United States Court of Appeals

For the First Circuit

No. 13-2272

MICHAEL DUNN,

Plaintiff, Appellant,

v.

TRUSTEES OF BOSTON UNIVERSITY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Thompson, Circuit Judges

and Laplante,* District Judge.

Lana Sullivan, with whom Ronald M. Davids was on brief, for

plaintiff-appellant.

Lawrence S. Elswit for defendants-appellants.

July 30, 2014

*

Of the District of New Hampshire, sitting by designation.
LAPLANTE, District Judge. Michael Dunn appeals the entry

of summary judgment against him on his claim that his former

employer, Boston University ("BU"), discharged him because of his

age in violation of the Massachusetts Fair Employment Practices

Act, Mass. Gen. Laws ch. 151B, § 4.1B. The district court ruled

that Dunn had failed to make out a prima facie case of age

discrimination. Without ruling on the sufficiency of Dunn’s prima

facie showing we affirm. Even assuming that Dunn made that prima

facie showing, he failed to demonstrate a genuine issue of material

fact as to whether BU’s stated reasons for discharging him, as part

of a reorganization of its information technology department, were

pretextual.

I.

A.

We set forth the facts in the light most favorable to

Dunn. See, e.g., Ponte v. Steelcase, Inc., 741 F.3d 310, 313 (1st

Cir. 2014). After receiving a bachelor’s degree in computer

engineering, in 1987, Dunn worked for a year or so as a hardware

support specialist before becoming a systems administrator and,

later, the manager of the computer support center, for a

Massachusetts company with 1,500 employees. In 1992, Dunn began

working for BU, as a computer hardware repair technician. After

several promotions, in the fall of 2009, at age 47, Dunn assumed

the title of "Assistant Director of Distributed Computing," a group

-2-
within BU’s Information Services & Technology ("IS&T") department. 

In this job, Dunn supervised nine employees providing high-level

desktop computer services and support to faculty and staff.

Earlier in 2009, BU had hired Tracy Schroeder, age 38, as

the vice president of IS&T. Schroeder began making organizational

changes, including the merger of the distributed computing group

with another group within IS&T known as the "IT help center." The

purpose of that change, Schroeder explained, was to "improve the

efficiency of the department by bringing staff . . . who [were]

performing similar functions together in teams" and "to reduce the

fragmentation of the [department’s] presentation to the client

community," i.e., BU’s students, faculty, and staff. This merger

resulted in the elimination of the distributed computing group, and

the layoff of its director (and Dunn’s immediate supervisor),

Stephen Rosman, who was 59 years old at the time.

The merger also resulted in a title change for Dunn, who

became "manager of field support" for the IT help center in October

2009. Dunn retained the same salary and benefits, but lost

managerial responsibility over four employees, and viewed the title

change as a demotion. Within two months or so, however, those

employees were re-assigned to work under Dunn after their

supervisor quit. Dunn reported to Stacy Gianoulis, age 50, a

project director in the help center.

-3-
In February 2010, as part of the continued restructuring

of the IS&T department, Dunn became "manager of desktop servicesfield support," while Jill Beckman, who was then around 30 years

old, became "manager of desktop services-central support." 

Beckman, who holds an undergraduate degree in music synthesis (a

major she described as "all about music and computers"), had

started working at BU in 2001, before she completed college. She

began as a "technical consultant" at University Computers, a BUoperated computer store, diagnosing and repairing hardware and

software problems. In 2006, Beckman was promoted to the position

of "manager of technical services" at the store, so that its

technical consultants reported to her. During her time at

University Computers, Beckman worked with different "ticketing

systems" used to track service requests, contributing to the

development of two such systems (known as "Oompa" and "OneHelp").

In April 2010, Gianoulis called Dunn to apprise him of

some further upcoming organizational changes, including that, due

to overwork, the employee then serving as "manager of the service

desk" would have her title changed to "manager, accounts and

student services" and be relieved of her responsibilities over the

service desk itself. Gianoulis explained that this would open a

new "service desk manager" position, but that "he [was] really

looking for a younger person in that role." Dunn did not express

any interest in the new position, which, as he testified at his

-4-
deposition, offered a "lesser grade [and] pay" than the job he had

at the time. Ultimately, BU hired a 35-year-old for the service

desk manager job.

A few weeks later, in early May 2010, Gianoulis submitted

a written proposal to Schroeder for reorganizing the desktop

services group. In addition to dividing the responsibilities of

the manager of the service desk, as just discussed, this proposal

combined the responsibilities of the "central support" position

held by Beckman and the "field support" position held by Dunn into

a single new position, "manager of the [d]esktop [s]ervices team." 

Gianoulis explained that, while desktop services had initially been

divided into the "field support" and "central support" teams, "each

with its own manager, as we worked through the merger . . . [a]s

these two groups become more integrated and with the adoption of

OneHelp as our ticketing system it is clear there needs to be one

operational manager of the Desktop Services team to manage the day

to day support activities."

Gianoulis further proposed that the new manager of

desktop services position be given to Beckman, citing her "history

and performance of actively managing a support group" and

"knowledge of service management systems," as well as her role in

developing "OneHelp," the ticketing system. A job description for

the "manager of desktop services" position awarded to Beckman had

been completed in October 2009, but, contrary to written BU policy,

-5-
was never posted in its job listings (though Gianoulis did discuss

the written reorganization proposal with an employee in BU’s human

resources department, who said she had "no objections"). Nor did

Schroeder or Gianoulis consider any candidates for the job besides

Beckman.

Gianoulis also proposed that Dunn--who was 47 years old

at that point--would be laid off. The restructuring of the desktop

services group affected other older employees as well, though none

adversely: three employees in their 40s received promotions, while

a 56 year-old and a 60-year-old retained their jobs. Schroeder

approved Gianoulis’s proposal and, on May 25, 2010, Gianoulis

informed Dunn that his job was being eliminated due to

restructuring.

At his deposition in this case, Gianoulis testified that

Dunn "was never considered for" the manager of desktop services

position because Beckman "was already doing the role" in her prior

job as manager of desktop services-central support. Gianoulis

explained that, during Beckman’s time in that job, she "provided

desktop support to students, staff and faculty . . . in a high

volume environment." Dunn’s role as field support manager,

Gianoulis recalled, was more limited, "only supporting a select

group of administrative staff" and doing "a lot of vendor

negotiation," as well as "business applications support" for the

"select group of clients that he supported." Gianoulis added that

-6-
Dunn had "told [him] specifically that he wasn’t interested in

desktop support, he was interested in Windows system management,"

which he considered "his area of expertise."

B.

In November 2010, Dunn filed a charge of discrimination

against BU with the Massachusetts Commission Against

Discrimination. He subsequently withdrew the charge and brought

suit against BU in Massachusetts Superior Court, claiming age

discrimination in violation of both the federal Age Discrimination

in Employment Act, 29 U.S.C. §§ 621 et seq., and its state-law

analog, Mass. Gen. Laws ch. 151B, § 4.1B. BU removed the case to

the district court, invoking its federal question jurisdiction. 28

U.S.C. § 1331.

In due course, BU filed a motion for summary judgment,

see Fed. R. Civ. P. 56, arguing that Dunn could not establish a

prima facie case of age discrimination under either federal or

state law and that, in any event, BU had legitimate,

nondiscriminatory reasons for laying off Dunn, who lacked evidence

that those reasons were pretextual. Dunn’s first response to BU’s

summary judgment motion was a motion seeking voluntary dismissal of

his ADEA claim with prejudice, see Fed. R. Civ. P. 41(a)(2), and

for the district court to decline to exercise supplemental

jurisdiction over the remaining state-law age discrimination claim,

see 28 U.S.C. § 1367(c)--relief which, if granted, would have

-7-
resulted in remand of the case to the superior court. As the basis

for this motion, Dunn stated that "the standard on summary judgment

for discrimination claims arising under federal law is

significantly less liberal than the standard on summary judgment

for discrimination claims arising under state law." In a decision

that Dunn has not questioned on appeal, the district court

dismissed the ADEA claim, but refused to remand the chapter 151B

claim to state court, declaring that "such forum shopping is

clearly improper." Dunn v. Trs. of Boston Univ., No. 11-10672,

2013 WL 5235167, at *2 (D. Mass. Sept. 16, 2013).

After Dunn filed his opposition to BU’s summary judgment

motion, the district court heard oral argument on it and, as noted

at the outset, granted the motion, ruling that Dunn had not made

out a prima facie case that he was laid off because of his age. 

Id. at *7. As a result, the district court did not reach BU’s

alternative argument that, even if Dunn could establish a prima

facie case of age discrimination, he could not demonstrate a

genuine issue as to whether BU’s stated reasons for laying him off

were pretextual. This appeal followed.

II.

Summary judgment is appropriate where "the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). "A dispute is genuine if the evidence about the fact is

-8-
such that a reasonable jury could resolve the point in the favor of

the non-moving party. A fact is material if it has the potential

of determining the outcome of the litigation." Patco Constr. Co.

v. People’s United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012)

(quotation marks omitted).

We review the district court’s entry of summary judgment

de novo, "draw[ing] all reasonable inference in favor of the nonmoving party while ignoring conclusory allegations, improbable

inferences, and unsupported speculation." Alicea v. Machete Music,

744 F.3d 773, 778 (1st Cir. 2014) (quotation marks and bracketing

omitted). We are not wedded to the district court’s rationale, but

may affirm the entry of summary judgment on any ground supported by

the record. See, e.g., Boston Prop. Exch. Transfer Co. v.

Iantosca, 720 F.3d 1, 10 (1st Cir. 2013).

III.

"Generally, a plaintiff who is terminated from [his]

position establishes a prima facie case of discrimination by

producing evidence that [1] [he] is a member of a class protected

by [Mass. Gen. Laws] ch. 151B; [2] [he] performed [his] job at an

acceptable level; [3] [he] was terminated; and [4] [his] employer

sought to fill [his] position by hiring another individual with

qualifications similar to [his]." Sullivan v. Liberty Mut. Ins.

Co., 825 N.E.2d 522, 531 (Mass. 2005). As the Supreme Judicial

Court has explained, however, the "fourth element is nonsensical in

-9-
a reduction in force case: the plaintiff is not replaced, nor does

[his] employer ‘seek to fill’ the position, for the very purpose of

a workforce reorganization is generally to reduce the number of

employees." Id.

In Sullivan, then, the Supreme Judicial Court

"consider[ed] how the fourth element of a prima facie case must be

varied so that a plaintiff who is laid off during a reduction in

force may establish a prima facie case of unlawful discrimination,"

id., holding that a plaintiff does so "by producing some evidence

that [his] layoff occurred in circumstances that would raise a

reasonable inference of unlawful discrimination." Id. at 533-34;

see also Woodward v. Emulex Corp., 714 F.3d 632, 637-38 (1st Cir.

2013) (explaining that "[w]here the employer does not replace the

plaintiff with a new employee . . . some evidence that the

employee’s layoff occurred under circumstances that would raise a

reasonable inference of discrimination is necessary to establish

the fourth prong" of a prima facie age discrimination case under

Massachusetts law).

 Applying Sullivan, the district court ruled that Dunn had

failed to produce any such evidence. Dunn challenges this ruling

on two principal grounds. First, he argues that the transfer of

his responsibilities to the younger Beckman sufficed, in and of

itself, to establish a prima facie case of age discrimination,

regardless of the additional circumstances of his layoff. That is

-10-
incorrect, as we explain below. Second, Dunn argues that the

circumstances of his layoff demonstrated a reasonable inference of

age discrimination in that (a) "Schroeder and Gianoulis deviated

from the standard application of University hiring policies and

procedures" in giving Beckman the manager of desktop services job,

(b) Dunn’s qualifications for that position were superior to those

of Beckman, and (c) Gianoulis stated to Dunn, in April 2010, that

Gianoulis was "really looking for a younger person" for a different

job, that of service desk manager. As discussed infra, we conclude

that, even if these facts suffice to make out a prima facie case

under Mass. Gen. Laws ch. 151B, § 4.1B, they fail to create a

genuine issue as to whether BU’s stated reasons for laying Dunn off

were pretexts for age discrimination.

A.

Dunn argues that "[t]he mere fact that an 18 year

difference existed between Dunn and Beckman should be sufficient

for Dunn to establish a prima facie case." In Sullivan, however,

the Supreme Judicial Court specifically declined to follow

decisions holding that a plaintiff challenging his layoff can

establish the fourth element of a prima facie case of

discrimination "by showing, in [an] age discrimination claim, that

an employee at least five years younger than [him] was retained." 

825 N.E.2d at 532 (quotation marks omitted). The Supreme Judicial

Court "rejected that formulation, as such evidence is insufficient

-11-
to establish a legally mandatory, rebuttable presumption of

unlawful discrimination." Id. (quotation marks omitted).

Emphasizing that "his entire job was given to Beckman,"

Dunn argues that he made out a prima facie case on the theory that

"the employer retained unprotected or younger workers in the same

position." It is true that, in Sullivan, the court acknowledged

that, "in some reduction in force cases, the fact that an employer

retained in the plaintiff’s same position an employee outside the

plaintiff’s protected class may indeed be sufficiently probative to

allow a factfinder to believe that the employer intentionally

discriminated against the plaintiff." Id. at 533. In a case that

Sullivan called a "satisfactory" model for Massachusetts law, id.

at 532, this court has endorsed the same view as a matter of

federal employment law. See Currier v. United Techs. Corp., 393

F.3d 246, 256 (1st Cir. 2004).

What Dunn fails to acknowledge, however, is that this

court has also (in another case cited approvingly in Sullivan, 825

N.E.2d at 532) expressly rejected the argument that an employer’s

"delegation of duties to other individuals not in [the plaintiff’s]

protected class amount[s] to retaining individuals in the same

position" so as to make out a prima facie case of discrimination

under either federal or Massachusetts law. Lewis v. City of

Boston, 321 F.3d 207, 216 (1st Cir. 2003). As this court

explained, "[m]erely demonstrating that, as a result of the

-12-
reduction in force, the employer consolidated positions or

allocated duties of discharged employees to other existing

employees does not itself raise a reasonable inference that the

employer harbored discriminatory animus toward any one employee."1

Id. Here, then, the fact that BU reorganized the desktop services

group by consolidating the field and central support manager jobs

into a single position, and awarding that position to an employee

less than 40 years old instead of to Dunn, does not raise a

reasonable inference that the basis for that decision was Dunn’s

age (any more than it would suggest, since Beckman is a woman and

Dunn is not, that the basis for that decision was Dunn’s sex).

Despite Dunn’s suggestion to the contrary, it makes no

difference that, while his position was eliminated in the

reorganization, "the functions that Dunn performed were not." 

Indeed, by definition, a reduction-in-force accomplished by

consolidating positions and reallocating duties results in the

1

Dunn seems to suggest that this case does not present a true

"consolidation" or "reallocation," either because "Beckman was not

doing any part of Dunn’s job as desktop services manager"

previously, or because "Dunn’s job functions were not dispersed

among several different employees" but given entirely to Beckman. 

We fail to see how either of those facts is essential to a

"consolidation" or "reallocation" as this court described those

concepts in Lewis, and Dunn does not explain further. It suffices

to say, then, that we find Lewis instructive because the

reorganization at issue here quite closely resembles the

reorganization at issue there. 321 F.3d at 212 (noting that the

defendant decided "to eliminate the [plaintiff’s] position and to

spread [his] duties to other positions," including a "new position,

which consolidated the bulk of [the plaintiff’s] duties with

[other] responsibilities" of a different existing position).

-13-
elimination of one or more positions, rather than in the

elimination of their functions. Again, this court held in Lewis

that "an employee must come forward with something more then

evidence of the inevitable transfer of his or her responsibilities

to existing employees" to make out a prima facie case of a

discriminatory layoff. See id.

Dunn maintains that such a transfer demonstrates "the

continuing need for the work that the employee was performing prior

to his termination"--a fact which, he says, this court deemed

"sufficient to make out a prima facie case of discrimination" in

its decisions in Rodriguez-Torres v. Caribbean Forms Mfr. Inc., 399

F.3d 52 (1st Cir. 2005) and Hidalgo v. Overseas Condado Ins.

Agencies, Inc., 120 F.3d 328 (1st Cir. 1997). Dunn’s reliance on

those cases is misplaced. In relevant part, they recognize simply

that an employer’s continuing need for the plaintiff’s services can

establish the fourth element of a prima facie case of

discriminatory termination, i.e., that he or she was replaced, even

if the employer does not in fact hire a replacement. See

Rodriguez-Torres, 399 F.3d at 59; Hidalgo, 120 F.3d at 332-33.

As already noted, though, the requirement that a

plaintiff prove his "replacement" as part of his prima facie

showing of discriminatory termination "is nonsensical in a

reduction in force case," where "the plaintiff is not replaced"

since "the very purpose of a workforce reorganization is generally

-14-
to reduce the number of employees."2 Sullivan, 825 N.E.2d at 531;

see also Woodward, 714 F.3d at 638 ("The fourth prong [of the prima

facie case standard for discriminatory termination claims] does not

apply to a reduction-in-force case . . . where the employer does

not replace the plaintiff with a new employee."). Dunn is wrong,

then, that BU’s "continuing need" for someone to perform his

duties, as evinced by the fact of their reassignment to Beckman,

establishes a prima facie case that he was terminated due to his

age. The district court was correct that, for Dunn to make out

such a case, he had to come forward with evidence beyond the mere

fact that BU laid him off and reassigned his responsibilities to an

employee younger than 40. See Sullivan, 825 N.E.2d at 531.

B.

Dunn also argues that, even putting that fact aside, he

produced additional "evidence that [his] layoff occurred in

circumstances that would raise a reasonable inference of unlawful

discrimination" so as to make out a prima facie case that he was

terminated due to his age. Id. at 533-34. If a plaintiff

successfully establishes a prima facie case of employment

discrimination, the defendant must respond "by articulating a

lawful reason for its employment decision and producing credible

evidence that the reason or reasons advanced were the real

2

Indeed, both Rodriguez-Torres, 399 F.3d at 59 n.5, and

Hidalgo, 120 F.3d at 334 n.5, specifically noted that they did not

involve reductions-in-force.

-15-
reasons." Id. at 538 (quotation marks and bracketing omitted); see

also, e.g., Woodward, 714 F.3d at 638 (quoting McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). The defendant’s "burden

at this stage is one of production and not persuasion; it need not

prove that the reasons were nondiscriminatory." Sullivan, 825

N.E.2d at 538 (quotation marks omitted); see also Woodward, 714

F.3d at 638. If the employer meets its burden of production,

"[t]he burden returns to [the plaintiff] to establish that the

basis of [the defendant’s] decision was unlawful discrimination by

'adducing evidence that the reasons given by [the defendant] for

its actions were mere pretexts to hide such discrimination.'" 

Sullivan, 825 N.E.2d at 550 (quoting Lewis, 321 F.3d at 214). 

The district court did not decide whether BU had

articulated a nondiscriminatory reason for terminating Dunn or, if

so, whether Dunn had responded with evidence that the stated reason

was a pretext for age discrimination. Instead, the district court

ruled that Dunn, relying on his mistaken theory that the

reassignment of his duties to an employee under 40 could itself

establish a prima facie case of age discrimination, had not come

forward with additional evidence on that point, i.e., that his

layoff occurred in circumstances that would raise an inference of

unlawful discrimination. We need not decide whether that ruling

was correct. Again, we may affirm on any basis supported by the

record. See Boston Prop. Exch. Transfer Co., 720 F.3d at 10. 

-16-
Because, in trying to demonstrate pretext to the district court,

Dunn relied on the same evidence he used to try to make a prima

facie case, we can simply assess whether that evidence demonstrates

a genuine issue of pretext without assessing whether the same

evidence demonstrates a prima facie case. Cf. Lewis, 321 F.3d at

216-17 (rejecting the argument that plaintiff had shown a prima

facie case of a discriminatory layoff by showing the reassignment

of his duties to nonprotected employees, then proceeding to rule

that, even had he made out a prima facie case, the record lacked

evidence that the employer’s explanation for the layoff was a

pretext for discrimination). Here, the record is devoid of

evidence that BU’s stated reasons for laying off Dunn are pretext

for discriminating against him due to his age.

To start with, BU has articulated legitimate reasons,

with support in the record, both for eliminating Dunn’s job, as its

duties were consolidated with those of Beckman’s to create the

manager of desktop services position, and for awarding that

position to Beckman, rather than to Dunn. As Gianoulis explained

in proposing these changes, the increasing integration of the field

and central support divisions of the desktop services group called

for their consolidation under a single manager. See AlvaradoSantos v. Dep’t of Health of P.R., 619 F.3d 126, 132 (1st Cir.

2010) (recognizing that "greater uniformity and efficiency" are

legitimate reasons for consolidating managerial responsibilities). 

-17-
Gianoulis also explained that the desktop services job should go to

Beckman in light of her "history and performance of actively

managing a support group" and "knowledge of service management

systems." Those reasons are also facially legitimate. See, e.g.,

Sullivan, 825 N.E.2d at 538 (ruling that, in deciding which

employees to lay off, an employer can "determine which of [them]

would best meet its ongoing business needs," including by

considering their "particular expertise").

The question becomes, then, whether the record contains

"'evidence sufficient to support a jury verdict that it was more

likely than not that the[se] articulated reason[s] [were] a pretext

for unlawful discrimination.'" Woodward, 714 F.3d at 638 (quoting

Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309

(Mass. 1997) (further quotation marks omitted)). In the district

court, Dunn argued that he had demonstrated a genuine issue as to

pretext on three grounds: (1) Beckman’s alleged lack of

qualifications for the manager of desktop services job; (2) the

"deviat[ion] from the standard application of University hiring

policies and procedures" in awarding that job to Beckman; and (3)

Gianoulis’s statement to Dunn, in April 2010, that Gianoulis was

"really looking for a younger person" for the position of service

desk manager. For the reasons set forth below, we reject these

arguments.

-18-
First, Dunn asserts that "Beckman’s credentials were not

even remotely what was qualified" for the manager of desktop

services job created as a result of the consolidation. Dunn’s only

record support for this assertion, however, is the fact that,

previously, "Beckman worked in the IT Help Center as a break-fix

technical services manager doing the same type of basic 'break-fix'

hardware repair work that Dunn had performed upon his graduation

from college." This argument, however, focuses on Beckman’s

responsibilities for BU when she first started working there--upon,

and even prior to, her graduation from college3--to the exclusion

of the additional responsibilities she took on as she was promoted

to manager of technical services, in 2006, and manager of desktop

services-central support, in February 2010.

Moreover, while performing those jobs, Beckman developed

the "history and performance of actively managing a support group"

and "knowledge of service management systems," including ticketing

systems, that Gianoulis, in recommending Beckman to be manager of

3

Dunn denigrates the jobs that Beckman held prior to working

at BU as "a waitress at a country club, a clerk in a liquor store,

and as a development associate at [her college] seeking donations

from alumni." We fail to see how the jobs that Beckman held prior

to working at BU (when, again, she was still in college) cast doubt

on her qualifications to assume the role of desktop services

manager some eight years later. Cf. Somers v. Converged Access,

Inc., 911 N.E.2d 739, 752 (Mass. 2009) (reasoning that differences

in employee’s college experiences are insufficient to establish

differences in their qualifications "when many years have passed

since their graduation and each had substantial work experience" in

the relevant field). 

-19-
desktop services, had identified as important to the position.4

Indeed, as Gianoulis later explained, Beckman "was already doing

the role" of desktop services manager during her stint as central

support manager, where she "provided desktop support to students,

staff and faculty . . . in a high volume environment." Dunn, in

his role as field support manager, had been providing those

services to a more limited client base and, in any event, had

specifically told Gianoulis that "he wasn’t interested in desktop

support."5

Based on these undisputed facts, no reasonable jury could

find, as Dunn urges, that "the stark disparity in [his] credentials

and Beckman’s credentials was so manifest that the only way Beckman

could have been selected for the [manager of desktop services] job

was if age played an impermissible role." As this court has

4

Dunn asserts that Beckman’s "use of a ticketing system was

limited to basic tracking of orders . . . and not a sophisticated

enterprise-level, large scale IT service management model." But

that assertion finds no support in the record. Dunn relies solely

upon the deposition testimony of Rosman (his former boss in the

distributed computing group) as to the type of ticketing system

that Rosman "would think" or "imagine" was in use in the BU

computer store during Beckman’s time there. Speculation, of

course, is of no use on summary judgment, see, e.g., Rivera Colón

v. Mills, 635 F.3d 9, 12 (1st Cir. 2011), and, in any event,

Rosman’s testimony--like Dunn’s argument in general--speaks only to

Beckman’s time at the computer store. 

5

Dunn says in his reply brief that he "disputes" having said

that, but does not point to anything of evidentiary quality (e.g.,

his own testimony denying Gianoulis’s account). "[A] party may not

generate a trial-worthy dispute at summary judgment merely by

presenting unsubstantiated allegations in its memoranda." Nieves

v. Univ. of P.R., 7 F.3d 270, 280 (1st Cir. 1993).

-20-
instructed, a plaintiff cannot make pretext a trialworthy issue by

"essentially relying on his personal belief that he was more

qualified" for a job that his employer gave to someone outside of

the protected class. Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 28

(1st Cir. 2010) (citing Shorette v. Rite Aid of Me., Inc., 155 F.3d

8, 15 (1st Cir. 1998)); see also Somers, 911 N.E.2d at 752 (ruling

that plaintiff could not demonstrate pretext for the defendant’s

hiring decision simply by "pointing to his resume and claiming that

he had similar experience" to the non-protected employee who was

hired).

Second, Dunn relies on the fact that "Schroeder and

Gianoulis deviated from the standard application of University

hiring policies and procedures" in selecting Beckman to be the

manager of desktop services. As Dunn points out, this court has

recognized that "[d]eviation from established policy or practice

may be evidence of pretext." Brennan v. GTE Gov’t Sys. Corp., 150

F.3d 21, 29 (1st Cir. 1998) (applying both federal and

Massachusetts age discrimination law).

So far as we can tell, however, the only "deviation from

established policy" that happened in this case was that the job

description for the manager of desktop services position was never

posted in the university job listings.6 And we simply cannot see

6

Dunn also emphasizes that Schroeder and Gianoulis did not

"review any resumes" or "conduct any interviews," but he points to

nothing in the record suggesting that BU had any policy imposing

-21-
any logical connection between that omission and the question

before us, i.e., whether a rational jury could find that BU’s

stated reasons for giving the job to Beckman rather than to Dunn

are in fact pretext for discriminating against Dunn on account of

his age. Cf. Vega-Colon, 625 F.3d at 28 (observing that the "inner

workings" of defendant’s hiring process "are not relevant, so long

as [plaintiff’s] status was not a motivating or substantial factor

in [the] decision not to hire him").

Dunn offers only that "a reasonable jury could infer that

[his] supervisors did not follow through with established hiring

procedures because they knew that Beckman would not be qualified

for the job." Insofar as this assertion does not simply rehash

Dunn’s attack on Beckman’s qualifications, it fails to explain how

following "established hiring procedures" would have thwarted the

plan to give the manager of desktop services job to Beckman. 

Indeed, the only record evidence on this point is that Gianoulis

shared that plan with a representative from the university’s human

resources department, who voiced "no concerns" with it. More

importantly, we fail to see how an attempt to circumvent a job

posting procedure in order to hire a supposedly less qualified

person suggests ageist motivations, in any event. We are left,

then, with the sort of "criticisms of [an employer’s] decision

those requirements, particularly when giving a new job to someone

who was already working there.

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making process" attendant to a reduction-in-force that "fail to

reveal any hidden animus" as a matter of Massachusetts law. 

Sullivan, 825 N.E.2d at 542.

Finally, Dunn relies on "ageist statements by Dunn’s

supervisors from which a reasonable jury could conclude that [his]

age played a role in his termination." In support of this

argument, Dunn asserts that "Schroeder and Gianoulis wanted to

project a 'new' youthful image from what they viewed as the

'client-facing' portions of the IT Help Center, and to them [Dunn]

was purportedly 'resistant' to technological change, not

sufficiently forward-looking, and wanted to just 'recreate' the

past." The places in the record that Dunn cites in support of this

assertion, however, do not support much of it--they contain nothing

that could be construed as an expression, or even a betrayal, of

any desire to project a "new, youthful image," as to "client-facing

portions of the IT Help Center" or otherwise.

It was only in explaining why introducing a ticketing

system "was a real uphill battle for [Dunn] and his team" that

Gianoulis cited "[r]esistance to change . . . . [T]hey had been

doing things a long time along the way without a ticketing system." 

And it was only in describing his reaction to Dunn’s proposal for

reorganizing the department that Gianoulis testified that Dunn

"wanted to recreate the past. He wanted to go back to the overhead

and the structure that we had" (in response to which, Gianoulis

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recalled, he had "told [Dunn] to stop focusing on the past . . . .

[T]his is a time of change, you’ve got to move forward").

Under Massachusetts law, such "[r]emarks that are

facially ambiguous and may reflect managerial concerns regarding an

employee who declines to adapt to changed business practices,

rather than [the manager’s] preference for more youthful workers,"

cannot provide the evidentiary fuel for an age discrimination

claim. Sullivan, 825 N.E.2d at 536-37 n.24; see also Thomas v.

Sears, Roebuck & Co., 144 F.3d 31, 33-34 & n.1 (1st Cir. 1998)

(ruling that supervisor’s comments that the plaintiff "had been

around too long" and "wasn’t able to change," made in response to

his "outspoken . . . disagreement with [defendant’s] change in

business policy," were not "a coded allusion cloaking age

discrimination" and thus made "no showing that" the defendant’s

stated reason for terminating the plaintiff during a restructuring

was pretextual under Massachusetts law).

Dunn also heavily relies on his own testimony that

Gianoulis, while discussing the creation of a new "service desk

manager" position in April 2010, said "he [was] really looking for

a younger person in that role." This comment also does not suffice

to demonstrate a genuine issue as to whether BU’s stated reasons

for reassigning the duties of Dunn’s job to Beckman as the new

manager of desktop services--a position different from the service

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desk manager job that Gianoulis was discussing with Dunn7--are mere

pretext for age discrimination.

As this court has explained, "[w]hile evidence of agerelated comments may be sufficient to support an inference of

pretext and discriminatory animus" behind a plaintiff’s

termination, that inference does not follow where the plaintiff

"fail[s] to adduce sufficient evidence that the remarks were both

temporally and causally related to [the defendant’s] decision to

discharge him." Melendez v. Autogermana, Inc., 622 F.3d 46, 54

(1st Cir. 2010) (emphasis added). Here, although Gianoulis stated

his preference for "a younger person" for the service desk manager

job just a few weeks before making the decision to eliminate Dunn’s

position, Dunn has not pointed to any evidence suggesting that

Gianoulis also preferred a "younger person" for the desktop

services manager position that he later awarded to Beckman, or even

that he preferred younger workers generally.

To the contrary, it is undisputed that, in carrying out

the May 2010 reorganization, Gianoulis promoted three employees in

their 40s, and retained others who were 56 and 60 years old; Dunn

7

Aside from what appears to be an organizational chart, which

is reproduced in print to small to read, Dunn does not point to

anything in the record supporting his assertion that these

positions "are comparable in terms of seniority." To the contrary,

as noted above, Dunn himself testified that the service desk

manager position was at a "lesser grade [and] pay" than the job he

held prior to his discharge--which, of course, was combined with

Beckman’s then-existing job to create the manager of desktop

services position. 

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was the only employee over 40 who suffered any adverse consequences

in the 2010 reorganization.8

 So no rational trier of fact could

take Gianoulis’s statement that he was "looking for someone

younger" for the service desk manager position in April 2010 as an

indication that his stated reasons for subsequently reassigning

Dunn’s duties to Beckman and terminating him were pretext for

discriminating against Dunn because he was older than 40--when, as

part of the same reorganization, all other employees age 40 or

older were either retained or promoted. See Torrech-Hernandez v.

Gen. Elec. Co., 519 F.3d 41, 55-56 & n.11 (1st Cir. 2008)

(rejecting plaintiff’s argument that his supervisor’s comment

reflecting a negative "feeling toward older employees in general"

created a triable issue as to pretext, in light of supervisor’s

promotion of other older employees to similar positions).

IV.

For the foregoing reasons, we affirm the district court’s

entry of summary judgment for BU.

8

Dunn asserts that "[a]ll of the new desktop services group

employee hires were under the age of 40," citing to what appears to

be a spreadsheet listing the names, birth years, dates of hire, and

positions of employees in that group as of an unspecified time. 

While this exhibit indeed shows that all employees hired into the

group since March 2009 were under 40, all of them were hired into

non-managerial positions, and, moreover, Dunn points to no evidence

suggesting that anyone 40 or older even applied for any of those

jobs. By itself, then (which is how Dunn has presented it), the

list fails to provide any support for Dunn’s age discrimination

claim. See Woodward, 714 F.3d at 639-40

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