.2d at 128 (emphasis in original). We also
__________
have asserted: "[I]n some factual settings, the mere showing
of the falsity of the employer's stated reasons may, along
with the other facts and circumstances in the case, give rise
-6-
6
the evidence as a whole, whether direct or indirect, must be
sufficient for a reasonable factfinder to infer that the
employer's decision was motivated by age animus." Connell,
_______
924 F.2d 1172 n.3. It is against this backdrop that we
evaluate Lawrence's assertions.
____________________
to a reasonable inference of age discrimination." Connell,
_______
924 F.2d at 1175.
These statements cannot be read as suggesting that, in
some instances, a plaintiff may be allowed to proceed to
trial where the record is devoid of either direct or indirect
evidence of discriminatory animus on the employer's part. In
this circuit, it is settled that a plaintiff cannot avoid
summary judgment unless the record contains minimally
sufficient evidence, direct or indirect, both of pretext and
___
of the employer's discriminatory animus. Mesnick, 950 F.2d
_______
at 825; Villanueva, 930 F.2d at 127; Connell, 924 F.2d at
__________ _______
1172; Medina-Munoz, 896 F.2d at 9; see also Olivera v. Nestle
____________ ___ ____ _______ ______
Puerto Rico, Inc., 922 F.2d 43, 48 (1st Cir. 1990) ("In
___________________
addition to making out a prima facie case, a plaintiff has
the burden not only of proving that the articulated reasons
of the employer were pretextual but also of adducing
additional evidence that the articulated reasons were a
pretext for age discrimination."); but see Connell, 924 F.2d
___ ___ _______
at 1181 (Torres, J., concurring) (arguing that if a plaintiff
has successfully demonstrated a triable issue with regard to
pretext, the inference of discrimination raised by the prima
facie case should be reinstated and, in the absence of
uncontradicted evidence that the employer was motivated by
some other nondiscriminatory reason, the case should proceed
to trial); id. at 1182-85 (Bownes, J., dissenting) (arguing
___
that if plaintiff makes out a prima facie case and
successfully rebuts as pretextual the employer's proffered
explanation, s/he should be allowed to proceed to trial).
Thus, the aforementioned statements should only be read as
indicating that where, by whatever means, the record contains
evidence sufficient for a fact-finder to infer discriminatory
animus on the part of an employer, plaintiff need only make
out a prima facie case and rebut as pretextual the employer's
justification in order to defeat a summary judgment motion.
-7-
7
III.
III.
____
BACKGROUND
BACKGROUND
A. A Brief History
A. A Brief History
___________________
In October 1985, Lawrence joined Northrop's Defense
Systems Division in Rolling Meadows, Illinois. At the time
of his hiring, Lawrence was fifty-two years old. He was
hired on a "skills-needed" basis.
By mid-1988, Northrop was experiencing severe
economic stress and was in the process of significantly
reducing its workforce.2 During this period, Lawrence was
employed as an associate program manager and was working on a
defense project for the Canadian government. Lawrence
contends that he was working forty-seven hour weeks
throughout 1988. Northrop concedes that Lawrence's
employment performance, at all relevant times, met
expectations.
On September 2, 1988, Lawrence received an unsigned
notice advising him that he was being placed on layoff,
effective immediately. The notice indicated that the layoff
was precipitated by business conditions necessitating a
reduction in work force. That same day, an internal Northrop
____________________
2. The record reflects that between 1986 and July 1988, just
prior to Lawrence's layoff, Northrop had reduced its
workforce from approximately 5,500 workers to approximately
4,500 workers. The record further reflects that, at the time
of Lawrence's discharge, twenty-one other employees were
either terminated or transferred out of Lawrence's
department.
-8-
8
memorandum entitled "Justification for Organization Lay-Off
Selection" was sent to file.3 The memorandum stated: "Mr.
Lawrence's selection for lay-off from Organization 4000 is
based upon the fact that his relative ranking in performance
amongst his peers was the lowest in Organization 4000."
Lawrence was fifty-five years old at the time of his
termination.
On January 26, 1989, Lawrence filed with the Equal
Employment Opportunity Commission ("EEOC") an affidavit
charging that his termination was the result of age
discrimination. The EEOC conducted an investigation and, on
November 28, 1989, issued its determination that no violation
of the ADEA had occurred. This determination was upheld on
review, and Lawrence's charge was dismissed. On August 22,
1990, Lawrence instituted the instant proceedings by filing
his complaint in district court.
B. Lawrence's Allegations
B. Lawrence's Allegations
__________________________
Lawrence's complaint is premised upon the theory
that his termination was a manifestation of a scheme on the
part of Northrop to replace its older workers with younger
workers. In relevant part, the complaint asserts:
5. On information and belief,
sometime in 1988, prior to September,
Northrop determined to reduce its work
____________________
3. The record does not indicate whether the memorandum was
placed in Lawrence's personnel file or in a general Northrop
file.
-9-
9
force and devised a lay-off program which
was not age-neutral but was intended to
rid Northrop of its older workers. On
information and belief, an element of the
lay-off program was the discharge of both
young and old workers and the subsequent
rehiring of the best of the young
workers.
6. In August, 1988, there were 4
employees in Program Management,
including Robert Eisenberg (Program
Director, about age 43), Frank
D'Alexander (Program Manager, about age
37), Glenn Grotefeld (Associate Program
Manager, about age 30), and Lawrence
(Associate Program Manager, age 55). The
time of all 4 employees was fully
involved.
7. On or about September 1, 1988,
Robert Eisenberg notified Lawrence that
he was to be laid off effective the
following day. On September 2, 1988,
written confirmation of the layoff was
given to Lawrence. . . .
8. At the same time as Northrop
discharged Lawrence, it also discharged
the other younger Associate Program
Manager, Glenn Grotefeld. However,
within two weeks, Northrop attempted to
rehire Grotefeld. On information and
belief, the "discharge" of Grotefeld was
never intended to be permanent but was
solely intended to obscure the fact that
the lay-off was directed at older
employees. When Grotefeld refused
employment because he had found a better
job, Northrop assigned an employee named
Michael Werwath, about age 32, to replace
Grotefeld.
9. Within days of discharging
Lawrence, Northrop reassigned an employee
named Stanley Piech, about age 37, to
replace Lawrence as Associate Program
Manager on the Canadian project. On
information and belief, Stanley Piech had
already been selected to replace Lawrence
-10-
10
at the time of Lawrence's discharge. On
information and belief, Northrop's
selection of Stanley Piech to replace
Lawrence was principally based on his
age.
Northrop filed an answer denying each of these
allegations and asserting that Lawrence was terminated as
part of a general reduction in force in accordance with
appropriate employee evaluation procedures. Following the
close of discovery, Northrop filed a motion for summary
judgment, reiterating its position that Lawrence was
terminated as part of a reduction in force because he had the
lowest performance rating among his peers and because his
skills were no longer needed. Northrop's motion further
asserted that the allegations set forth in Lawrence's
complaint were insufficiently supported to forestall the
proper entry of summary judgment in its favor.
Lawrence responded to the motion like the Hydra to
a sword. Apparently submitting to the decapitation of the
contentions animating his complaint, Lawrence, in his
opposition memorandum, made no mention either of Northrop's
alleged plan to fire and then rehire its young workers or of
Glenn Grotefeld. Further, though continuing to protest
generally Northrop's eventual reassignment of Stanley Piech
to the Canadian project, Lawrence made no real attempt to
demonstrate how such reassignment might have run afoul of the
ADEA. Instead, Lawrence relied primarily on two freshly-
-11-
11
spawned theories, asserting that there existed sufficient
evidence for a trial on whether his low performance rating
had been (1) arrived at, or (2) interpreted in a
discriminatory manner. Specifically, Lawrence alleged that
he was dismissed on the basis of a performance rating which
had been downgraded, or "leveled," from a 4.0 to a 3.0 (out
of 6.0), while both a younger associate program manager with
a non-leveled performance rating of 3.97, Sheryl DeStefano,
and a younger program manager who had never been evaluated,
Mr. Dahlstrom,4 were retained.5 Lawrence also made passing
reference to certain documents obtained during discovery
which, in his view, showed that he was "targeted" for layoff
at a time when he did not have the lowest performance rating
among his peers. In conjunction with his opposition
memorandum, Lawrence submitted several deposition excerpts
and unexplained discovery documents.
The district court entered summary judgment in
Northrop's favor. After a herculean effort at summarizing
Lawrence's evidence and assertions, the court found that
Lawrence had met his prima facie burden at stage one of the
McDonnell Douglas framework by demonstrating that at least
_________________
____________________
4. The record does not reveal Mr. Dahlstrom's first name.
5. The record reflects that from May through September of
1988, Northrop ordered that the performance ratings of
employees in Lawrence's division be leveled so as to reflect
the division's poor overall performance.
-12-
12
one younger associate program manager was retained at the
time he was laid off. The court then determined that
Northrop had met its stage two burden of articulating a
nondiscriminatory reason for Lawrence's discharge. Finally,
without specifically stating whether Lawrence had made a
sufficient showing to raise the question of pretext, the
court ruled that, at stage three of the burden-shifting
analysis, Lawrence had not presented sufficient evidence for
a reasonable trier of fact to infer that the decision to fire
him was motivated by age animus.
On appeal, Lawrence challenges the district court's
view of the evidence at stage three. In so doing, Lawrence
points to three things which he believes support an inference
of age discrimination and warrant a trial: (1) the retention
of DeStefano and Dahlstrom; (2) the documents which
purportedly show that he was targeted for layoff at a time
when he did not have the lowest performance rating among his
peers; and (3) his eventual replacement with the younger
Stanley Piech. We discuss each in turn.
IV.
IV.
___
DISCUSSION
DISCUSSION
A. The Retention of DeStefano and Dahlstrom
A. The Retention of DeStefano and Dahlstrom
____________________________________________
In support of his claim of discrimination, Lawrence
first alleges that Northrop leveled his performance rating
from a 4.0 to a 3.0 and then dismissed him while retaining
-13-
13
DeStefano, who had a non-leveled performance rating of 3.97.
If true in its entirety, this allegation might give us pause.
However, the record does not support Lawrence's contention
about DeStefano's performance rating.
Simply put, Lawrence does not indicate, nor can we
locate, any record evidence demonstrating that DeStefano had
an unleveled performance rating of 3.97. DeStefano's
performance appraisal only states that she "meets
requirements very well." It does not contain a numerical
rating. Moreover, none of the submitted deposition excerpts
bolsters Lawrence's claim.6 As such, the retention of
DeStefano at the time of Lawrence's discharge cannot be
viewed as raising an inference of age discrimination.7
Lawrence's allegation that the retention of program
manager Dahlstrom constitutes evidence of age animus does not
____________________
6. Indeed, the only place in the record where the number
3.97 appears is when, in the course of deposing a Northrop
employee, Lawrence's counsel seems to state that the
DeStefano appraisal contains a rating of 3.97. As noted
above, however, the appraisal contains no such rating.
7. Even were we to accept Lawrence's contention that
DeStefano did have a non-leveled rating of 3.97, it does not
seem that this fact would help Lawrence's cause. Although
Lawrence's performance appraisal contains a rating of 4.0
crossed out by the letter "X" and replaced with a 3.0,
followed by a notation explaining that the change was made
pursuant to the leveling policy, it looks as though
Lawrence's rating was rounded up to a 4.0. The raw score
next to the box containing the rating is 127/32, which equals
3.968. Thus, it appears that Lawrence's actual non-leveled
rating, when carried out the relevant number of decimal
places, is less than 3.97.
-14-
14
require extended discussion. As noted above, where, as here,
a plaintiff fails to show that the employer did not treat age
neutrally in reducing its work force, a prima facie case is
established only where a plaintiff demonstrates "that younger
persons were retained in the same position." Connell, 924
__ ___ ____ ________ _______
F.2d at 1173 n.5 (quoting Hebert, 872 F.2d at 1111) (emphasis
______
added). The record reflects that Lawrence was an associate
program manager, and not a program manager, at the time of
his termination.8 Accordingly, the retention of Dahlstrom
as program manager, in the context of the other evidence in
this case, is not significantly probative on the question of
whether the dismissal of Lawrence violated the ADEA.
B. The Targeting Documents
B. The Targeting Documents
___________________________
Lawrence's second argument, generously construed,
is that certain documents in the record reveal that he was
targeted for layoff at a time when he did not have the lowest
performance rating among his peers.9 The record contains an
____________________
8. Lawrence has not alleged, nor does the record suggest,
that the positions of associate program manager and program
manager were, in essence, the same.
9. Indeed, Lawrence's brief makes such a cursory reference
to these documents that a strong case could be made that
Lawrence has waived the issues raised by them. See Elgabri
___ _______
v. Lekas, 964 F.2d 1255, 1261 (1st Cir. 1992) ("`[I]ssues
_____
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.'")
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
_____________ _______
cert. denied, 494 U.S. 1082 (1990)). Although it is a close
_____ ______
question, we feel that Lawrence has done just enough to
preserve his argument. Accordingly, we address its merits.
-15-
15
April 21, 1988, memorandum listing the names of eleven
employees who are described as "available for reassignment
and/or layoff." Lawrence's name appears on that list. The
record also includes two undated documents that appear to
have been prepared by Northrop in order to assess its
possible liability in discrimination suits ("the liability
documents"). At oral argument, Lawrence's counsel
represented, without substantiation, that the undated
documents must have been prepared after the April 21, 1988,
memorandum but before Lawrence's May 1988 evaluation.10
The first of the two documents bears the following notation
next to Lawrence's name:
-age liability as does not have lowest
rated performance when compared with
other's [sic] in job title in unit or in
[Organization] 4000. Some reviews are
leveled and some are not leveled. Of
seven Prog. Mgr. Assoc. in 4000, the
three oldest are targeted for layoff.
The second document also contains remarks next to Lawrence's
name:
-Age 54 yrs. old.
-Does not have lowest review in unit.
-Three individuals in unit, not affected,
hold lower ratings of 3.2, 3.3, and 3.4.
____________________
10. Apparently, the second of the two documents was prepared
prior to Lawrence's May 1988, evaluation, as it notes his
most recent review as having taken place in May 1987.
Moreover, both documents appear to have been prepared after
December 1987, as each contains references to evaluations
performed in that month.
-16-
16
Lawrence's argument on the basis of these documents
has some surface appeal. Closer scrutiny, however, reveals
that it begs the question. We first note that Lawrence does
not argue that employees listed on the April 21, 1988,
memorandum were targeted on the basis of their performance
ratings. However, even if we assume arguendo that this was
________
the case, and even if we assume that the liability documents
were created in response to the April 21, 1988, memorandum,
and even if we accept that they reflect that Lawrence indeed
was targeted for layoff at a time when he did not have the
lowest performance evaluation among his peers, such facts do
not tend to prove age discrimination on Northrop's part.
Lawrence does not allege, nor does the record indicate, that,
at the time these documents were created, at least one
younger associate program manager with an identical or lower
_________ _______ _______
performance rating than Lawrence was not targeted for
___
layoff.11 Put another way, Lawrence has neither alleged
nor demonstrated that there existed at least one younger
associate program manager with an identical or lesser
performance rating whose name did not appear on the April 21,
1988, memorandum.12 As we stated above, it is the
____________________
11. The fact that three individuals in his unit may have had
__ ___ ____
lower ratings does not undermine this point.
12. The record reflects that Lawrence was afforded full
discovery rights and provided with access to the
documentation that should, through diligent investigation,
have revealed the existence of any such person.
-17-
17
plaintiff's burden at stage three of the McDonnell Douglas
_________________
framework to present sufficient evidence for a rational
factfinder to infer discriminatory animus on the part of the
employer. See Mesnick, 950 F.2d at 823. Without more,
___ _______
Lawrence's contention that he was targeted for layoff at a
time when he did not have the lowest performance rating among
his peers is insufficient to meet this burden.13
C. The Replacement of Lawrence with Piech
C. The Replacement of Lawrence with Piech
__________________________________________
Finally, Lawrence argues that Northrop's decision
to "replace" him with the younger Piech was discriminatory.
Leaving aside the question of whether this replacement ever
took place, we note that Lawrence does not allege, let alone
demonstrate, that Piech possessed qualifications roughly
similar to his own.14 Such a demonstration is, however,
part of the prima facie showing a discrimination plaintiff
must make when alleging that his/her replacement violated the
____________________
13. Nor can the fact that the three oldest associate program
managers in Organization 4000 were targeted for layoff itself
be viewed as giving rise to an inference of age
discrimination. Northrop was in the midst of a significant
force reduction by mid-1988. Indeed, twenty-one people from
Lawrence's department were either terminated or transferred
at the time of the September 2, 1988, layoff. In the face of
such sweeping and comprehensive personnel changes, and where
there has been no allegation or demonstration that at least
one younger and identically or lower rated associate program
manager was not targeted for layoff, we simply do not view
the aforementioned targeting as being so inherently
suspicious as to mandate a trial.
14. We further note that the record indicates that Piech's
qualifications were superior to those of Lawrence.
-18-
18
ADEA. See Connell, 924 F.2d at 1172. Thus, in the context
___ _______
of this case, we do not view Northrop's alleged replacement
of Lawrence with Piech as significantly probative of age
bias.
V.
V.
__
CONCLUSION
CONCLUSION
In sum, we do not find persuasive Lawrence's
assertion that there exists sufficient evidence in this
record for a reasonable factfinder to infer that Northrop's
decision to discharge him was motivated by age
discrimination. Accordingly, we agree with the district
court that Lawrence failed to carry his burden at step three
of the McDonnell Douglas burden-shifting framework, and rule
_________________
that summary judgment properly was entered in Northrop's
favor.
Affirmed. Costs to appellee.
Affirmed. Costs to appellee.
____________________________
-19-
19