USCA1 Opinion

August 17, 1994

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-2296
JIMMIE E. WOODS,
Plaintiff, Appellant,
v.
FRICTION MATERIALS, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
ERRATA SHEET
ERRATA SHEET
The following references to "Mass. Gen.
changed to "Mass. Gen. L. ch. 93":

L. ch.

93A" should

Page
Page
Page
Page

5, first full , l. 9
6, l.10
8, l.11
20, l.5, l.7, l.17
____________________
_____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but
not participate in the drafting or the issuance of the pane
opinion.
The remaining two panelists therefore issue this opin
pursuant to 28 U.S.C.
46(d).

August 4, 1994

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________

No. 93-2296
JIMMIE E. WOODS,
Plaintiff, Appellant,
v.
FRICTION MATERIALS, INC.,
Defendant, Appellee.

____________
ERRATA SHEET
The opinion of this court issued on July

29, 1994, is amended

follows:
Page 15, second line

from the bottom

of the page:

after "than."

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit

Delete

"t

____________________

No. 93-2296

JIMMIE E. WOODS,

Plaintiff, Appellant,

v.

FRICTION MATERIALS, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Before

Breyer,* Chief Judge,

___________
Boudin and Stahl, Circuit Judges.
______________

____________________

Frederick T. Golder with whom Bernstein, Golder & Miller P.A.

___________________
________________________________
on brief for appellant.

Samuel A. Marcosson, James R. Neely, Jr., Gwendolyn Young Rea

____________________ ____________________ ___________________
and

Vincent J.
Blackwood
_______________________

were

on

brief

for

Equal

Employm

Opportunity Commission, amicus curiae.

Dan T. Carter with
_______________

whom

James Allan Smith,

___________________

Smith, Currie
_____________

Hancock, Richard W. Gleeson, and Gleeson & Corcoran were on brief

_______ ___________________
__________________
appellee.
____________________
July 29, 1994
____________________

_____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but
not

participate

opinion.

The

in

the drafting

or

the

remaining two panelists

pursuant to 28 U.S.C.

issuance

therefore issue

pane

this opin

46(d).

STAHL, Circuit Judge.

_____________

Plaintiff

Jimmie

filed a complaint charging defendant Friction

("FMI") with

of the

illegal race, age,

E.

Woods

Materials Inc.

and handicap discrimination

in violation of state and federal law.

Woods now appeals the

district court grant of summary judgment in favor of FMI.

We

affirm.
I.
I.
__
FACTUAL FINDINGS AND PRIOR PROCEEDINGS
FACTUAL FINDINGS AND PRIOR PROCEEDINGS
______________________________________
Woods, a 54 year-old, handicapped, African-American
male,

was employed between 1961

and 1986 by

PT/BT, a small

group

of

interrelated

brake

Lawrence, Massachusetts.
was promoted twice, to
to

the position

the position of foreman in

of supervisor

assets of PT/BT.

companies

in

During his tenure with PT/BT, Woods

wholly owned subsidiary

the

manufacturing

in 1970.

In

1968, and

1986, FMI,

of Echlin, Inc. ("Echlin")

acquired

Thereafter, Wood continued working at

FMI as a production foreman without a break in service.

In

February of

financial

condition of

president

and

Echlin

1987, Echlin, concerned

the

newly formed

manufacturing

appointed

position at FMI,

Patrick

manager.

Healey

that of division

leadership, FMI began to

FMI, fired
Three

to

about the

the

manager.

days

top
Under

FMI's
later,

managerial
Healey's

retool and update its manufacturing

processes.

-22

As
production

result,

foremen in

Woods

and

the

the block-making

other

three

FMI

department (Richard

Bond, a 45 year-old
old

caucasian male, Paul Harris, a

African-American male,

African-American

male)

and Peter

experienced

duties and

responsibilities.

to

more

expect

position

from

PT/BT.

its employees

Deposition of

reorganization began,

initially

gave Woods

the

supervisor's

had been

J. Woods at 28.

when he
After the

in the block-

poor performance

a non-supervisory position.

in

which Superintendent

an overall rating of

In

1988,

opinion of his
minute

than it

their

Woods

fared well at FMI, as evidenced by a November 1987

written evaluation

five.

and

in

Woods, FMI began

was terminated for

was demoted to

50 year-old

increase

of the four supervisors

making department, Bond

and Lane

an

According to

became more complicated

worked at

Lane, an

65 year-

work had

review,

manufacturing

however, Woods

Valentin

Valentin

three on a scale
learned

diminished.
told

Elvin

Woods

In a
that

that

of one to
Valentin's

ten to
both

fifteen
he

and

manager Ray Shaffer (Woods' direct supervisor)

felt that Woods was not performing up to his capability, that

he needed to improve his scheduling and interpersonal skills,
and that he would not be receiving a raise. Id. at 47-49.
___
In October
related automobile
Woods

1988, Woods
accident.

The

was injured in

a non-work

resulting injuries forced

to take an extended medical leave of absence from FMI.

-33

By

the end

of

medical and
return

February 1989,

vacation

to work.

employees who
their leave

Woods

leave time

and

had used

all of

still was

unable

his
to

Pursuant to FMI's policy of terminating all

are unable

to

work after

the expiration

time, notwithstanding the ongoing

ailment, FMI terminated Woods.

of

nature of the

Woods does not

challenge his

termination.
By
work.

1989, Woods

In late 1989,

was physically

able to

FMI began interviewing

return to

candidates for

the position of production foreman for a new production line.

Woods, along with approximately seventy-four
for one

of four

applicants,

available positions.

personnel

manager

Arthur

interview eight, including Woods.

interviewed
Warren

by

Kappeler

candidates

two
and

on their

of

FMI's

Garnet

the seventy-five

McKew

decided

to

The eight applicants were

production

Wilson1,

manufacturing and

and comprehension, supervisory

Of

others, applied

who

superintendents,
evaluated

the

production knowledge

skills, and general demeanor.

____________________
1.
by

Wilson replaced Valentin who, in July 1989, was arrested

the Massachusetts State Police and terminated from his

employment for theft of FMI funds. McKew aff. at 2. This is

only important because of Woods' allegation that Valentin
made racist remarks to Woods while they worked together.
Valentin, however, played no role in FMI's decision not to
hire Woods since he was no longer employed by the company
when the employment decisions were made. See Medina-Munoz v.
___ ____________
R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990)
__________________________
("The biases of one who neither makes nor influences the
challenged personnel decision are not probative in
an
employment discrimination case.").
-44

Both Kappeler and

Wilson assessed Woods' supervisory

and understanding

of production

that on

balance these weaknesses outweighed

experience.
McKew stated
based

processes as weak

Both

that he

upon the

evaluations.

men recommended that

ultimately decided

interviews and

skills
and felt

Woods' years of

Woods not be
not to

Woods' previous

hired.

hire Woods
performance

In his deposition, McKew conceded that although

Woods could have filled one of the open positions, he was not
hired because there
qualified.
younger,
that he is

The

were others

positions

who he found

were thereafter

non-handicapped, caucasian

males.

unaware of the qualifications

to be
filled by

better
four

Woods concedes

possessed by those

ultimately hired.
On March 19, 1990, Woods filed a complaint with the
Massachusetts Commission Against Discrimination ("MCAD").
May

7,

1990,

complaint
County
with

Woods

in the

Superior

of Middlesex.
age

seq.,
____

handicap

and

In

by

with

violation

age and/or

discrimination in

Massachusetts,

race

filing

Massachusetts for

of

U.S.C.

and/or

violation of

a
the

charged FMI

the Federal

Employment Act ("ADEA"), 29

After removing
in

action

his complaint, Woods

151B and Mass. Gen. L. ch. 93

court

this

Court of

discrimination in

Discrimination and
et
__

commenced

On

Age
621

color

and/or

Mass. Gen.

L. ch.

102 and 103.

the action to
FMI

filed a

the federal district

motion

for

summary

-55

judgment

on all claims, claiming that Woods had not made out

a prima facie case of discrimination because he had not shown

that

he was qualified for

alternative, that

the position sought,

FMI's decision not to hire

and, in the

Woods had been

made for
better

nondiscriminatory reasons,
qualified.

Woods filed

i.e., those hired

a motion in

were

opposition.

On

October 1, 1993, the district court issued a written order in

which

it awarded

that although
had

failed

summary judgment

Woods had established

to

allege

Mass. Gen. L. ch. 151B.

claim under

Mass. Gen.

favor, finding

a prima facie

sufficient

articulated nondiscriminatory

Woods'

in FMI's

facts

reasons

to

case, he

rebut

under both

FMI's

ADEA

and

The district court further held that

Mass. Gen.

L. ch. 151B.

L. ch.

93 was

preempted by

It is from this judgment that Woods

now appeals.
II.
II.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
We review grants of

summary judgment de novo, and,

__ ____

like the district court, are obliged to review the facts in a

light

most favorable

to the

non-moving party,

inferences in the non-moving party's favor.

Am. Ins. Co., 6 F.3d 836,
____________
114 S. Ct. 1398 (1994).

on file,

LeBlanc v. Great
_______
_____

841 (1st Cir. 1993), cert. denied,

____ ______
Summary judgment is appropriate when

"the pleadings, depositions,

admissions

drawing all

answers to interrogatories, and

together with

-66

the affidavits,

if any,

show

that there is no genuine

and that
matter

the moving
of law."

issue as to any material fact

party is
Fed.

entitled to a

R. Civ.

P.

judgment as

56(c).

"`[T]he

mere

existence of some alleged factual dispute between the parties

will not

defeat an

otherwise properly supported

motion for

summary judgment; the requirement is that there be no genuine

_______
issue of

material
________

fact.'"

(emphasis in original)

(quoting Anderson
________

Inc., 477
____

U.S.

Moreover,

summary judgment

cases
issue,

Medina-Munoz,
____________

242, 247-248

(1986)
may

896

at

v. Liberty Lobby,
_______________

(citations

be appropriate

omitted)).
"`[e]ven in

where elusive concepts such as motive or intent are at

. .

conclusory

if the

non-moving

allegations,

unsupported speculation.'"

party rests

improbable
Goldman
_______

896 F.2d

at 8).

"mandates the entry

upon
and

v. First Nat'l Bank of

____________________

Finally, Fed.

of summary

merely

inferences,

Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)

______
Munoz,
_____

F.2d

(quoting Medina_______
R.

judgment . .

Civ. P.

56(c)

. upon

motion

against a party
establish

the

who fails

to make a

existence of

an

showing sufficient

element

essential to

to
that

party's case, and on which that party will bear the burden of
proof at trial."

Celotex Corp. v. Catrett,

______________
_______

322-23 (1986).

477 U.S.

317,

III.
III.
____
DISCUSSION
DISCUSSION
__________

On
district court

appeal,

Woods

misapplied

claims,
the

inter
_____

respective

alia,
____
burdens

that the
of

the

-77

parties under both federal and state law.

More specifically,

Woods argues that the district court erred in ruling that the
burden
Corp.
_____

shifting framework

as

limned in

McDonnell Douglas
__________________

v. Green, 411 U.S. 792, 802-05 (1973) and expounded in

_____

St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993) (1)
________________________
_____

may require plaintiff to present more than a prima facie case

in order

to

survive

requires

the employer to do no more than simply articulate a

nondiscriminatory

a motion

reason for its

for

summary

employer's proffered reason

was a

pretext for
___

claims that the

federal

show not only that

was a pretext,

illegal discrimination.

district court erred

and state

claims

(2)

employment action, and (3)

requires plaintiff to present evidence to

the

judgment,

but that it

Moreover, Woods

in analyzing both

together under

the same

the

federal

standard and further erred in finding that Woods claims under

Mass.

Gen. L. 93

102 and

103 were preempted.

We address

each argument in turn.

A. Federal Claim
_________________
In
plaintiff

an ADEA

bears

the

factfinder that the

plaintiff

by

his/her age.
(1st

failure to
ultimate

hire
burden

discrimination suit,
of

persuading

the

employer illegally discriminated against

refusing to

hire

plaintiff on

the

basis of

See Lawrence v. Northrop Corp., 980 F.2d 66, 69

___ ________
______________

Cir. 1992).

age discrimination,

Where

there is little

direct evidence of

plaintiff may rely upon

-88

the three stage

burden-shifting
See
___

id. at
___

68;

framework

set forth

Goldman,
_______

985 F.2d

framework, plaintiff

in
at

McDonnell Douglas.
_________________
1117.

initially must establish

Under

this

a prima facie

case of discrimination, i.e., in a failure to hire situation,

plaintiff must show

that (1) s/he is a member of a protected

class, (2) s/he applied and was qualified for the position in
question, (3)
rejected,

that despite his/her qualifications,

and

(4)

that,

after

rejection,

remained open

and the employer continued

from

of

persons

the

McDonnell Douglas,
__________________

complainant's
411

U.S.

at

qualifications.
802.

Once

a prima facie case,

that

engaged

employer

discrimination.

See
___

position

to seek applicants

successfully establishes
the

the

s/he was

in

See
___

plaintiff

it is presumed

impermissible

Texas Dept. of Community Affairs

___________________________________

age
v.

Burdine, 450 U.S. 248, 254 (1981).

_______
In the

second stage, the employer

presumption by articulating a
reason for its

must rebut this

legitimate, non-discriminatory

decision not to hire plaintiff.

See Vega v.
___ ____

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

_____________________

"The

employer's

burden at this stage is merely one of production;

the burden

of persuasion remains plaintiff's

at all times."

Lawrence,
________

980

legitimate

the

presumption

F.2d

nondiscriminatory
created

at

reason

69.
is

Once

articulated,

by plaintiff's prima facie case disappears.

the third and final

Id.
___

At

stage, plaintiff must produce sufficient

-99

evidence,

direct

advanced

by

the

or

indirect,

employer

unlawful discrimination.
meet

this

employer's

burden, the
articulated

discrimination
action.

was

the

See Hicks, 113

___ _____

to show

that

the

constitute a

mere

pretext

See LeBlanc,
___ _______
claimant
reason

must prove
is

actual reason
S. Ct. at

6 F.3d at
both
____

reasons

842.

for
To

that the

false,

and

for

employment

its

2749 n.4.2

that

If plaintiff

"fails to show `pretext,' [for discrimination] the challenged

employment action

`must stand.'"

Id. at 2752

n.6 (quoting

___
McDonnell Douglas, 411 U.S. at 807).
_________________
Of course, the framework described above applies to
a full bench trial, as was the case in Hicks.
_____

As we noted in

____________________
2. Woods misstates the law when he argues without citing any
authority that "[i]f the plaintiff shows that an employer's
reasons are not credible, he resurrects the presumption of
unlawful discrimination, since in the absence of any known
reasons for the employers decision, courts presume that the
employer was motivated by discriminatory reasons." In Hicks,
_____
the Court addressed this precise issue and held that once the
defendant
has succeeded
production,

in carrying its burden of

the
McDonnell
Douglas
____________________
framework -- with its presumptions and
burdens -- is no longer relevant.
To
resurrect it later, after the trier of
fact
has
determined that
what was
`produced'
to
meet
the burden
of
production is not credible, flies in the
face of our holding in Burdine that to
_______
rebut the presumption `[t]he defendant
need not persuade the court that it was
actually
motivated by
the proffered
reasons.'
Hicks, 113 S. Ct. at 2749 (quoting Burdine, 450 U.S. at 254).
_____
_______
-1010

LeBlanc, however, the Hicks decision set forth the respective

_______
_____
burdens which

need to be met in order for a party to survive

a motion for summary judgment:

In the context of a summary judgment
proceeding, Hicks requires that, once the
_____
employer
has advanced
a legitimate,
nondiscriminatory basis for its adverse
employment
decision,
the
plaintiff,
before becoming entitled to bring the
case before the trier of fact, must show
evidence sufficient for the factfinder
reasonably
to
conclude
that
the
employer's decision to discharge him or
her
was
wrongfully
based on
age.
Goldman, 985 F.2d at 1117; Lawrence, 980
_______
________
F.2d at 69-70; Villanueva [v. Wellesley
__________
_________
College], 930 F.2d [124,] 127-28 [(1st
_______
Cir.), cert. denied, 112 S. Ct. 181
_____ ______
(1991)]; Connell [v. Bank of Boston], 924
_______
____ __ ______
F.2d [1169,] 1172 [(1st Cir.), cert.
_____
denied, 501 U.S. 1218 (1991)]. "Direct
______
or indirect evidence of discriminatory
motive may do, but `the evidence as a
whole . . . must be sufficient for a
reasonable factfinder to infer that the
employer's decision was motivated by age
animus.'"
Goldman, 985 F.2d at 1117
_______
(quoting Connell, 924 F.2d 1172 n.3).
_______
Thus, the plaintiff cannot avert summary
judgment if the record is devoid of
adequate
direct
or
circumstantial
evidence of discriminatory animus on the
part of the employer.
See id. at 1118
___ ___

(citations and footnote omitted).

LeBlanc, 6 F.3d at 843.3
_______
____________________
3. In its
amicus curiae brief,
the Equal Employment
Opportunity Commission (the "EEOC"), urges us to hold that
"an employment discrimination plaintiff may survive summary
judgment by establishing a prima facie case of discrimination
and showing a genuine issue of fact on the question of
whether the employer's asserted explanation for its actions
is worthy of credence." In other words, the EEOC would like
a blanket statement that
once evidence of pretext is
proffered, that evidence along with the prima facie case will
-1111

1. Stage One - Woods' Prima Facie Case

1. Stage One - Woods' Prima Facie Case
_______________________________________
We
evidence

agree

that

Woods

to establish a prima

has

provided

facie case.

As the district

court stated, Woods has shown that

[h]e is a member of [the] protected
class[] . . . within the meaning of
applicable law.
His long experience in
the industry and history
of largely
favorable reviews, and McKew's opinion
that he was qualified to fill one of the
____________________

sufficient

at all times shield plaintiff from adverse summary judgments.

The EEOC cites as authority the following passage from Hicks,
_____
in which the Court specifically noted that
[t]he
factfinder's disbelief
of the
reasons put forward by the defendant
(particularly if disbelief is accompanied
by
a
suspicion of
mendacity) may,
___
together with the elements of the prima
facie case, suffice to show intentional
discrimination.
Hicks, 113 S. Ct at 2749 (emphasis supplied).
We do not
_____
agree that the Court's language supports the EEOC's position.
Rather, this quoted statement simply makes clear that the
Supreme Court envisioned that some cases exist where a prima
facie case and the disbelief of a pretext could provide a
_____
strong enough inference of actual discrimination to permit
the fact-finder to find for the plaintiff. Conversely, we do
not think that the Supreme Court meant to say that such a
finding would always be permissible.
(For example, suppose
______
an employee made out a truly bare-bones prima facie case of
age discrimination, and the employer responded that the
employee lacked the necessary skills for the job. Suppose
also that unrefuted evidence showed that the response was a
pretext, because the employer had fired the employee to
conceal the employer's own acts of embezzlement. In such an
instance, there would be a prima facie case at the outset and
a disbelieved pretext, but we think it plain that no
reasonable jury could find age discrimination on such a
record.)
The strength of the prima facie case and the
significance of the disbelieved pretext will vary from case
to case depending on the circumstances. In short, everything
depends on the individual facts.
-1212

openings, has created at least a genuine

issue as to his ability to meet the
employer's
legitimate expectations.
Woods was denied a supervisory position
by FMI.
In addition, [FMI] has not
offered evidence to remove from dispute
the
issue whether
he is
about as
qualified as the individuals ultimately
hired.
Therefore,

we turn our attention to

FMI has satisfied

the question of whether

its burden of production by articulating a

legitimate non-discriminatory

reason

for refusing

to

hire

Woods.
2. Stage Two - FMI's Articulated Nondiscriminatory
2. Stage Two - FMI's Articulated Nondiscriminatory
___________________________________________________
Reason
Reason
______
FMI offers
Woods.

two interrelated reasons for not hiring

Basically, FMI contends that Woods was not

to hold a supervisory
and that

in the

position in the new and

alternative,

minimally qualified, that

ultimately hired.
the affidavits

even if

he was not

qualified

retooled FMI,

he was

found to

as qualified as

be

those

In support of these claims, FMI introduced

of Healey, McKew,

Wilson, and Kappeler.

In

his statement, Healey recounted the changes he implemented to

make FMI financially competitive in the market and why Woods'
prior

experience

was

not

indicative

of

his

ability

to

competently fill the updated position of productions foreman.

Among the

changes, he noted

that the production

foremen in

particular were
of their

given more responsibility

support systems

and that

while losing some

"[i]n essence, FMI

went

-1313

from a relatively simple operation to a complex manufacturing

system

with

requirements."

production

Affidavit of

that Woods "had

schedule

P. Healey at 8.

a limited technical

parts were manufactured

and

pre-planning
Healey stated

knowledge of how

brake

. . . . a limited ability to trouble

shoot and generally displayed limited inclination and ability

to

be innovative."

Id. at 5.
___

Healey further

opined that

Woods lacked "basic supervisory skills, including the ability

to plan work, to organize and to implement a production plan,
and

to motivate employees to

that he "had

a great deal of difficulty in

implementing the
and workforce

carry out the

plan," id., and

___
planning for and

coordination of the machinery, raw material

assignments necessary

mix and quantity required of his

to produce

the product

shift," id. at 9.
___

Attached

to

Healey's affidavit is a

evaluation, one which

his

copy of an

undated and unsigned

was never shared with Woods because of

accident and subsequent inability to return to work.

the evaluation, both Healey

performance in the second
Woods

In

and Shaffer rated Woods' overall

to lowest category, while awarding

the lowest grade with regard to enforcement of company

policies, acceptance of responsibility,

and decision-making.

Healey stated that as a result of this evaluation, management

intended to place

Woods on probationary status

prior to his

accident.

-1414

Kappeler and Wilson stated in their affidavits that

based

upon

their interviews,

unacceptable

candidate

because

his

of

weak

for

they
a

found

foreman

supervisory

Woods

position

skills

and

to be

an

with

FMI

lack

of

understanding of production processes, such as sequencing and

planning.

Both

men

rated

Woods

as

having the

supervisory skills of all those interviewed.

poorest

Affidavit of W.

Kappeler

at

earlier,

McKew

qualified.

2;

Affidavit of
also

stated

G. Wilson
that

Thus, we find that

non-discriminatory

reasons

those

at

1.

hired

As noted
were

more

FMI successfully articulated

for

not

hiring

Woods,

and

therefore carried its burden of production.

3. Stage Three - Pretext for Discrimination
3. Stage Three - Pretext for Discrimination
____________________________________________
Finally,
produced

we

must

determine

sufficient evidence

to

whether

raise a

Woods

genuine issue

has
of

material fact such as would permit a reasonable factfinder to

conclude

that FMI did not rely on its articulated reasons in

deciding

not

to

hire

Woods

and
___

discriminated against Woods because

the most obvious

FMI

unlawfully

of his age.

Of course,

and relevant piece of evidence

Woods could

introduce to contradict
best qualified for the
the

that

qualifications

FMI's assertion that he

was not the

position, would be evidence regarding

of those

hired.

Woods, however,

has

neither introduced their respective resumes, nor argued to us

that he

was unable

to obtain

this information through

-1515

the

normal

discovery

produced
more

channels.

appears

in

concludes, after admitting

qualifications of
experience

alone, a

brake

reasonable
or

only

evidence

qualified

facie

no knowledge of

he had twenty

infer

years of

that Woods

than those

basis of this

the

that the

who

was

were

as

hired.

be reasonable for

evidence coupled with

for

FMI's

decision not to hire Woods was because he was too old.

We do

not agree.

case

he
the

industry while

that it would

to infer, on the

where

Woods contends that on this basis

juror might

more

deposition

manufacturing

Furthermore, he contends

prima

own

those hired, that

in the

qualified

his

that he had

other applicants had none.

his

the

by Woods to show that the other candidates were not

qualified

juror

In fact,

Although Woods has

to permit

his

experience,

promotions
McKew's

2)

the

reluctant

admission

evidence

either to

one of

to determine that

favorable

received prior

to hold

evidence
he was

four positions on the basis

Woods

qualified

reason

presented enough

a reasonable factfinder

qualified to hold one of the

1)

actual

to

his

that

the four

rebut FMI's

evaluations

and

accident, and

Woods

was

3)

minimally

positions, there

assertion that

of

is no

those hired

were more qualified, or to suggest that FMI's decision not to

hire

Woods

was in

Because Woods
permit

any way

has failed

reasonable

driven

by illegal

age animus.

to present sufficient

evidence to

factfinder

to

infer

that

FMI's

-1616

articulated

reason

was

pretext

for

unlawful

age

discrimination, his claim under ADEA must fail.

B. State Law Claims
B. State Law Claims
____________________
1. Mass. Gen. L. ch. 151B
1. Mass. Gen. L. ch. 151B
__________________________
Next, Woods claims that

although Mass. Gen. L. ch.

151B4
employment

discrimination

according to the

claims

are

generally

federal burden shifting regime

analyzed

articulated

____________________
4.

Mass. Gen. L. ch. 151B

4 provides in relevant part:

It shall be an unlawful practice:

1.
For an employer, by himself or his agent,
because of the race, color, . . . to refuse to hire or employ
or to bar or to discharge from employment such individual or
to discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification.

. . . .
1B. For an employer in the private sector, by
himself or his agent, because of the age of any individual,
to refuse to hire or employ or to bar or to discharge from
employment such individual, or to discriminate against such
individual in compensation or
in terms, conditions or
privileges of employment, unless based upon a bona fide
occupational qualification.
. . . .
16. For any employer, personally or through an
agent, to dismiss from employment or refuse to hire, rehire
or advance in employment or otherwise discriminate against,
because of his handicap, any person alleging to be a
qualified handicapped person, capable of performing the
essential functions of the position involved with reasonable
accommodation, unless the employer can demonstrate that the
accommodation required to be made to the physical or mental
limitations of the person would impose an undue hardship to
the employer's business.
Mass. Gen. Laws Ann. ch. 151B
1994).

4 et seq., (West 1982 & Supp.

-1717

in

McDonnell Douglas,
_________________

Court
the

(the "SJC"), has

employer

interpreted
error

than the

the

Massachusetts

placed a more
burden

by this circuit.

for the district court

claims together,

and that

Supreme

Judicial

demanding burden upon

imposed

by federal

law

as

Thus, Woods argues that it was

to lump the

under the proper

motion for summary judgment must fail.

federal and state

standard, FMI's

It is well established
the ultimate

"that the `state courts are

expositors of state law' and the federal courts

are bound by the constructions placed

state

courts

absent extreme

Oliver, 607 F.2d

______
v.

Wilbur, 421
______

circumstances."

495, 500 (1st Cir.

U.S.

upon state statutes by

684, 691

Rundlett
________

v.

1979) (quoting Mullaney

________

(1975)).

Moreover,

it

is

equally well established that when interpreting Massachusetts

discrimination

statutes,

the

SJC

"may

look

interpretations

of analogous federal

bound thereby."

August v. Offices Unlimited, Inc., 981 F.2d

______
________________________

statutes, but

to

the

are not

576, 580 n.3 (1st Cir. 1992).

While

the SJC

Douglas
_______

analysis as a

Gen. L.

ch. 151B, it

treatment of
v.

has used

the

guide in deciding
has been somewhat

defendants.

In the

three-part McDonnell
_________
claims under Mass.
more severe in

its

oft-cited Wheelock College

________________

Massachusetts Comm'n. Against Discrimination, 355 N.E.2d

_____________________________________________

309 (Mass. 1976), the SJC acknowledged that McDonnell-Douglas

_________________
merely required the employer

to articulate a legitimate non-

-1818

discriminatory reason for its

to say under ch.
of

this

facts

of the

went on

151B, "that articulating a reason

kind requires

evidence

action; but the court

the

employer

reason for its

in support

of that

to produce

action but

reason."

in cases
not

only

also underlying

Id. at 313-14.
___

Other

Massachusetts cases follow the same course.5

All this, however, is
because

even

followed

under the

more demanding

in Massachusetts,

articulate

which those

reason.

FMI

It has

a contemporaneous

more than

offered three

merely

affidavits in

assessment that Woods

qualified as the four men

ultimately hired;

evaluation of Woods

his skills that would presumably

record;

standard apparently

has done

concerned set forth their

was not as well

there is

academic in the present case

critical of

be admissible as a business

and there is an explanation from one of the affiants

that colorably explains how Woods could have done an adequate

job for

number of

qualified for

years

the more

new position in the

without being

especially

demanding tasks contemplated

upgraded company.

Whether or

well
by the

not these

____________________
5.

See,

e.g., McKenzie

v. Brigham

and Women's

Hosp., 541

___
____ ________
___________________________
N.E.2d 325, 326 (Mass. 1989) (defendant must "advanc[e]
lawful grounds for the action taken and produce evidence of
___
underlying facts in support thereof") (emphasis added);
Trustees of Forbes Library v. Labor Relations Comm'n, 428
____________________________
_______________________
N.E.2d 124, 128 (Mass. 1981) (employer could not say merely
that employee was fired for breaking rules, but also "would
have to identify the rules and perhaps the occasions of their
violation, and offer some indication that it had considered
these
violations in
its
deliberations prior
to the
discharge").
-1919

materials

taken

company--the
said about the

together are

case would be a

substantial

stronger one if

qualifications of the four

of Woods--the materials certainly

case for

the

more had been

men hired instead

amount to some evidence in

support of the articulated reason.

Finally,

it does

not matter

whether Massachusetts turns out

by the EEOC rather
weight

reason

may

inference of discriminatory intent,

genuine

issue

of

fact

on

present case

to follow Hicks as construed

_____

than as we have

disbelieved

in the

the

construed it.
have

in

Whatever

supporting

an

Woods has not created "a

question

of

whether

the

employer's asserted explanation for

its actions is worthy of

credence."

The jury

See p. 11,
___

n.3, supra.
_____

might conclude

that Woods was at least minimally qualified based on his past

record, but there is no evidence that the employer's asserted
explanation--that it found four other men

better qualified--

is pretextual.
2. Mass. Gen. L. ch. 93
102 and 103.
2. Mass. Gen. L. ch. 93
102 and 103.
________________________________________
Lastly, Woods
in

finding that

claims

his Mass.

were preempted

argument, however,
Martin
______

claims that the district court erred

Gen. L.

by Mass.

is not

ch. 93

Gen. L.

supported

102

and 103

ch. 151B.

Woods'

in the

caselaw.

v. Envelope Div. of Westvaco Corp., No.

________________________________

30121-MAP,

1994 WL 162354, at

(collecting federal and state

*11 (D. Mass.

See
___

CIV. A. 92-

Apr. 29, 1994)

court cases holding that Mass.

-2020

Gen.

L.

ch.

151B

provides

the

exclusive

remedy

in

Massachusetts for employment related

see also DeFazio
___ ____ _______
103

discrimination claims);

v. Delta Air Lines, Inc., 849

_____________________

F. Supp. 98,

(D. Mass. 1994) (holding that the reasoning of state and

federal

cases

employment
Gen. L.

which

find

Mass.

Gen.

discrimination claims

ch. 151B

"applies with

to be

L.

ch.

102

preempted by

equal force to

discrimination] claims under Chapter 93,

93

Mass.

[employment

103").

In sum, we agree with the district court that

the adequacy of the remedies afforded
under Mass.
Gen. L. ch.
151B, the
efficiency
of a
uniform legislative
remedy, the importance of giving effect
to the procedural prerequisites of Mass.
Gen. L. ch. 151B, and the absence of
clear guidance from the Massachusetts
Supreme Judicial Court, all support the
finding that Mass. Gen. L. ch. 151B is
the exclusive state
law remedy
for
employment discrimination complaints.
Woods
_____

v. Friction Materials, Inc., 836 F. Supp. 899, 908 (D.

________________________

Mass. 1993) (citing Bergeson v. Franchi, 783 F. Supp. 713 (D.

________
_______
Mass. 1992)).
III.
III.
____
CONCLUSION
CONCLUSION
__________
For
district

the

court

defendant FMI is

foregoing

granting

reasons,

summary

Affirmed.
_________

the

judgment

order
in

of

the

favor

of

-2121