Not for Publication in West’s Federal Reporter 

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2608

CHARLES F. SCHMITZ,

Plaintiff, Appellant,

v.

INTEL CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

John D. Corrigan, with whom O'Malley and Harvey, LLP, were on

brief, for appellant.

Michele A. Whitham, with whom Vijay Moses and Foley Hoag LLP,

were on brief, for appellee.

June 10, 2003
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Per Curiam. Plaintiff Charles F. Schmitz appeals the

district court's award of summary judgment to defendant Intel

Corporation on his state law claim of unlawful age discrimination.

See Mass. Gen. Laws ch. 151B. Schmitz contends that the court

erred in concluding that his claim was both untimely and

inadequately supported to withstand summary judgment. We bypass

the court's statute of limitations ruling and proceed directly to

the merits, summarizing the facts relevant to our decisional basis

in accordance with the dictates of Fed. R. Civ. P. 56.

In May 1998, Intel acquired from Digital Semiconductor a

computer chip manufacturing facility known as "Fab 17" located in

Hudson, Massachusetts. Following the transaction, Intel

transferred Schmitz (who had been with Digital since 1990 and had

been performing equipment maintenance in a Digital laboratory) to

a position as a manufacturing technician in Fab 17's manufacturing

department. On June 23, 1998, Schmitz turned 48 years old.

The manufacturing department, one of several departments

within Fab 17, was responsible for manufacturing computer chips and

maintaining Fab 17's equipment. Intel assigned four shifts to work

within the manufacturing department and organized the employees on

each shift into eight functional areas. Intel further divided the

employees within each functional area into "module teams." Intel

assigned Schmitz, who worked "Shift 7," to the "Front End" module

team within the manufacturing department's "Etch" functional area.
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 During the summer of 1998, Fab 17 was operating at only

25 percent of its manufacturing capacity. In order to keep its

pricing competitive, Intel decided to lay off approximately 450

employees, including approximately 110 of its 320 manufacturing

technicians. Intel's senior management established a hierarchy of

criteria that would be used in selecting which manufacturing

technicians would be retained. The management team charged with

implementing the layoffs (the "Selection Committee") was to

prioritize the retention of workers with skills critical to keeping

the manufacturing department fully operational despite a reduced

workforce. In determining which workers possessed these critical

skills, the Selection Committee was to look at the number and

quality (there were three skill levels) of operational proficiency

"certifications" that each employee had earned. Next, the

Committee was to prefer employees with high job performance

ratings. Finally, as a tie-breaker, the Committee was to prefer

employees with seniority. 

As it happened, the Selection Committee deemed the first

criterion a sufficient predicate upon which to base its decisions

and never consulted information other than that relevant to this

criterion. Thus, in making its selections, the Committee had no

information about the job performance ratings, length of service,

or ages of the manufacturing department employees subject to

layoff. Nonetheless, at a September 21, 1998, meeting convened to
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notify employees about the impending workforce reduction, a

management representative suggested that job performance and

seniority had played a role in the layoff decisions.

In building Fab 17's new manufacturing department, the

Selection Committee first attempted to identify the minimum number

of employees within each module team necessary to perform all of

the team's work, and then added employees from different module

teams (but from within the same functional area) if necessary to

fill any skills gaps. The Committee did not move manufacturing

technicians between or among shifts and functional units; instead,

it treated each functional area within each shift as a distinct

unit for decisional purposes. 

The Selection Committee retained only eleven of the

twenty-seven manufacturing technicians who had previously been

working in the Shift 7 Etch functional area. The persons chosen to

staff the new Shift 7 Etch had earned the most, and the highest

levels of, certifications as of the last week in August 1998 -- the

cut-off date used by the Committee. In the Committee's estimation,

these employees would be able to run Shift 7 Etch by themselves.

The Committee also transferred into Shift 7 Etch a thirty-eight

year old engineering technician (who had been laid off pursuant to

a distinct and unrelated selection process) named David O'Connor.

Intel regarded engineering technicians as having much higher skill

sets than manufacturing technicians, and the Committee decided that
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O'Connor's skills would complement those of the eleven remaining

Shift 7 Etch manufacturing technicians. 

Schmitz was the only manufacturing technician who had

zero current certifications (Intel only considered a certification

"current" if the employee had performed the process for which he or

she was certified within Fab 17 in the previous year) at the time

the Committee made its selections. Consequently, the Committee

decided to lay Schmitz off. Schmitz was notified of the

Committee's decision in a letter dated September 22, 1998. In

December 1998, Schmitz received a final performance review in which

Intel mistakenly identified him as an employee with more technical

and leadership responsibilities than his personnel grade would

warrant. As a result, the review unfairly cited Schmitz's lack of

leadership skills and technical proficiency as causes for concern.

On January 16, 1999, Intel terminated Schmitz's employment. 

Because Schmitz believed that Intel carried out its

workforce reduction with an eye towards purging Fab 17 of some of

its older workers (including himself), he filed a charge of

discrimination with the Massachusetts Commission Against

Discrimination and subsequently sued Intel under Massachusetts'

anti-discrimination statute -- Mass. Gen. Laws ch. 151B -- in state

superior court. Intel removed the case to the district court on

the basis of diversity jurisdiction and in due course moved for

summary judgment. The court granted the motion on a number of
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grounds, only one of which is relevant to our analysis. The court

determined that, to the extent that Schmitz had adequately pleaded

a disparate treatment claim at all, the claim foundered on the

complete absence of evidence of discriminatory animus towards him.

Schmitz contests this determination, arguing that a factfinder

reasonably could conclude from the record that Intel had not

truthfully explained the reason for his termination and that

(contrary to the court's "animus is necessary" ruling) such

evidence is all that is needed to forestall summary judgment under

Massachusetts law. We reject on factual grounds the premise of

Schmitz's argument and thus do not address Schmitz's assertion of

legal error.

Schmitz asserts that, alone or in combination, four

pieces of evidence in the summary judgment record permit a finding

that Intel was being less than fully truthful in explaining that

Schmitz had been discharged because of a lack of certifications.

Schmitz first contends that evidence of certifications Schmitz had

earned with Digital between 1995 and 1997 and with Intel in

September 1998 calls into question whether the Selection Committee

genuinely believed that he had zero certifications. But Schmitz

has no answer to Intel's supported rejoinder that Schmitz's Digital

certifications were not current and that his Intel certifications

were earned after layoff decisions already had been made. 

So too with the second and third portions of the record cited
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by Schmitz: that Intel "replaced" Schmitz with the younger

O'Connor and misstated (at the September 21, 1998 meeting) the

criteria that actually guided the layoff decisions. Schmitz has no

response to Intel's evidence that O'Connor was retained instead of

Schmitz because he possessed skills that Schmitz lacked, and that

the management representative who presented at the September 21

meeting simply erred in referencing the originally developed

criteria instead of the ground on which decisions actually were

made. Finally, Schmitz has not explained how the fourth

evidentiary item to which he points -- evidence that Intel

mistakenly assumed he was in a higher personnel grade during his

December 1998 performance review -- casts doubt on the veracity of

the reason given for a termination decision that was made months

earlier. And we are unable to make the connection on our own.

Affirmed.