USCA1 Opinion

October 7, 1993

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 93-1050
THEODORE LEBLANC,
Plaintiff, Appellant,
v.
GREAT AMERICAN INSURANCE COMPANY,
Defendant, Appellee.
____________________
ERRATA SHEET
The opinion of this
amended as follows:

Court issued on September 29,

1993, is

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___ ___

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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1050
THEODORE L. LeBLANC,
Plaintiff, Appellant,
v.

GREAT AMERICAN INSURANCE COMPANY,

Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Walter M.
Phillips, Jr., with
whom Phillips and
Phel
___________________________
____________________
Sigmund J. Roos and Peabody & Brown were on brief for appellant.
_______________
_______________
Kalvin M. Grove with whom Joel W. Rice and Fox and Gro
_________________
_____________
____________
Chartered were on brief for appellee.
_________
____________________
September 29, 1993
____________________

CAMPBELL,
1990,

the

Senior Circuit Judge.

_____________________

defendant-appellee,

Great

On

October 19,

American

Insurance

Company ("Great American"), terminated its employment of

the

plaintiff-appellant, Theodore L. LeBlanc, who was then fiftynine

years old.

court

against

LeBlanc brought this action in the district

his

former

employer

Discrimination in Employment Act

634
The

(1985 & Supp.

district

to

the

("ADEA"), 29 U.S.C.

1993), and Mass.

court

pursuant

entered

Gen. L. ch.

summary

American's favor, and this appeal followed.

621-

151B,

judgment

Age

in

4.
Great

We affirm.

I.
JURISDICTION
JURISDICTION
Great American contends that
jurisdiction over LeBlanc's appeal

this court is without

from the district court's

order granting summary judgment in its favor.

argument,

it

is

necessary

to

understand

To follow this
the

procedural

history of this case.

The

district

granting summary
1992.

On

court

judgment to

November

rendered its

Great American on

10, LeBlanc

under Fed. R. Civ. P. 59(e).

final

moved for

judgment

November 2,

reconsideration

On December 2, 1992, while this

motion for reconsideration was still pending, LeBlanc filed a

notice

of appeal from the November 2, 1992, grant of summary

judgment.
appeal

Because at the

the district

time LeBlanc filed

court had

not yet

his notice of

ruled

on LeBlanc's

-4-

motion

for

without

reconsideration,

we

determined

jurisdiction to consider

dismissed

it.

On

that

December 21,

1992,

the district

second notice of appeal on December 28.

The second notice of

December 21,

Plaintiff's Motion for Reconsideration

previously

granting

summary

entered
judgment

order
in

of

favor

court

LeBlanc filed a

appeal asked for relief "from the Order entered

court's

were

the appeal and accordingly

denied LeBlanc's motion for reconsideration.

1992, denying

we

November
of

of the

2,

1992,

defendant

Great

American Insurance Companies [sic]."

Great American argues that LeBlanc's
of appeal,
denial on

because it

only challenges the

December 21, 1992 of LeBlanc's

does not confer jurisdiction upon

second notice

district court's
Rule 59(e) motion,

this court to entertain an

appeal

from the

district

court's judgment

1992, granting summary judgment.

to consider the

to

court's

district

reconsideration.
It

2,

Appellee insists we possess

jurisdiction only
the

of November

narrower factors relevant

denial of

LeBlanc's

motion

for

We disagree.

is true that Fed.

R. App. P.

3(c) states that

"[t]he notice of appeal shall specify the . . . order or part

thereof

appealed

jurisdictional
Co.,
___

981

from."

Rule

and mandatory."

F.2d 7,

10-11 (1st

Barry, ___ U.S. ___, 112 S.

_____

3(c)'s

Kotler v.
______
Cir.

"commands

are

American Tobacco
________________

1992) (citing

Smith v.
_____

Ct. 678, 682, 116 L. Ed. 2d

678

-5-

(1992); Torres v. Oakland Scavenger Co., 487 U.S.

______
______________________
16, 108

S. Ct.

2405, 2407-08,

Nevertheless, courts
3(c) liberally.

101 L. Ed.

have been admonished

2d 285

312, 315(1988)).

to interpret Rule

Id.; see Foman v. Davis, 371 U.S.

___ ___ _____
_____

178, 181-

82, 83 S. Ct. 227, 228-30, 9 L. Ed. 2d 222 (1962).

In general,
59(e) motion is

"an appeal from

the denial of

not an appeal from the underlying judgment."

Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3

_____________
____________
(citing
F.2d

1,

2-3 (1st

Cir. 1989);

the denial

notice of
where

Pagan v.
_____

Yet this rule

This circuit has allowed a timely appeal

of a timely

an appeal

Rule 59(e) motion

from the

Id.; see Foman, 371 U.S.

___ ___ _____

in cases

from the judgment is

at 181-82.

assessment, we consider the notice of appeal

of the record as a whole."

to serve as

underlying judgment

the appellant's intent to appeal

clear.

American Airlines,
__________________

990, 992-93 (1st Cir. 1976)).

not inflexible.

from

(1st Cir. 1991)

Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871

________________
___________________________

Inc., 534 F.2d

____
is

a Rule

In making this
"in the context

Kotler, 981 F.2d at 11.

______

Foman v. Davis involved facts very similar to those

_____
_____
in this case.
for

failure

granted.

The district court had dismissed the complaint

to state

The

next

a claim
day,

judgment, pursuant to Fed.

to

amend

the

complaint.

upon

which relief

plaintiff

to

vacate the

R. Civ. P. 59(e), and

also moved

While

the

moved

could be

motions were

still

pending, plaintiff filed a notice of appeal from the district

-6-

court's dismissal of the

complaint.

Shortly thereafter, the

district court denied the plaintiff's motions.

The plaintiff

then filed a

denial of the

second notice of appeal from the

motions.
Although the

parties in

Foman briefed and

_____

argued

the merits of the district court's dismissal of the complaint

as well

as the

district court's

motions, the court of appeals,

the

plaintiff's

of its own accord,

dismissed

appeal insofar as it was taken from the district court's

dismissal of the complaint.

the
.

denial of the

The court of appeals

held that

second notice of appeal was "ineffective to review the .

. judgment

dismissing

failed to specify that

judgment as

well as

the complaint

because the

the appeal was being taken

from the

orders denying

notice

from that

the motions."

Foman, 371 U.S. at 180-81.

_____
In reversing
Court
did

the

court of

appeals,

the

Supreme

held that "[t]he defect in the second notice of appeal

not mislead or prejudice

the respondent."

Although the Court agreed that the

Id. at 181.
___

first premature notice of

appeal had had no

notices

and

effect,1 it ruled that, "[t]aking

the

appeal

papers

together,

the two

petitioner's

intention to seek review of both the dismissal and the denial

____________________
1. Similarly, the first notice of appeal in this case was
without effect.
See Fed. R. App. P. 4(a)(4)(iii) (stating
___
that a notice of appeal filed before the disposition of a
motion under Rule 59 to alter or amend the judgment shall
have no effect).
-7-

of

the motions was manifest."

for this

conclusion

Id.
___

from the

fact

The Court found support

that both

parties

had

briefed and argued the merits of the dismissal on appeal.

The
dispositive

Court's decision
here.

LeBlanc's

district court's November 2,

was plain.

in Foman seems
_____
intent to

to us

appeal

from

to be
the

1992, grant of summary judgment

The two notices taken together revealed LeBlanc's

desire to appeal not just from the motion for reconsideration

but also from the underlying judgment.
II.

BACKGROUND
BACKGROUND
Great American
with

its headquarters

1990, when

is an

all lines insurance

in Cincinnati, Ohio.

As

Great American dismissed LeBlanc,

company

of October

Great American

was divided into four geographical regions: Northeast, South,

Midwest,

and

divisions,
lines

West.

In

Great American

of

business,

addition
was

these

geographical

organized according

distinguishing

commercial lines of insurance.

LeBlanc was

to

between

to

the

personal

and

At the time of his discharge,

employed by Great American

Northeast, Inc. (the

"Northeast Zone") in its commercial lines division.

Great American
branch manager
time, LeBlanc
1988,

in its

hired LeBlanc in October

Wheaton, Maryland,

was forty-nine years

LeBlanc worked

for Great

old.

office.
From

American in

1980 as a
At that

1980 through
Maryland.

In

-8-

January

1989,

Great American

transferred

year-old LeBlanc, with his consent, to

to

serve

as

commercial

lines

the fifty-seven-

eastern Massachusetts
Agency

Operations

Representative

("AOR").

The

transfer was

Conte, then-acting president of

approved by

Al

the Northeast Zone, who also

agreed to pay for LeBlanc's moving expenses and to give him a

sixteen percent pay raise.
In his capacity as an AOR, LeBlanc
market

Great American

agents or

commercial

was expected to

insurance to

brokers in eastern Massachusetts

independent

and assist those

agents and brokers who

were already selling Great American's

insurance

When

products.

Massachusetts,
years

old,

he joined

as one

of

LeBlanc

started

Charles DeMartino,
two

AORs marketing

in

eastern

then fifty-six
Great

American

commercial lines insurance in eastern Massachusetts.

and DeMartino worked together in eastern

LeBlanc

Massachusetts until

LeBlanc's discharge.
According
not

contradicted, the

genesis
for

American's evidence,

decision to

which is

dismiss LeBlanc

had its

in August 1990, when Conte began to prepare a budget

the upcoming year for

Northeast
time,

to Great

Zone

Thomas

American,

the Northeast Zone.

was experiencing
Hayes,

instructed

corporate headquarters.

Executive
Conte to

Because the

financial problems
Vice-President
submit

of

at the
Great

leaner budget

to

Although Conte sought ways to reduce

-9-

expenses

without

September and

dismissing

personnel,

early October 1990, that

he

concluded,

in

personnel cuts would

have to be made.
Conte decided, with the approval of Hayes and Human
Resources

personnel

vacant five
directly
William

working in

Cincinnati, to

positions in the

affected
St.

in

by

George,
the

Northeast Zone.

Conte's
a

decision

Dwight Bowie, the

included

other

vacant

eliminated.

positions

in

the

LeBlanc,

underwriter

headquarters

of

the

thirty-eight-year-old

Profit Center Manager in Hartford, Connecticut.

two

or leave

Those people

forty-seven-year-old

Windsor, Connecticut,

Northeast Zone, and

eliminate

In addition,

Northeast

They included the AOR Manager

Zone

were

in the Syracuse,

New York, office, a position that had already been vacated by

the

resignation

of

Tim

Johnson, age

twenty-six,

and

an

underwriting position in Hartford, Connecticut, that had been

vacant for some time.
On

October

LeBlanc that he was

the

19,

1990,

Great

being dismissed.

decision to eliminate

LeBlanc was

his position was

constraints, and

not because

of his

performance.

Immediately

after

DeMartino,

American

the remaining AOR

age or

told that

based on budget
his individual

LeBlanc's

in eastern

informed

discharge,

Massachusetts, who

was then fifty-seven, assumed responsibility for four or five

of

the approximately

fifteen insurance agents

whom LeBlanc

-10-

had

serviced.

underwriters

The
in

office, which

remaining

Great

agents

were

American's Lancaster,

was responsible for

assigned

to

Pennsylvania,

underwriting insurance in

eastern Massachusetts.
Approximately nine months later,
Great

American

decided

responsibility for eastern

office
Anne

to the Windsor,
Daley,

Connecticut,

Connecticut, office.

began

Daley,

transfer

to

AOR

from

service

Lancaster

At that time,
the

agents

who had been hired by

1991,

underwriting

Massachusetts from the

thirty-year-old

office,

Massachusetts.

to

in July of

Windsor,
in eastern

Great American

prior to LeBlanc's discharge, and who had previously serviced

agents in Connecticut and
Connecticut
agents,

agents

but

Massachusetts.

to

continued
From

western Massachusetts, dropped her

service

the

to

service

July

through

eastern
agents

Massachusetts
in

September 1991,

western
Daley

serviced

some

of

LeBlanc's

agents.

Daley left Great American in September 1991.

that time, DeMartino

former

has been

eastern

the only

Massachusetts
Since

Great American

AOR

servicing agents in eastern Massachusetts.

III.
DISCUSSION
DISCUSSION
A.

Summary Judgment
________________
Because our

is

de novo, we,
________

review of a grant

like the

district

of summary judgment

court, are

obliged to

-11-

review

the

record

in

the

light

most

favorable

to

the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party's favor.
F.2d
112 S.

816, 820 (1st Cir.

Ct. 2965,

Mesnick v. General Elec. Co., 950

_______
__________________
1991), cert. denied,
____________

119 L. Ed.

Smith, 904 F.2d 112,

2d 586 (1992);

115 (1st Cir. 1990).

___ U.S. ___,

Griggs-Ryan v.
___________

Summary judgment

_____
is

properly

granted

where

"the

pleadings,

answers to interrogatories, and admissions

with

depositions,

on file, together

affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled

to a judgment

as a matter of

law."

Fed. R.

see Goldman v.
___ _______

First Nat'l Bank of Boston,

___________________________

1116 (1st Cir.

1993); Lawrence v.
________

Civ. P. 56(c);
985 F.2d

Northrop Corp., 980

______________

1113,
F.2d

66, 68 (1st Cir. 1992).

shifting
parties.
aver

"`an

Summary

judgment

is

burdens

between

the

procedure

moving

and

that

involves

the

nonmoving

Initially, the onus falls upon the moving party to

absence

of

evidence to

support

the

party's case.'"

Garside
_______

(1st Cir. 1990)

(quoting Celotex Corp. v. Catrett,

_____________
_______

v. Osco Drug, Inc., 895 F.2d 46, 48

_______________

317, 325,

106 S. Ct. 2548,

Once

moving

the

party

motion by

2554, 91 L. Ed.

satisfies

pendulum swings back to the

the

trial."

this

477 U.S.

2d 265 (1986)).
requirement,

the

nonmoving party, who must oppose

presenting facts

"genuine issue for

nonmoving

that show

that there

is a

Anderson v. Liberty Lobby, Inc.,

________
___________________

-12-

477

U.S. 242, 256, 106 S.

(1986)

Ct. 2505, 2514, 91

L. Ed. 2d 202

(citing Fed. R. Civ. P. 56(e)); see Goldman, 985 F.2d

___ _______

at 1116;

Lawrence, 980 F.2d at

________

68; Garside, 895 F.2d

_______

at 48

("[A] `genuine issue' exists if there is `sufficient evidence

supporting the
between

claimed factual dispute' to

`the parties'

trial.'" (quoting

differing

Hahn v.
____

require a choice

versions of

Sargent, 523
_______

the truth

F.2d 461, 464

at
(1st

Cir. 1975), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L.

____________
Ed.

2d 754 (1976))).

To oppose the motion successfully, the

nonmoving party "may not rest upon mere allegation or denials

of his pleading."
evidence

Anderson, 477
________

presented

conjectural

by

the

or problematic;

sense that it limns

U.S. at 256.

nonmoving
it must

party

"`cannot

have substance

differing versions of the truth

factfinder must resolve at an ensuing trial.'"

F.2d

Moreover, the
be

in the
which a

Mesnick, 950
_______

at 822 (quoting Mack v. Great Atl. & Pac. Tea Co., 871
____
__________________________

F.2d 179, 181

(1st Cir.

1989)).

Indeed,

"[e]ven in

cases

where elusive concepts such as motive or intent are at issue,

summary judgment

may be

appropriate if the

nonmoving party

rests

merely

inferences,

upon

conclusory

and unsupported

speculation."

R.J. Reynolds Tobacco Co., 896

__________________________
Thus,

to

defeat a

judgment, the
issue by

properly

F.2d 5, 8
supported

nonmoving party must

presenting "enough

allegations,

improbable

Medina-Munoz v.
____________
(1st Cir.

motion for

1990).
summary

establish a trial-worthy

competent evidence to

enable a

-13-

finding favorable to the

nonmoving party." Goldman, 985 F.2d

_______

at 1116 (citing Anderson, 477 U.S. at 249).

________

-14-

B.

The Age Discrimination Claims2

_____________________________
1.

The Legal Framework

In

an ADEA

discrimination lawsuit,

the plaintiff

bears the ultimate

"`burden of proving

the determinative factor

would not have

in his discharge, that

been fired but for

F.2d at 823 (quoting

1335 (1st Cir. 1988)).

overt

evidence

follows

his age.'"

age

At

were

is, that he
Mesnick,
_______

Freeman v. Package Mach. Co.,

_______
_________________

1331,

of

that his years

950

865 F.2d

least when there is little

discrimination,

the

case

usually

the ritualized burden-shifting paradigm in McDonnell

_________

Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817,

_____________
_____
1824-26, 36 L. Ed. 2d 668 (1973); see, e.g., Goldman v. First
___ ____ _______
_____
Nat'l Bank of Boston, 985 F.2d 1113 (1st Cir. 1993); Lawrence
____________________
________
v.

Northrop Corp., 980 F.2d

______________

General Elec. Co.,

__________________
denied,
______

___ U.S.

(1992).
prima

950

suggestive
411 U.S. at

F.2d

___, 112 S.

Under this
facie

66 (1st Cir.
816 (1st
Ct. 2965,

formulation, a

showing

of possible

of

certain

985 F.2d at

F.2d at 69; Mesnick, 950 F.2d at 823.

_______

____________________

Cir.

1991),

119 L.

standardized

cert.
_____

Ed. 2d 586

plaintiff opens

discrimination.

802; Goldman,
_______

1992); Mesnick v.
_______

with a
elements

McDonnell Douglas,
_________________
1117; Lawrence,
________

980

2. LeBlanc does not specifically argue that the district

court erred in granting summary judgment for Great American
under the Massachusetts Anti-Discrimination Act, Mass. Gen.
L. ch. 151B,
4 (1982 & Supp. 1988).
-15-

The
vary,

elements

within the age

whether or

not

of the

prescribed prima

discrimination context, depending upon

the plaintiff

reduction in force.

was dismissed

"(1) was at

employer's

legitimate

person

facie case by

least forty years

job

with roughly

demonstrating
met the

expectations,

action, and (4) was

equivalent

job

of a

force, the

of age, (2)

performance

experienced adverse employment

by a

as part

If there was no reduction in

plaintiff establishes the prima

that he

facie case

(3)

replaced

qualifications."

Goldman, 985 F.2d at 1117; see Mesnick, 950 F.2d at 823.

_______
___ _______

But

if

the

the job

plaintiff

loss
need

equivalent job

was
not

show

not treat

age

reduction

replacement

qualifications.

(4), the plaintiff may

did

part of

in force,

by

Instead, to

someone

with

satisfy element

demonstrate either that "the employer

neutrally or

retained in the same position."

that younger

persons were

Hebert v. Mohawk Rubber Co.,

______
872 F.2d 1104, 1111

_________________

(1st Cir. 1989), quoted in

_________

F.2d at 1117; Lawrence,

________

980 F.2d at

Goldman, 985
_______

69; Connell v. Bank of

_______
________

Boston, 924 F.2d 1169, 1173 n.5 (1st Cir.), cert. denied, ___
______
____________
U.S. ___, 111 S. Ct. 2828, 115 L. Ed. 2d 997 (1991).
Establishment
creates

of the

presumption

prescribed prima

that

the

impermissible age discrimination.

Community Affairs v. Burdine,
_________________
_______
1089, 1094,

67 L. Ed.

2d 207

employer

facie case
engaged

in

See, e.g., Texas Dep't of

___ ____ ______________

450 U.S. 248, 254, 101

S. Ct.

(1981); Goldman, 985

_______

F.2d at

-16-

1117.
only

However, to rebut this

"articulate a
__________

legitimate nondiscriminatory

the employee's termination."

980

F.2d

at

69

presumption, the employer need

(citations

[Emphasis supplied.]
omitted).

The

reason for
Lawrence,
________
employer's

obligation is
persuasion

simply one

remains

of production.

[the employee's]

at

"[T]he
all

burden of

times."

Id.
___

(citing Mesnick, 950 F.2d at 823).

_______
Courts have commonly

said that

once the

employer

has proffered a legitimate, nondiscriminatory reason

for its

adverse employment decision, the presumption generated by the

employee's prima facie case
back upon the employee
the employer for the
mere

pretext for

disappears, and the burden falls

to prove that the reason

advanced by

adverse employment action constituted a

unlawful age

discrimination.

See, e.g.,
___ ____

Goldman, 985 F.2d at 1117; Lawrence, 980 F.2d at 69; Mesnick,

_______
________
_______
950 F.2d at 823-24.
not

In this circuit, we have always required

only "minimally

evidence

that

overall

discriminatory animus.
980

sufficient

evidence of

reasonably
Goldman,
_______
(citing

supports

pretext,"
a

finding

but
of

985 F.2d at 1117; Lawrence,

________

F.2d

at

69-70

Mesnick,
_______

Villanueva
__________

v.

Wellesley College,
_________________

930

950
F.2d

F.2d

at

825;

124, 127

(1st

Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 181, 116 L. Ed.
____________
2d 143 (1991);

Connell, 924 F.2d at

_______

1172; Medina-Munoz, 896

____________

F.2d at 9; Olivera v. Nestle P.R., Inc., 922 F.2d 43, 48 (1st

_______
_________________
Cir. 1990)).

-17-

This

approach

and

particularly

aspect, adopted in some but not all circuits

by the

Supreme Court last term.

the employer succeeds "in

the

McDonnell Douglas
_________________

burdens

is no

latter

was clarified

The Court held

that, once

carrying its burden of production,

framework

longer relevant."

with its

presumptions and

St. Mary's Honor Ct.

_____________________

Hicks, ___ U.S. ___, 113 S. Ct. 2742, 2749, ___

_____
(1993).

the

v.

L. Ed.2d ___

According to the Court:

The
presumption
[raised
by
the
plaintiff's prima facie case], having
fulfilled
its
role of
forcing the
defendant to come forward
with some
response, simply drops out of the picture
. . . .
The defendant's "production"
(whatever its persuasive effect) having
been made, the trier of fact proceeds to
decide the ultimate question: whether
[the] plaintiff has proven "that the
defendant
intentionally
discriminated
against [him]" because of his race . . .
.
The 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. Thus, rejection of the

defendant's
proffered
reasons,
will
permit the trier of fact to infer the
______
ultimate
fact
of
intentional
discrimination . . . .
___

U.S.

Although

___,

113

the Hicks
_____

discrimination

S. Ct.
case

at

2749

arose in

claim brought

(citations

the

pursuant to

omitted).

context of

Title VII

Civil Rights Act of 1964, the Court's decision

race
of the

seems equally

applicableto agediscrimination lawsuitsbrought underthe ADEA.

-18-

Thus,

in

an

employer articulates a
for

its decision

Douglas presumption
_______
U.S. ___,
simply

age

discrimination case,

legitimate, nondiscriminatory

to discharge

113 S. Ct. at 2749.

on

The trier of
all the

employer's decision to terminate

by

the employee,

the

reason

the McDonnell
_________

"drops out of the picture."

determine, based

once

Hicks, ___
_____

fact must then

evidence, whether

the

the plaintiff was motivated

intentional age discrimination.

Id.
___

In

reaching this

decision, the
evidence,

trier of fact

the

employer's

evidence

may consider, along

put

justification for

was a pretext.

Id.
___

forward

to

show

its adverse

with other
that

the

employment action

Such evidence, coupled with the elements

of the employee's prima facie case (and, of course, any other

evidence), may (or may not) lead the factfinder to infer that
the employer has engaged in intentional discrimination.
The Hicks
_____
full

bench

trial.

proceeding,
advanced
adverse

Hicks
_____
a

In the

context

requires

legitimate,

that,

evidence

the case

of a
once

the

employer
basis

for

has
its

plaintiff, before becoming

before the trier

sufficient for

appeal from a

summary judgment

nondiscriminatory

employment decision, the

entitled to bring
show

decision emanated from an

Id.
___

the factfinder

of fact,

must

reasonably to

conclude that the employer's decision to discharge him or her

was

wrongfully based

Lawrence, 980 F.2d

________

on age.

Goldman,
_______

985 F.2d

at 1117;

at 69-70; Villanueva, 930 F.2d at 127-28;

__________

-19-

Connell, 924 F.2d at

_______
discriminatory
. . must be

1172.

"Direct or indirect

evidence of

motive may do, but `the evidence as a whole .

sufficient for a reasonable factfinder

to infer

that the employer's decision was motivated by age animus.'"

Goldman,
_______
n.3).
the

985 F.2d at 1117 (quoting Connell, 924 F.2d at 1172

_______
Thus, the plaintiff cannot

record is

evidence

of

employer.
2.

devoid of

avert summary judgment if

adequate direct

discriminatory

animus

on

or circumstantial
the

part

of

the

See id. at 1118 (citations and footnote omitted).

___ ___
The Prima Facie Case
The

district

court

granted

summary

judgment in

Great American's favor on the initial ground that LeBlanc had

failed

to make out a prima facie case of age discrimination.

While it

is not clear

regard, we
assume

prefer

for present

prima facie

to us

that the court

because the question

purposes

case within the

that LeBlanc

erred in

this

is so close

to

did establish

McDonnell Douglas
_________________

formulation.

This leads us, infra, to examine the adequacy of the evidence

_____
of discriminatory animus,

concluding, as we

do, that it

is

insufficient to create a triable issue.

There

is no

direct evidence

that Great

American

discharged LeBlanc because of his age, and the parties

that LeBlanc satisfies

the first three of

agree

the four elements

-20-

of

his

prima

paradigm.3

facie
What

established

the

is

so

under

disputed

fourth element

Great American argues

force

case

the
is

of

whether
his

Great

American

either

LeBlanc

prima facie

that, because this

case, LeBlanc must demonstrate

that

McDonnell Douglas
__________________
has
case.

is a reduction

in

and has failed to do

failed

to

treat

age

neutrally in making its decision to terminate him or retained

younger persons in the same position that he held.4
LeBlanc maintains that Great American did not treat
age neutrally and that
same

position

that he

it retained younger employees

held

because,

when Great

in the
American

discharged him in October 1990, it continued to employ thirty

other younger AORs in the Northeast Zone.
intimates that

Great American failed to

because two of the three people whom Great

Moreover,

LeBlanc

treat age neutrally

American actually

discharged
LeBlanc,

as

part of

were members

its
of

reduction

in force,

the protected

including

class, i.e.,

were

____________________
3. At the time of his discharge, LeBlanc was fifty-nine
years of age.
This satisfies the first element of the
McDonnell Douglas standard, which, in age cases, requires the
_________________
plaintiff to be over the age of forty. In addition, LeBlanc
was meeting Great American's job performance expectations.
Finally, LeBlanc experienced adverse
employment action,
having been discharged.
4. LeBlanc does not agree that this is a reduction in force
case.
He claims that Great American's characterization of
this case as such is merely a pretext for Great American's
discriminatory conduct.
Nevertheless, even assuming a
reduction in force occurred, LeBlanc contends that he has
made out a prima facie case.
-21-

forty or older.
held by the
properly
While

we

We are not convinced that

thirty other

be considered
agree

that

the AOR positions

AORs elsewhere in
the

the

"same" position
other

AOR

the region
LeBlanc

position

may
held.

in eastern

Massachusetts, which continued to be held by DeMartino (a man

almost identical in age to LeBlanc), was the "same" position,
we

are less clear that

other AOR positions scattered around

the region
Cf.
__

say,

Barnes v. GenCorp Inc.,

______
____________

(retention of
was

in Syracuse, New York

younger people

were the

same.

896 F.2d 1457,

1465 (6th Cir.)

in other jobs

which plaintiff

qualified to perform not sufficient to establish a prima

facie case), cert. denied, 498 U.S. 878, 111 S.

____________
L. Ed 2d 171 (1990).
be said

We also question whether

three people it discharges pursuant

reduction in force belong

of three is a
this sort.

element

to the protected class.

small number from which to draw

Still, we

two

shall assume, without

facts taken

together

would

case

(quoting

is `not

3.

satisfy the

Mesnick,
_______

Great American's Justification

-22-

fourth

in mind the
out a prima

950 F.2d

Texas Dep't of Community Affairs v.

__________________________________

U.S. at 253).

A sample

deciding, that

"[t]he burden of making

onerous.'"

to a

deductions of

of the McDonnell Douglas test, bearing

__________________

Court's admonition that

facie

a company can

not to treat age neutrally as a matter of law merely

because two of the

these

Ct. 211, 112

at 823

Burdine, 450
_______

Assuming,

without necessarily finding, that LeBlanc has

established a prima facie case of age discrimination, we turn

next to the second prong of the McDonnell Douglas test.
_________________
calls
a

for determining whether Great American has articulated

legitimate,

dismissal.

nondiscriminatory

reason

LeBlanc's

it reduced its force

the Northeast Zone in October 1990 because the region was

experiencing financial

difficulties.

president of the Northeast Zone,

the

for

We hold that it plainly has.

Great American maintains that

in

This

financial

attributable

difficulties

to a

downturn

Al

Conte, then-acting

stated in an affidavit that

in

the

in the

Northeast

Zone

were

region's economy,

high

fixed expenses, and

state-mandated residual assessments,

government

requirements, levied

pooling

or

against commercial

lines of insurance.5
Great American asserts

that it discharged

as part of this economically-driven reduction in

number of interrelated business reasons.
made

the decision

that

he

looked

to eliminate
to eliminate

because Massachusetts

force for a

Conte, who actually

LeBlanc's
this

LeBlanc

position, stated

Massachusetts

was the least profitable

position

state in the

____________________
5. These pooling requirements were charges assessed by state
governments against insurance companies in certain lines of

insurance intended to fund otherwise uninsurable business.

These charges were based upon each insurer's pro rata
percentage of total premiums written in that state for a
given line of insurance.
-23-

Northeast

Zone.

extremely small

In

addition, eastern

geographic area,

was being serviced

experienced AORs, LeBlanc and DeMartino.

eastern

Massachusetts

would

Northeast Zone regions by the

position.

Finally,

claims

an

by two

Conte believed that

the least

harmed

of

the

elimination of a full-time AOR

Conte chose

fifty-eight years old (a

DeMartino had

be

Massachusetts,

to retain

DeMartino, then

year younger than LeBlanc), because

longer tenure

in Massachusetts

adjusting background, not

and had

possessed by LeBlanc, that

provided Great American with greater versatility in the event

of hurricanes, storms, or floods.
The explanations for LeBlanc's discharge offered by
Conte

fully satisfy

Great American's

burden of

production

under the second prong of the McDonnell Douglas test.

_________________
presented,

"`through

evidence,' reasons for

the

introduction

of

It has

admissible

its actions which, if believed by the

__________________

trier of fact,
_______________

would

discrimination was

support

finding

that

unlawful

not the cause of

the employment action."

St. Mary's Honor Ctr. v. Hicks, ___

______________________
_____

U.S. ___, 113 S. Ct. at

2747

(quoting

Burdine, 450
_______

original).

U.S.

Accordingly,

discrimination
vanished.

raised

by

at

the

254-55) (emphasis
presumption

LeBlanc's

prima facie

in

of

age

case

has

Left to be decided is whether the evidence, in its

entirety, would permit a

reasonable factfinder to infer that

-24-

Great American's decision

to terminate LeBlanc was

inspired

by age animus.
4.

LeBlanc's Evidence of Age Animus

LeBlanc

evidence

points

as supporting

decision to

to

First,

types

an inference

terminate him

discrimination.

two

of

that

was motivated by
LeBlanc contends

circumstantial
Great American's
intentional age

that the

reasons

articulated

by Great

American

for his

dismissal could

be

found to be mere pretexts offered to disguise the defendant's

age animus.

Second,

LeBlanc argues that certain statistical

evidence he

presented suffices

was engaging

in a pattern of

to show that

Great American

discriminatory conduct towards

older employees.
a.

Evidence of Pretext

LeBlanc
employees

out

Northeast

Zone

reduction

in

American

submits

of

212

cannot

that

be

Moreover,

AORs in

conclude,

however, that

1990

he

as
claims

a reduction in
prior to

a reasonable

of

only

employees

characterized

did not engage in

new

layoff

salaried, exempt

force.6

hired ten

three
in

bona
that

the
fide
Great

force because it

his dismissal.

We

factfinder could

not

infer pretext or age discrimination from these circumstances.

____________________
6. Although LeBlanc fails to
spell out the
specific
characteristics of a reduction in force as he understands the
term, he insists that a true reduction in force occurs, for
instance, when 1,000 employees out of an employee population
of 5,500 are dismissed.
-25-

An employer need not dismiss

of employees,
force,

or

terminate a

set

any particular number

percentage of

to institute a reduction in force.

the

work

Rather, "[a] work

force reduction situation occurs when business considerations

_______________________
cause an employer to eliminate one or more positions within
_____________________________________________________________
the company."
____________

Barnes
______

(emphasis added).

v. GenCorp Inc.,
_____________

According

to Al Conte,

corporate headquarters ordered him

for the Northeast Zone
concerned

about the

896 F.2d

at 1465

Great American's

to submit a leaner budget

for the upcoming year because

region's

financial difficulties.

it was
To

comply, Conte decided that it would be necessary to eliminate

five

positions, two

of

which were

unfilled

at the

Under these circumstances, the fact that Conte laid off

three employees,
initiative
the

as part of

to trim expenses does not

dismissals

reductions
which to

including LeBlanc,

were mere

in force.

time.
only

his claimed

by itself suggest that

pretexts

rather

Other evidence

than bona

would be

conclude that Great American's

fide

needed from

stated reasons were

mendacious.
Nor could a rational factfinder conclude that Great
American's purported reduction in force was a pretext for age
discrimination
elsewhere

in

discharging
evidence

simply
the

because

Northeast

LeBlanc in

it

hired ten

Zone

October 1990.

that the hiring of

in

the

younger
period

LeBlanc

AORs
before

provides no

younger AORs outside of eastern

-26-

Massachusetts

was

tied

in

any

way

to

Great

American's

decision to eliminate the older LeBlanc's position in eastern

Massachusetts;
LeBlanc's

nothing suggests

they

responsibilities.

reasonable

juror

might

were hired

LeBlanc
conclude

to assume

submits

that

that

company

a
as

sophisticated as Great American would not legitimately decide

to
new

engage in a reduction
positions.

record,

juror

But to
would

unsupported speculation.
One

can

imagine

in force shortly
reach any
have to
See
___

perfectly

increasing the number

cutting back in eastern

after adding ten

such conclusion
indulge

on this

impermissibly

Medina-Munoz, 896 F.2d

____________
legitimate

considerations

of AORs elsewhere in
Massachusetts.

in

at 8.
for

the region while

It is not

a court's

role "to second-guess the business decisions of an employer."

Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st
_______
____________________________
Cir. 1990).
LeBlanc

also

claims

that

he

was

not dismissed

pursuant to a reduction
Anne Daley.
as part
after

in force because he was

It is true that "[a]n employee is not eliminated

of a work force reduction when he or she is replaced

his

or her

Nonetheless, Daley

discharge."

Barnes,
______

did not,

fact, replace

discharged employee

in

"is not replaced

896 F.2d

duties, or when the

at 1457.

LeBlanc.

when another employee

is assigned to perform the plaintiff's duties in

other

replaced by

addition to

work is redistributed among other

-27-

existing

employees

already performing

related work."

Id.
___

Rather, "[a] person is replaced only when another employee is

hired or reassigned to perform the plaintiff's duties."
Daley
She

began

was not

working

for

hired to perform
Great

Connecticut, office one month

and

did not begin to

Massachusetts
after

until

LeBlanc's

American

departure.

LeBlanc's duties.
in

its

Windsor,

before LeBlanc was discharged,

service agents and

July

Id.
___

1991,

brokers in eastern

approximately

Prior

to

nine months

then, she

serviced

agents only
in
like

in Connecticut and western

Massachusetts.

Even

July 1991, and thereafter, Daley did not perform anything

all

of

LeBlanc's

former

duties.

Moreover,

assigned to some (though not all) of LeBlanc's former

in eastern Massachusetts, she
western

Massachusetts.

assignment

included

agents

continued to service agents in

Thus,
performing

responsibilities while

while

at
some

carrying on
And even

most,

this

of

her

temporary

LeBlanc's

duties of her

performed

by him.

LeBlanc's

duties lasted for only three months.

prior

own never

partial performance

of

This did not

amount to replacing him.7

LeBlanc next
it was experiencing

disputes Great American's

financial difficulties in the

Zone and in Massachusetts

in 1990.

LeBlanc opines

claim that
Northeast
that the

____________________
7. Since September 1991, when Daley resigned from Great
American, Charles DeMartino has been the only AOR in eastern
Massachusetts.
-28-

primary method for determining

whether a particular state or

a branch

office

referred to

is

profitable

as the total

exceeds the

LeBlanc
Analysis

comparing

what

is

with the

According to LeBlanc, when the TBM

TOT figure,

asserts that

by

benchmark figure ("TBM")

total loss ratio ("TOT").

figure

is

it

reflects profitability.

Great American's

Report ("GAYAR")

Gross Accident

showed that,

for the

Year

years 1987

through 1991, Massachusetts was the only state among the four
largest producing states in the Northeast

Zone8 consistently

to have a TBM figure that exceeded its TOT figure.

The GAYAR,
kept

by

Great

profitability
The

however, was

American

in the

that

only one of
measured

Northeast Zone

Effective Accident

Year Report

many records
the

and in

company's

Massachusetts.

for Massachusetts,

for

instance, revealed that, in 1990, the TOT figure exceeded the

TBM

figure

fifty

to

forty-three.9

This

was

indication of unprofitability in Massachusetts.

strong

In addition,

the profit and loss statements for the various offices in the
Northeast

Zone

revealed

that the

region

was experiencing

____________________
8. The other
Connecticut.

three states

were New York,

New Jersey,

and

9. The difference between the GAYAR and the Effective

Accident Year Report is that the former measured loss ratios
on a policy year/accident year basis while the latter
measured loss ratios on a calendar year basis. According to
Robert McGuigan, who was a vice-president for Great American
at the time of LeBlanc's discharge, executives would evaluate
the calendar year loss ratios, not the policy year/accident
year loss ratios, to assess profitability.
-29-

financial difficulties in 1990.

branch office,

to

which the

For instance, the Lancaster

eastern

Massachusetts

region

reported, showed a calendar year underwriting loss in 1990 of

approximately

$3.7

million; the

New

Jersey profit

center

reported a calendar year underwriting loss in 1990 of roughly

$4.5 million;

and the New

England profit center

suffered a

calendar year underwriting loss in 1990 of approximately $3.8

million.

All told,

the Northeast Zone

incurred a calendar

year underwriting loss in 1990 of $11.8 million.10

Given
difficulty,

we

this
can

evidence
find

of

no

substantial

triable

issue

financial
over

Great

American's assertion that unprofitability concerns fueled its

decision to lay off LeBlanc and the others.

The question for

a jury would not be whether Great American's finances, viewed

by one yardstick, might arguably be seen by someone else in a
more

optimistic light

than

did its

there was

evidence of profitable

permit

reasonable jury

to

managers, but

performance sufficient

infer

that Great

given as a reason

layoffs

Viewing

pretense.

evidence together, including the GAYAR

to

American's

proffered pessimistic analysis

was a mere

whether

for the

all the financial

data, we think a jury

would lack any rational basis from this evidence to

conclude

____________________
10. This loss appears to
be particularly severe when
compared to the $111 thousand calendar year underwriting
profit that the Northeast Zone realized in 1989.
-30-

that Great

American's assertions of financial

concern, as a

basis for the discharges, were a sham.

Finally,
the pretextual
terminating
consult

LeBlanc argues

nature of

LeBlanc lies in the

with Bruce

Lancaster

Rutherford,

office and

before he made
addition,

Great

the person

the final

LeBlanc

that further

American's explanation
fact that Al
the branch
to whom

that

Joseph

president in charge of personnel for

not learn about LeBlanc's
before
have

it was
been

manager of

the

LeBlanc reported,
LeBlanc.

Klimas, the

In
vice-

the Northeast Zone, did

impending dismissal until one week

officially announced.

well served

for

Conte did not

decision to dismiss

asserts

evidence of

to

Although

consult these

people

Conte might
before he

decided to discharge LeBlanc, we

are not persuaded that this

evidence either undermines the justifications

American for its

decision to dismiss

Great American or Conte

stated in
sit as
even

given by Great

LeBlanc or shows

was motivated by age animus.

Mesnick v. General Electric Co., "Courts

_______
_____________________

As we
may not

super personnel departments, assessing the merits

of

employers'

business decisions."

950 F.2d

at 825.

nothing in the record

to suggest why Conte, who,

1989,

that

the

rationality

approved

expense,

to

LeBlanc's

eastern

transfer,

Massachusetts

at
and

or

nondiscriminatory
LeBlanc points

Great
his

to

in January
American's

corresponding

sixteen percent pay raise, would develop an aversion to older

-31-

people less than two

years later, especially where

to retain DeMartino, the

who

was only

LeBlanc.

he chose

other AOR in eastern Massachusetts,

year younger

than the

fifty-nine-year-old

See Lowe v. J.B. Hunt Transp., Inc., 963

___ ____
_______________________

175 (8th Cir. 1992); Proud v.

_____

F.2d 173,

Stone, 945 F.2d 796, 797

_____

(4th

Cir. 1991) ("[I]n cases where the hirer and the firer are the
same

individual and

the

termination

within a relatively short time

strong

inference

determining

factor

employer.").
years

exists

old

We

for

discrimination
adverse action

was

decided

to

not

taken

note that Conte, himself, was

when he

occurs

span following the hiring,

that
the

of employment

by

a
a
the

nearly sixty

terminate LeBlanc

and

the

others.
b.

Statistical Evidence

LeBlanc

offers

statistical

American's employment practices that

reasonable

trier

of fact

decision to terminate him

discrimination.
otherwise.

It ruled

The

to

considered

of

Great

he claims would allow a

infer

that Great

American's

constituted an act of illegal

district

court,

that, in light of

record, LeBlanc's statistical evidence

matter of

evidence

law to demonstrate that

however,

-32-

found

the totality of the

was insufficient as a

Great American wrongfully

age in its decision to dismiss LeBlanc.

with the district court.

age

We agree

In

LeBlanc's,11

disparate

the central

of discrimination
particular

focus "is

existed [at

individual was

Banco Santander P.R.,

____________________
such,

treatment

in a

the company]

such

a pattern

and more

why."

as

how a

Cumpiano v.
________

902 F.2d 148, 156 (1st Cir. 1990).

of

although relevant,

than it does

less whether

treated, and

statistical evidence

patterns,

case

company's general

carries less

As

hiring

probative weight

disparate impact case.12

See id.;
___ ___

Mack
____

v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 184 n.3 (1st Cir.
_________________________
1989) (questioning how statistics showing a low percentage of
African

Americans and

women

at

admissible in a disparate treatment

&

would

case).

have

been

In this context,

statistical evidence in a disparate treatment case, in and of

itself, rarely

suffices to

rebut an

nondiscriminatory rationale for

individual employee.

See
___

employer's legitimate,

its decision

to dismiss

an

Walther v. Lone Star Gas Co., 977

_______
__________________

F.2d 161, 162 (5th

Cir. 1992).

overall employment

statistics will, in at

have little direct bearing on the

This is because

a company's

least many cases,

specific intentions of the

____________________
11. A "disparate treatment" cause of action accrues "when an
employer treats an employee less favorably than others
because of her race, color, religion, sex, [] national

origin,"

or age.

Cumpiano v. Banco Santander P.R., 902 F.2d

________
____________________
148, 156 (1st Cir. 1990).
12. Disparate
impact
actions
arise "from
employment
practices, often facially neutral, which (1) cannot be
justified by business necessity and (2) in fact impose
harsher
burdens on
employees
who share
a protected
characteristic." Cumpiano, 902 F.2d at 156.
________
-33-

employer when dismissing a

particular individual.

Concord Hosp.,
_____________

966 F.2d 32, 35 (1st Cir. 1992).

indication

of

practices

of

the

connection

between

employer,

and

the
the

Gadson v.
______
"Without an

statistics," the
employee's

case,

statistics alone are likely to be inadequate to show that the

employer's

decision

to

impermissibly based on age.

discharge

the

employee

was

Id.
___

In the instant case, we do not think that LeBlanc's

statistical evidence
to

infer

that

discrimination
are

would allow a reasonable

Great

American

against LeBlanc.

of questionable

import,

and

engaged
The
they

in

trier of fact
illegal

age

statistics themselves
stand

precariously

unsupported

by

other

probative

evidence

discrimination.

There is, moreover, no

to

statistics

connect

the

to

of

age

evidence whatsoever

Great

American's

specific

decision to dismiss LeBlanc.

The flaws
notable.

First,

distribution
Northeast

of

Zone

in the statistical
the comparison

ages
from

important information
are

not

told

available or

in

of LeBlanc's age

various

1989

evidence itself

groups of

through 1991

regarding the pool of

whether

"qualified

applied for those

Ross Corp., 823 F.2d 937,

__________

older

jobs."

with the

AORs

fails

to

in

employees

943 (6th Cir. 1987).

the

provide

applicants.

Simpson
_______

are

We
were

v. Midland________
Indeed, the

fact that recently hired AORs are younger than LeBlanc is not

-34-

necessarily evidence of discriminatory intent, but may simply

reflect a younger available work force.
Second, LeBlanc's statistics
of

that compare the ages

the employees who left Great American for any reason from

1989 through 1991

who kept

with the ages of

their jobs during

voluntary

Great American employees

the period

from involuntary departures.

obviously have

no bearing on whether

in age discrimination.

might have

people

how

actually younger
who stayed with

the data

from

Great American
the three-year

1991, the year following LeBlanc's

from

1991

1991,

than

the average

Great American.13
demonstrate

discrimination whatsoever.
data

during

In

Significantly, the average age of those seventeen

was

employees

people who left

or involuntarily

period, seventeen left in

dismissal.

period even though they

or accepted jobs elsewhere").

the twenty-two

voluntarily

Voluntary departures

See id. (improper to include "all who

___ ___

retired . . .

addition, of

distinguish

Great American engaged

left the company during the relevant

either

fail to

LeBlanc's

any

age

of the

We cannot see
pattern

of

age

Accordingly, if we disregard the

statistics

are

based

on

the

departure of only five employees, including LeBlanc, over two

____________________
13. Even when the 1990 hires and the trainees, who are
presumably younger in age than other employees, are excluded
from the employee pool during the three-year period, the
statistical comparisons between jobs that were eliminated and
jobs that were not eliminated in 1991 do not raise an
inference of age discrimination.
-35-

years

from

Northeast

an average

annual

employee

population in

Zone of approximately 215 people.

statistical sample

carries little

show discrimination."

the

"[S]uch a small

or no probative

force to

Fallis v. Kerr-McGee Corp., 944 F.2d

______
_________________

743, 746 (10th Cir. 1991); see Simpson v. Midland-Ross Corp.,

___ _______
__________________
823

F.2d 937,

943

(6th Cir.

Knudsen Co., 804 F.2d 1072,

____________
v.

Johnson & Johnson, 756

__________________

1987); Sengupta
________

v. Morrison_________

1075-76 (9th Cir. 1986); Coates

______
F.2d 524,

541 (7th

Cir. 1985);

Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984).
_______
___________

We

conclude that LeBlanc's statistical evidence does not provide

a sufficient basis for

a reasonable jury to find

that Great

American terminated LeBlanc because of his age.

IV.
CONCLUSION
CONCLUSION
On

the record before us, we

adduced insufficient evidence for

to

infer that

Great

other words, "[t]he evidence

the

light most

a reasonable trier of fact

American's decision

employment in October 1990

in

find that LeBlanc has

to terminate

his

was motivated by age animus.

In

presented by [LeBlanc],

favorable to

him,

[fails] to

viewed
create a

genuine issue of

material fact

as to whether

employer's motive to discriminate

age, [LeBlanc] would

`but for

against him because of his

not have been discharged.'"

First Sec. Servs. Corp., 848

________________________

his

F.2d 281, 289

Menard v.
______

(1st Cir. 1988)

(quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.
____
_______ _____

-36-

1979)).
conclusory

Indeed, LeBlanc's arguments are

allegations,

unsupported speculation.

improbable
The district

based largely upon

inferences,

and

court's decision

to

enter summary judgment in Great American's favor was proper.

Affirmed.
________

Costs to appellees.
__________________

-37-