USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1727
FRANK B. WOODMAN,
Plaintiff, Appellant,
v.
HAEMONETICS CORPORATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
___________________
____________________
Torruella, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Stuart DeBard for appellant.

_____________
Jeffrey M. Hahn, with whom Foley, Hoag & Eliot was on
_______________
___________________
appellee.

brief

____________________
April 14, 1995
____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________
from

district

Haemonetics

court

Plaintiff Frank B. Woodman appeals

order

Corporation ("HC"),

dismissing his claim

granting

summary

Woodman's former

for wrongful discharge

crimination in Employment Act ("ADEA").

court judgment and remand for factfinding.

judgment

for

employer, and

under the Age

We vacate the

Dis-

district

I
I
BACKGROUND1
BACKGROUND
__________
Woodman was hired by
eight.

HC in January 1981 at

age forty-

For ten years he worked as a machinist, primarily in HC's

machine shop at Holbrook,

ment as a machinist
reviews.

He

was

Massachusetts.

Throughout his employ-

he consistently earned favorable performance

promoted twice,

increases from $5.28 per

receiving commensurate

hour as a Machinist Trainee,

wage

to $11.75

per hour as a Machinist B.

In December

1990,

at

age

fifty-seven,

Woodman

was

transferred to the "bowl department" in Braintree, Massachusetts,

where HC manufactures disposable components for medical equipment

designed to

facilitate the collection, separation

of blood and blood constituents.

tured in the

and cleansing

The medical equipment manufac-

bowl department is fabricated under

sterile condi-

tions in a controlled-access area known as the "clean room."

____________________

1The essential facts are recited in the light most favorable

to appellant Woodman, the party resisting summary judgment.
Velez-Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874 (1st Cir.
___________
______________________
1993).
2

On
performance
LeBlanc.

January

24,

report from

1991,
his

Woodman

bowl

received

flawless

department supervisor,

Mary

Not only did he earn the highest possible rating in all

six review categories, but LeBlanc commented:

joining bowls has

been exceptional.

"[Y]our work since

You have

made a

positive

contribution in work and in adapting to change."

Thereafter,

in

late

1991,

LeBlanc

department.

Lucas

line tasks

"material handling" (i.e., retrieving raw materials

began training

use in the clean

of Woodman

favorable
that

than the

Woodman in

room) and "bowl

the finished product).

supervisor in

in late

LeBlanc report,

bowl

two non-assembly

packing" (i.e., packaging

The record discloses but

by Lucas,

the

was

Rick

review

Woodman's

Mary

succeeded by

for

Lucas as

March

one performance

July 1991.
the Lucas

Though less

report indicated

Woodman was performing at an acceptable level.

Woodman was

rated "exceptional" in terms of dependability and "above average"

in terms of both customer/supplier relations and quality of work.

In no category did Woodman receive a rating lower than "average."

Lucas added, "Frank is a highly organized, consistent performer."

John Barr became Vice President of Operations for HC in

mid-September

1991.

Shortly thereafter,

managers to reevaluate their

on

flexibility (i.e.,

Barr directed

all HC

employees, with particular emphasis

susceptibility to

cross-training and

to

multiple production-line responsibilities), reliability, participation (i.e., the capacity

to provide suggestions and contribute

to improved operational efficiencies) and quality and quantity of

3

work product.

The

mance

on Woodman

rating

record on appeal
under

Vice

does not reflect a

perfor-

President Barr's

revised

performance review procedure in the fall of 1991.

clear, however,
ratings

that many

HC employees did

considered unacceptable

also discloses that Barr

by Barr.

The record is

receive performance
The

record evidence

determined that HC could terminate

its

"C performers" without jeopardizing its production, while dramatically reducing labor costs.
Sometime in the fall of
supervisory

role over

this same time,

1991, Mary LeBlanc resumed her

Woodman in the

LeBlanc was

bowl department.

privy to at

least one

among members of HC's upper management, in which

terminations were discussed.
the

presence

of

discussion relating

Woodman,

Following such
LeBlanc

discussion,

future employee

a meeting, and

referenced

to future terminations:

Around

the

in

management

"These damn people

they want younger people here.

will

be

successful here."

They will be the one[s] that

Woodman's

affidavit attests

that

LeBlanc made similar statements on several occasions.

During the time that HC's management was deciding which

employees were to
randum,

dated

November

performance as
"since

be terminated, Mary LeBlanc

15,

1991,

submitted a memo-

describing

Woodman's

having been unsatisfactory throughout

July 1991."

work

the period

The November 15 memorandum made no reference

to the performance review

by Lucas in late

July 1991.

LeBlanc

described Woodman as an "unmotivated worker" who "would prefer to

sit in the Bowl Prep

area and read for extended periods

of time

up to several
routinely
sterile

hours."

She noted further

that Woodman was slow,

requiring a minimum of thirty minutes to dress for the

conditions

procedures

should

reported that

in the

clean

take no

longer

Woodman possessed

perform 50% of line

only be assigned

room,

whereas the

than ten

minutes.

limited skills:

jobs in the

LeBlanc

"Frank cannot

operations to standard requirement.

2 off line

requisite

He can

clean room, where

his

performance will not affect production quantities."

she

stated, despite

operations,

his

Woodman's

inability

training

to

perform those

satisfactory manner had led to

ing

efforts.

on most

Furthermore,

assembly-line

operations

in

the abandonment of further train-

LeBlanc concluded:

"I recommend Frank be relieved

from his current duties."

Five
thirty-three

days
HC

later, in

employees

reduction

were terminated;

Woodman, were bowl department

employees.

cal evidence

demonstrating that

employees in

the bowl

reduction in

force; viz., 41%

___

in force

("RIF"),

twelve,

including

HC presented statisti-

the ratio of

older to

department increased slightly

over age

younger

during the

40 before the

RIF; 44%

after the RIF.2

Woodman
termination on
that

received

November 20,

it could "eliminate a

written

notice

which advised
group of its

of

his

that HC had

immediate

decided

poorest performers and

____________________
2However,

since the company-wide data neither support nor

____________
undermine the contention that the RIF had no discriminatory
impact, additional information would be needed to draw any
pertinent conclusion from these data.
5

still

meet

the production

plan."

Later,

Massachusetts Department of Employment

HC reported

to the

Training that Woodman was

discharged as part of a reduction in force involving the company's "poorest performers."

On March 2, 1993, Woodman initiated the

present suit in federal

district court, alleging age discrimina-

tion in violation of the ADEA.

In due course, the statement attributed to Mary LeBlanc

by the Woodman
for

summary

affidavit submitted in opposition to

judgment was

excluded

inadmissible "totem-pole" (i.e.,

____

the district

multiple) hearsay,

on a motion for summary judgment."

that though Woodman

by

court

as

"unavailing

The court went on to conclude

had made out a prima facie

crimination, HC had rebutted

HC's motion

case of age dis-

the resulting presumption of unlaw-

ful age discrimination by producing enough evidence, if credited,

to

enable a rational trier

basis

for

Woodman's

Ultimately,
the

missible

dismissal; viz.,
___

find a nondiscriminatory
poor

work

performance.

the district court awarded summary judgment to HC on

ground that

sufficient to

of fact to

Woodman

had not

proffered competent

generate a trialworthy issue as

age-based

discrimination

factor in the dismissal.

to whether imper-

constituted a

Woodman appealed.
II
II
STANDARD OF REVIEW

evidence

determinative

STANDARD OF REVIEW
__________________

We examine a grant of summary judgment de novo, viewing

__ ____
the
light

evidence, and

all reasonable

most favorable

to the

inferences therefrom,

party resisting

in the

summary judgment.

O'Connor
________
114
"the

v. Steeves, 994 F.2d 905, 907 (1st Cir.), cert. denied,

_______
____ ______

S. Ct. 634 (1993).

pleadings,

Summary judgment is inappropriate unless

depositions,

admissions on file,

together with the

that there is no genuine

the moving party

answers to

interrogatories,

affidavits, if any,

issue as to any material fact

is entitled to a judgment as

and

show

and that

a matter of law."

Fed. R. Civ. P. 56(c); Henley Drilling Co. v. McGee, 36 F.3d 143,

___________________
_____
144 (1st Cir. 1994).
in favor of the

No credibility assessment may

party seeking summary judgment.

be resolved

Velez-Gomez v.
___________

SMA Life Assurance Co., 8 F.3d 873, 877 (1st Cir. 1993).
______________________
III
III

DISCUSSION
DISCUSSION
__________
A.
A.

The Burden-Shifting Paradigm

The Burden-Shifting Paradigm
____________________________
The

burden-shifting

Douglas Corp. v.
_____________
Douglas"],
_______

framework announced

Green, 411 U.S. 792,

_____

and imported for use

SER-Jobs for Progress, Inc., 19

____________________________

802-04 (1973) ["McDonnell

_________

in ADEA cases,

see Keisling v.
___ ________

F.3d 755, 760

(1st Cir. 1994);

LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st

_______
___________________
cert.
____

denied,
______

114

S. Ct.

production and orders

gressively

to

1398

(1994),

the presentation of

sharpen

the

inquiry into

question of intentional discrimination."

ty Affairs
__________

v. Burdine,
_______

450 U.S.

in McDonnell
_________

allocates

Cir. 1993),

burdens of

evidence so as
the

elusive

"pro-

factual

Texas Dept. of Communi_______________________

248, 255 n.8

(1981); see
___

St.
___

Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2746 (1993).

_________________
_____
At

the first

Woodman was required

stage in

the McDonnell Douglas matrix,

__________________

to make a prima
7

facie showing that

he (1)

was at least forty years old, (2) met HC's legitimate job performance
and
___

expectations, (3)
(4) since the

experienced adverse

employment action,

challenged action was part

of a reduction in
_________ __

force, that HC did not treat age neutrally or it retained younger

_____
__
persons in
Boston,
______
842.

the same position.

Goldman
_______

985 F.2d 1113, 1117 (1st

v. First Nat'l Bank of

____________________

Cir. 1993); LeBlanc, 6 F.3d at

_______

The required prima facie showing is not especially burden-

some, see Greenberg v. Union Camp Corp., No. 94-1312, slip op. at
___ _________
________________
4 (1st

Cir. Feb. 17, 1995); Smith

_____

v. Stratus Computer, Inc., 40

______________________

F.3d 11, 15 n.4 (1st Cir. 1994), and once established, gives rise
to a rebuttable
tional
(citing
Hicks,
_____
required

age-based

presumption that the employer

discrimination.

Goldman,
_______

Burdine, 450 U.S. at 254).

_______
the

rebuttable

conclusion

absence of explanation."
_______ __ ___________

ultimately
__________

unlawful

Hicks,
_____

985

F.2d at

1117

As Justice Scalia stated in

presumption

[viz.,
____

engaged in inten-

results

discrimination]

113 S. Ct.

at 2747

in
in
__

"a

the
___

(emphasis

added).
At the second stage

in the burden-shifting praxis, the

defendant-employer

must

produce sufficient

competent evidence,

"taken as true," to permit a rational factfinder to conclude that

_____ __ ____
______
there was a "nondiscriminatory reason," id. at 2748
___

(emphasis in

original), for the challenged employment action, thereby displac-

ing the legal presumption of intentional discrimination generated

by the
at

plaintiff-employee's prima facie case.

1117.

matters

Since
in genuine

neither credibility
dispute are

Goldman, 985 F.2d

_______

issues nor

to be

other factual

resolved under

it, "the

McDonnell Douglas framework . . . is no longer relevant" once the

_________________

defendant-employer has met its burden of production at the second

stage.

Hicks, 113 S. Ct.

_____

tion of
that

The attendant legal presump-

intentional discrimination having served

of "forcing

sponse"

at 2749.

the defendant

to come

it "drops out of the picture."

At

that point,

the

its purpose

forward with

some re-

Id.
___

defendant-employer's

motion

for

summary judgment
whom the

cannot succeed if the

plaintiff-employee, with

ultimate burden of persuasion

__________

remains throughout, Vega

____

v. Kodak Caribbean, Ltd., 3 F.3d 476,

______________________
proffered
by

478 (1st Cir.

sufficient admissible evidence,

a preponderance of the

prima facie case

_____ _____

if believed, to prove

evidence each essential

and that the

1993), has

element in a

employer's justification for

the

challenged employment action was merely a pretext for impermissible

age discrimination.

rely

Id. at 479.
___

upon the same evidence

crimination, provided it

The plaintiff-employee may

to establish both

pretext and dis-

is adequate to enable a

rational fact-

finder reasonably to infer that intentional age-based discrimina-

tion was a determinative factor in the adverse employment action.

Goldman, 985 F.2d at 1117-18.
_______
Where
combine with

the elements

the factfinder's

of a

sufficient prima

belief that the

facie case

ostensible basis

for dismissing the employee was pretextual, "particularly

.

accompanied by

permitted
_________
required

to
to

a suspicion

infer

the

enable the

of mendacity," the

intentional

age-based

plaintiff-employee
9

to

if . .

factfinder is

discrimination
prevail on

the

merits.
of

Hicks, 113
_____

the reasons

disbelief
together

is

S. Ct. at 2749 ("The

put forward
accompanied

by the
by

We conclude

of

the prima facie

discrimination.")

Friction Materials, Inc., 30

________________________

defendant (particularly

a suspicion

with the elements of

show intentional

factfinder's disbelief
____________

mendacity)

may,

case, suffice to

(emphasis added);

F.3d 255, 260 n.3 (1st

that Woodman made out

if

just such a case

Woods
_____

v.

Cir. 1994).

in the dis-

trict court, thereby precluding summary judgment for HC.

__________
B.
B.

Woodman's Prima Facie Case

Woodman's Prima Facie Case
__________________________

The district court correctly concluded that Woodman had

established a
crimination

prima facie
in

case of impermissible

employment.

At

age

age-based dis-

fifty-seven, Woodman

was

discharged as part of a reduction in force, while younger persons

were retained in the bowl
1117.

department.

See Goldman, 985 F.2d

___ _______

at

As the district court noted, the only substantial question

was whether Woodman had met the employer's legitimate job-performance expectations.

Woodman cleared this hurdle with his proffer

of substantial wage

increases and ten years

mance reviews, blemished by

of positive perfor-

but one negative performance evalua-

tion five
Woods,
_____

days prior

to

the reduction

30 F.3d at 261 (history

in force.

See,
___

e.g.,
____

of largely favorable performance

reviews and extensive experience in industry adequate to generate

at
meet

least a genuine
legitimate

(similar).

issue as to

plaintiff-employee's ability to

job expectations);

Keisling,
________

19

F.3d at

760

It then became incumbent upon HC to rebut the result-

10

ing legal presumption that the determining factor in its decision

to discharge Woodman was impermissible age-based discrimination.

11

C.
C.

HC's Rebuttal
HC's Rebuttal
_____________

At the second stage

______ _____
the

in the McDonnell Douglas analysis,

_________________

district court concluded

again correctly

that HC had

rebutted the legal presumption of intentional

age discrimination

with

performance

evidence

relating

to

joining the bowl department.

Woodman's
See
___

work

since

Hicks, 113 S. Ct. at 2748 ("By

_____

producing evidence (whether ultimately persuasive or not) of non________

discriminatory

reasons, [defendants]

production . . .
by HC, see
___

.").

Crediting the competent

id., Woodman's
___

performance in the

have been very good, but he never

the

bowl department.

sustained their

Thus, the

burden of

evidence adduced
machine shop

may

mastered the tasks required in

presumption

discrimination vanished from the case.

of unlawful

age

Id. at 2749; Vega, 3 F.3d

___
____

at 479.

In order to avoid summary judgment at that point it was

_____
essential that
generate

Woodman proffer sufficient competent

_________

a trialworthy

intentional age-based
in his dismissal.
First,

issue on

the ultimate

discrimination was a

Woodman attacked the

force

review of January 24,

nine months later

question whether

determinative factor

Id.
___

final performance evalua-

tion by Mary LeBlanc on November 15, 1991

reduction in

evidence to

by contrasting the
1991, with the

five days before the

laudatory performance

final review

less

than

in which LeBlanc's assessment plummeted from

high praise to a

recommendation that Woodman be relieved

current duties.

The Woodman affidavit itself attested

of his

to facts

12

directly contradicting several key

her final work

performance evaluation.

ments from a former supervisor

group leader

in

the

quality of his work.

affidavit asserted
following

assertions made by LeBlanc in

He

also tendered state-

in the machine shop and a

bowl department,

attesting

Second, and most importantly,

to

former

the

high

the Woodman

that Mary LeBlanc had stated in his presence,

meeting with

upper

implemented its reduction in

want younger people

here.

management

force:

shortly before

"These damn people

They will be the

HC

they

one[s] that will be

successful here."
Under

the summary judgment

McDonnell Douglas
__________________
Hicks, 113 S.
_____
consider

framework dropped

Ct. at

analysis required once the

out

2749, the district

whether Woodman

of

the picture,

court was required

presented sufficient

see
___

to

competent, i.e.,
_________ ____

admissible,
Dist.,
_____

evidence,

see Murphy
___ ______

v. Timberlane Regional Sch.

_________________________

22 F.3d 1186, 1196 (1st Cir.) (citing Anderson v. Liberty

________
_______

Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied,

___________
____ ______
484 (1994), to warrant
unlawful age-based

discrimination was a

his dismissal by HC.

court excluded
judgment
LeBlanc
D.
D.

question whether

determinative factor in

It was at this juncture that

the linchpin

the vicarious

the district

in Woodman's opposition
admission that Woodman

to summary

attributed to

as inadmissible "totem-pole" hearsay.

Woodman's Demonstration of Pretext

Woodman's Demonstration of Pretext
__________________________________
The

fers

a trial on the ultimate

115 S. Ct.

made by

twofold thrust implicit

Woodman was

that the

in the evidentiary prof-

November 15,

1991, LeBlanc

13

memorandum

severely

denigrating

his

work

pretext for unlawful age-based discrimination

as indicated not only
but

by the

performance

was

on the part of HC,

by Woodman's own work-performance evidence

vicarious HC

admission, through

LeBlanc,

that new

management disfavored older employees.

The factfinding inquiry into pretext focuses on "whether

the

employer believed
________ ________

its

Goldman,
_______

985 F.2d

at 1118

(emphasis

added).

Thus,

vicarious admission made

factfinder
inference

would be
that

(quoting Mesnick,
_______
Woodman's

articulated

113

S.

Ct. at

at 824)

including

the

if credited by

the

justification

a reasonable
for

Woodman's

pretext for intentional age discrimination,

highly unfavorable

memorandum five days

be credible."

950 F.2d

evidence,

through LeBlanc

but also to generate a grave "suspicion

the

to

adequate not only to permit

______

HC's

dismissal was a mere

stated reason

performance rating

prior to Woodman's

2749.3

of mendacity" respecting

Consequently,

made in

dismissal.
the putative

the LeBlanc
See
___

Hicks,
_____

vicarious

____________________

3The statistical evidence presented by HC, in an effort to

show that older workers as a whole were not more severely affect___
ed by the reduction in force, is clearly relevant and might
strengthen the employer's defense.
See Healy v. New York Life
___ _____
_____________
Ins. Co., 860 F.2d 1209, 1217 (3d Cir. 1988), cert. denied, 490
________
____ ______
U.S. 1098 (1989) (disparate treatment claim); see also Connecti___ ____ _________
cut v. Teal, 457 U.S. 440, 454 (1982) ("[A] nondiscriminatory
___
____
'bottom line' and an employer's good-faith efforts to achieve a
nondiscriminatory work force, might in some cases assist an
employer in rebutting the inference that particular action had
been intentionally discriminatory."). But by itself, rarely will
an employer's statistical evidence relating to company-wide
workforce composition provide a conclusive defense against a
disparate treatment discrimination claim at summary judgment
where the employee has established a prima facie case and pretext
accompanied by a suspicion of mendacity. See Healy, 860 F.2d at

___ _____
1218 (expressing skepticism concerning conclusiveness of employe14

admission

by

HC, through

determination whether
matter of law.
(i)
(i)

HC was entitled

to our

de novo
__ ____

to summary judgment

as a

The Vicarious Admission

The Vicarious Admission
_______________________
HC argues that the

within Evidence

decisions.4

not contemplate

excluded statement does

Rule 801(d)(2)(D) because

only a "first-line" supervisor, with no

nation

crucial

See Goldman, 985 F.2d at 1116.

___ _______

On appeal,
not come

LeBlanc, is

LeBlanc was

authority to make termi-

However that may be, Rule 801(d)(2)(D) does

as HC seems to

suppose

that the statement

be shown to have been made by the employee at the instance of her

employer, compare Fed.
_______
801(d)(2)(D),

R. Evid. 801(d)(2)(C) with

____

but only

that

matters within the scope

Evid.

801(d)(2)(D).

the declarant's

of her agency or

See,
___

Fed. R. Evid.

statement concern
_______

employment.

Fed.

R.

e.g., Union Mut. Life Ins. Co. v.

____ ___________________________

____________________

r's uncontested data showing no change in workforce composition,

both department-wide and company-wide, after reduction in force);
see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978)
___ ____ ____________________
______
("A racially balanced work force cannot immunize an employer from
liability for specific acts of discrimination.") (disparate
treatment claim); Teal, 457 U.S. at 455 ("Congress never intended
____
to give an employer license to discriminate against some employees . . . merely because he favorably treats other members of the
employees' group.") (disparate impact case).
4Rule 801(d)(2)(D) states that
[a] statement is not hearsay if . . . [the]
statement is offered against a party and is
. . . . a statement by the party's agent or
servant concerning a matter within the scope
__________
of the agency or employment, made during the
existence of the relationship.
Fed. R. Evid. 801(d)(2)(D) (emphasis added).
15

Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986); Hoptowit v. Ray,
______________
________
___
682 F.2d 1237, 1262 (9th Cir. 1982).
The record reflects that

LeBlanc was acting within the

scope of

her

employment

meeting,

(ii)

assessing

in (i)
the

attending

performance

the
of

HC

management

bowl

department

employees under her supervision (including Woodman), and (iii) in

___
recommending that Woodman be relieved from his duties.

Thus, the

circumstantial

affidavit

provided

evidence

proffered

plainly sufficient

in

the

Woodman

foundation,

see
___

Fed. R.

Evid.

103(a)(2), for finding both that LeBlanc was directly involved in

the reduction in force and

that the excluded statement concerned

matters within the scope of her employment.

suggestion

is belied by HC's

performance

evaluation as

decision

to

terminate

evidence

proffered in

firm reliance on LeBlanc's adverse

the principal

Woodman.
the

justification

Finally,

the

Woodman affidavit

excluded statement itself reflects,

communicating to

Indeed, any contrary

for its

circumstantial

attests, and

the

that LeBlanc purported to be

Woodman information acquired at

the HC manage-

ment meeting.
We conclude
reflect that

that

though

LeBlanc's description

toward older workers

the

Woodman

of HC management's

was predicated on

more than one

made at the management meeting in LeBlanc's

ment
truth.
1990)

to Woodman

was not

affidavit

hearsay, even

may
___

attitude

statement

presence, her state-

though offered

for its

See Hybert v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir.
___ ______
____________
(finding

no error

where

trial
16

court,

in ADEA

action,

admitted into evidence the

ordinate
that

statement

to sub-

that "it's a concern of some of the guys in New York

some

of

our

people in

replaced"); see also Brookover

___ ____ _________
893

made by manager

F.2d

411,

417-18

are

going

1990)

(holding

to be

that nurses'

should have been used on

scope of nurses'

Ins. Co., 793 F.2d at 8-9

________

sixties

v. Mary Hitchcock Memorial Hosp.,

_____________________________

(1st Cir.

statements that bed restraints

were made within

their

patient

employment); Union Mut. Life

________________

(holding that statement by lower level

accountant, charged with preparing billings relating to employer's leases, concerned matter
ment, in

circumstances

statement
sion
tiary
upon a

within scope of accountant's employ-

where information

was based was located in

within the scope of

upon which

file in accountant's posses-

employment).

Accordingly, the eviden-

ruling constituted an abuse of discretion, as it was based

misapplication of

Rule 801(d)(2)(D)

and

resulted in

denial of Woodman's right to trial on the ADEA claim.

v. American Honda Motor Co., Inc., 921
________________________________
1990).

proffered

F.2d 15,

See Siegal
___ ______

17 (1st

Cir.

IV
IV
CONCLUSION
CONCLUSION
__________
A

rational factfinder could

ously excluded
provided

non-hearsay statement attributed

cogent

impermissible

conclude that the errone-

evidence

probative

not only

age-based discrimination

on the

to Mary LeBlanc
of

pretext

part of

and

HC, see
___

Goldman, 985 F.2d at 1117-18 (plaintiff-employee may rely on same

_______
evidence

to prove both pretext

and discrimination), but also of

17

the untruthfulness of the

______________
preceding
We

LeBlanc performance review immediately

Woodman's dismissal.

express no

view

course, except to

See
___

whatever on

note that at

Hicks, 113 S.
_____

these

877.

HC

was not

credibility issues,

summary judgment such

were to be resolved in favor of Woodman.

at

Ct. at 2749.

entitled to

of

questions

See Velez-Gomez, 8 F.3d

___ ___________

summary judgment,

given the

competent

evidentiary proffer

discharging
age-based

Woodman was
discrimination.

that its

an untruthful
See
___

articulated

reason for

pretext for

Hicks, 113
_____

S.

intentional

Ct.

at

2749.

Consequently, the district court judgment must be vacated and the

ADEA claim must be remanded for factfinding.
The district court judgment is vacated.
The district court judgment is vacated.
________________________________________

The case is
The case is
____________

remanded for further proceedings consistent with this opinion.

remanded for further proceedings consistent with this opinion.
________________________________________________________________
Costs are awarded to appellant.
Costs are awarded to appellant.
______________________________

18