GAUDETTE v. CORNING INCORPORATED

1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN GAUDETTE, 	)
)
Plaintiff, 	)
v. 	) 	No. 2:23-cv-00128-LEW
)
CORNING INCORPORATED, 	)
)
Defendant. 	)
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff 	Stephen 	Gaudette 	filed 	this 	lawsuit 	against 	Defendant 	Corning
Incorporated, asserting a claim of age discrimination in violation of the Maine Human
Rights Act (“MHRA”). Before the Court is Defendant’s Motion for Summary Judgment
(ECF No. 51). For the reasons below, the Motion is DENIED.
BACKGROUND
The following facts are drawn from the parties’ statements of material facts
submitted in accordance with Local Rule 56 (ECF No. 51-2, 54, and 62) and recited in the
light most favorable to the Plaintiff. The Plaintiff Stephen Gaudette was 62 years old when
he worked in the Molding Department at a Corning production facility in Kennebunk,
Maine. Pl. Statement of Add’l Material Facts (“PSMF”) ¶ 1 (ECF No. 54); Def. Resp. to
PSMF ¶ 1 (ECF No. 62). The Plaintiff’s employer was Staffmark, a staffing agency that
the Defendant engaged to supply temporary workers. 	Def. Statement of Material Facts
(“DSMF”) ¶ 7 (ECF No. 51-2); Pl. Opp. to DSMF ¶ 1 (ECF No. 54). 	According to
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Defendant’s practice at the time, temporary workers were eligible to apply for conversion
to regular employment at Corning through an online portal after 90 days on the job. DSMF
¶¶ 6-7; Pl. Opp. to DSMF ¶¶ 6-7. Temporary workers received performance evaluations
at 30 days, 45 days, 60 days, and 90 days. 	DSMF ¶ 8; Pl. Opp. to DSMF ¶ 8. 	The
Defendant would consider these evaluations in determining whether to extend interviews
to temporary workers who had applied for regular employment, although there was no
formal threshold that applicants were required to meet to qualify. DSMF ¶ 9; Pl. Opp. to
DSMF ¶ 9; Def. Resp. to PSMF ¶ 72; see also Conboy Dep. Tr. 12:10-22 (ECF No. 55, Ex.
2).
Corning 	evaluated 	temporary 	worker 	performance 	across 	seven 	areas
(communication skills, professionalism, punctuality, quality of work, quantity of work,
teamwork/flexibility, and necessary skills to complete tasks) and rated each on a scale of
one (“Extremely Dissatisfied”) to five (“Extremely Satisfied”). DSMF ¶¶ 10-11; Pl. Opp.
to DSMF ¶¶ 10-11. The Plaintiff’s performance as a temporary worker was reviewed as
follows:
• 	The Plaintiff’s 30-day evaluation rated his performance in “quantity of work” as
“Slightly Dissatisfied” (a numeric score of 2). 	DSMF ¶ 17. 	In the remaining
categories, he received one “Very Satisfied” (4) and five assessments of “Somewhat
Satisfied” (3). Pl. Opp. to DSMF ¶ 17. This combination of evaluations produced
an overall performance rating of 21. DSMF ¶ 18; Pl. Opp. to DSMF ¶ 18.
• 	The Plaintiff’s 45-day evaluation rated his performance in three areas as “Extremely
Dissatisfied” (1). DSMF ¶ 20. He also received one “Slightly Dissatisfied” (2) and
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two assessments of “Somewhat Satisfied” (3). 	DSMF ¶ 21. 	This combination of
evaluations produced an overall performance rating of 13. DSMF ¶ 22.1
• 	The Plaintiff’s 60-day evaluation rated his performance in “teamwork/flexibility”
as “Slightly Dissatisfied” (2) and in all other categories as “Somewhat Satisfied”
(3), for an overall performance rating of 20. DSMF ¶¶ 24-26; Pl. Opp. to DSMF ¶¶
24-26.
• 	The Plaintiff’s 90-day evaluation rated his performance in three areas as “Slightly
Dissatisfied” (2) and as “Somewhat Satisfied” (3) in all other areas, for an overall
performance rating of 18. DSMF ¶¶ 28-30; Pl. Opp. to DSMF ¶¶ 28-30.
The Plaintiff applied for regular employment with Corning in March 2021, as he
was eligible to do as a temporary worker with more than 90 days on the job. DSMF ¶¶ 6,
31; Pl. Opp. to DSMF ¶¶ 6, 31. 	Sometime after applying, the Plaintiff showed Dustin
Pirente, a Human Resources Consultant, an email on his phone indicating that he had been
offered a permanent position in the Stripette Department and asked if the offer could be
changed to the Molding Department.2 	DSMF ¶¶ 32-33; Pl. Opp. to DSMF ¶¶ 32-33. Mr.
Pirente 	consulted 	with 	Elizabeth 	Sullo 	(the 	Plaintiff’s 	supervisor 	in 	the 	Molding
Department), who emailed Alexis Cashman, an HR manager, stating, “Steve Gaudette
filled out an application for molding a few weeks ago and was sent an offer for Stripette.
1 The Plaintiff points out that this performance evaluation was not conducted by his regular supervisor in
the Molding Department but does not appear to dispute the contents of the evaluation. Pl. Opp. to DSMF
¶¶ 20-22.
2 There appears to be some confusion over how the Plaintiff came to obtain the email offer he showed to
Mr. Pirente, including whether he received any email at all. Plaintiff maintains that he believed he had
been offered a job and took steps consistent with that understanding, including traveling to Sanford to
complete a drug test. PSMF ¶¶ 12-16. The Defendant points out that the Plaintiff failed to produce this
email during discovery and argues that the reason the Plaintiff provided for that failure (that the email was
deleted, along with all other emails from 2020 to 2021, during a Yahoo email update) is lacking, but
nonetheless maintains that this factual dispute is not material. See Def. Resp. to PSMF ¶¶ 12-16; Def. Mot.
at 5. Because a court at summary judgment draws inferences from disputed facts in the light most favorable
to the nonmoving party, I put the Defendant’s insinuations to the side and assume here that the Plaintiff did
in fact receive the email offering him a position in the Stripette department, which he showed to Mr. Pirette
on his phone.
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Can they change the offer to molding?” 	DSMF ¶¶ 35-36; Pl. Opp. to DSMF ¶¶ 35-36.
This request reached two other HR staffers, who determined that the Plaintiff was not on
the list of temporary workers to be converted to regular employees, but decided to “move
forward with the hire” regardless. DSMF ¶¶ 38-39; Pl. Opp. to DSMF ¶¶ 38-39; see also
Ex. 4 to Decl. of Elizabeth Sullo (ECF No. 51-6). They created an offer letter for a position
in the Molding Department on April 6, 2021, which the Plaintiff formally accepted the next
day. DSMF ¶ 40; Pl. Opp. to DSMF ¶¶ 39, 40.
The Defendant maintains that, after the offer letter was sent to the Plaintiff, Plant
Operations Manager Jennifer Hemly “determined that Plaintiff’s performance evaluations
did not meet an acceptable threshold for conversion to a regular employee and therefore
did not approve his conversion to a regular employee.” DSMF ¶ 42. The Plaintiff disputes
this claim, pointing to Ms. Hemly’s deposition testimony that she has no memory of the
Plaintiff or his hiring process. Pl. Opp. to DSMF ¶ 42.
A week or so after the Plaintiff received the formal offer letter, Ms. Cashman told
the Plaintiff that the offer was not an actual job offer, and that Corning would not be hiring
him as a regular employee. DSMF ¶ 43; Pl. Opp. to DSMF ¶ 43. After this conversation,
the Plaintiff continued to work in the Molding Department for several weeks as a temporary
worker 	employed 	by 	Staffmark. 	The 	Defendant 	contends 	that 	Plaintiff 	exhibited
performance issues during this time, which the Plaintiff denies. DSMF ¶¶ 44-45; Pl. Opp.
to DSMF ¶¶ 44-45. The Defendant also points to email correspondence in June and July
2021 	between 	the 	Plaintiff’s 	supervisors 	and 	Staffmark 	discussing 	the 	Plaintiff’s
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performance. DSMF ¶¶ 46-49.3 The Plaintiff maintains that his supervisor never discussed
any performance issues with him. Pl. Opp. to DSMF ¶¶ 44-51.
On July 22, 2021, the Plaintiff met with Ms. Sullo and Mr. Pirente. DSMF ¶ 50; Pl.
Opp. to DSMF ¶ 50. 	The Defendant contends that, at this meeting, Ms. Sullo and Mr.
Pirente discussed the Plaintiff’s performance issues. DSMF ¶¶ 50-51. The Plaintiff denies
that there was any discussion of performance issues at this meeting, instead maintaining
that they discussed that the Plaintiff was “slowing down.” Pl. Opp. to DSMF ¶ 50-51. At
this meeting, the Plaintiff asked about his offer for regular employment, and Ms. Sullo and
Mr. Pirente informed him that Corning was unlikely to extend him an offer for regular
employment. DSMF ¶ 52-53; Pl. Opp. to DSMF ¶¶ 52-53. The Plaintiff also claims that
Ms. Sullo stated that she did not have money in the budget to hire him, although the
Defendant disputes this. PSMF ¶ 38; Def. Resp. to PSMF ¶ 38. The Plaintiff did not return
to work at Corning after this meeting. DSMF ¶ 54; Pl. Opp. to DSMF ¶ 54.
Around this time, the Defendant hired two temporary workers as regular employees,
both of whom were younger than the Plaintiff. DSMF ¶¶ 63-72; Pl. Opp. to DSMF ¶¶ 63-
72. 	The first of these individuals received a 30-day performance evaluation rating of 25
out of 35, a 45-day rating of 24 out of 35, a 60-day rating of 28 out of 35, and a 90-day
rating of 35 out of 35, for a total overall average rating of 28 out of 35. DSMF ¶¶ 64, 65;
Pl. Opp. to DSMF ¶¶ 64, 65. 	The second individual had two periods of temporary
3 The Plaintiff’s response to the Defendant’s Local Rule 56 statements denies the paragraph in which the
Defendant makes these assertions, but it is not clear whether the Plaintiff intended to deny that he had
performance issues or to deny that Ms. Sullo had email correspondence about the Plaintiff’s performance.
See Pl. Opp. to DSMF ¶¶ 46-49.
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employment at Corning before applying for and being hired to a permanent role. DSMF
¶¶ 66-72; Pl. Opp. to DSMF ¶¶ 66-72. 	During his first stint at Corning, this individual
received a 45-day performance evaluation rating of 21 out of 35, and a 90-day rating of 13
out of 35, for a total overall average rating of 17 out of 35. DSMF ¶ 68. He was not hired
as a regular employee at this time. Id. During his second period of temporary employment
at Corning, this individual received a 45-day performance evaluation rating of 14 out of 35,
and a 90-day rating of 35 out of 35, and was converted to regular employment. DSMF ¶¶
71, 72.
DISCUSSION
Summary judgment is appropriate “if 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 material fact is one that has the potential to determine the outcome
of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Oahn Nguyen
Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). To raise a genuine issue
of material fact, the party opposing the summary judgment motion must demonstrate that
the record contains evidence that would permit the finder of fact to resolve the material
issues in its favor. See Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.
1999).
Plaintiff has brought this age discrimination claim under the Maine Human Rights
Act (“MHRA”), and not the federal Age Discrimination in Employment Act (“ADEA”).
See ECF No. 18 ¶¶ 32-40. The MHRA provides:
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It is unlawful employment discrimination, in violation of this Act, except
when based on a bona fide occupational qualification . . . [f]or any employer
to fail or refuse to hire or otherwise discriminate against any applicant for
employment because of race or color, sex, sexual orientation, physical
or mental disability, religion, age, ancestry or national origin . . . or, because
of those reasons, to discharge an employee or discriminate with respect to
hire, 	tenure, 	promotion, 	transfer, 	compensation, 	terms, 	conditions 	or
privileges of employment or any other matter directly or indirectly related to
employment . . .
5 M.R.S. § 4572(1)(A). In cases involving allegations of disparate treatment or intentional
discrimination based on age, “Maine courts apply the MHRA in accordance with federal
anti-discrimination law, including the ADEA.” Boyajian v. Starbucks Corp., 587 F. Supp.
2d 295, 303 n.3 (D. Me. 2008); see also M.H.R.C. v. City of Auburn, 408 A.2d 1253, 1261
(Me. 1979); Forrest v. Brinker Intern. Payroll Corp., 511 F.3d 225, 228 n.1 (1st Cir. 2007);
Tucker v. Lantmannen Unibake USA, Inc., 706 F. Supp. 3d 94, 127 n.114 (D. Me. 2023).
As both parties agree, a claim of intentional employment discrimination is evaluated
under the three-step burden-shifting framework articulated in McDonnell Douglas Corp. v.
Green. 411 U.S. 792, 802 (1973); see also City of Auburn, 408 A.2d at 1262-63. Under
this framework, Plaintiff bears the initial burden to establish his prima facie case.
McDonnell Douglas, 411 U.S. at 802. 	To establish a prima facie case for hiring
discrimination, Plaintiff must show (1) that he is a member of a protected class;4 (2) that
he applied and was qualified for the position in question; (3) that his application was
nonetheless rejected; and (4) that following his rejection, the position remained open and
4 While the protected class under the ADEA is limited to those who are at least 40 years old, that under the
MHRA is not. See M.H.R.C. v. Kennebec Water Power Co., 468 A.2d 307, 309 (Me. 1983).
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the employer continued to seek applicants with his qualifications.5 Boyajian v. Starbucks
Corp., 587 F. Supp. 2d 295, 304 n.4 (D. Me. 2008); see also Goncalves v. Plymouth Cty.
Sheriff’s Dep’t, 659 F.3d 101, 105 (1st Cir. 2011). 	This burden is “quite easy to meet,”
Boyajian, 587 F. Supp. 2d at 304 (quoting Villanueva v. Wellesley Coll., 930 F.2d 124, 127
(1st Cir. 1991)), as the required showing is “modest . . . and a low standard,” Velez v.
Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009) (cleaned up).
As an initial matter, the Defendant contends that Ms. Hemly was not aware of the
Plaintiff’s age when she decided not to hire him and that, as a result, his prima facie case
must fail. 	See Carreras v. Silgan Containers Mfg. P.R., LLC, No. 22-1156, 2024 WL
504045, *2 (1st Cir. 2024) (“[A]s night follows day, an applicant’s actual age could not be
the but-for cause of an employment decision if the decision-maker did not know that the
plaintiff was not the preferred age.”); Murphy v. Mattis, No. 2:14-cv-00400, 2017 WL
1157086, *40 (D. Me. Mar. 27, 2017) (similar). But whether Ms. Hemly was in fact the
person responsible for the decision not to hire the Plaintiff is itself disputed, as discussed
further below. And it is difficult to square Ms. Hemly’s statement that she “did not even
know Plaintiff’s age when he worked for Corning,” with her statement that she “does not
5 The Defendant has argued that Plaintiff must show that he met Corning’s “legitimate job performance
expectations” as an element of the prima facie case. See Joyce v. DeJoy, No. 2:23-cv-30-JAW, 2024 WL
5170358, at *12 (D. Me. Dec. 19, 2024). As an initial matter, Joyce was a wrongful termination case, not
a hiring discrimination case—it would be somewhat strange to require a plaintiff to show that he met an
employer’s expectations for performance in a position to which he had only applied, although the fact that
this case involves an application for conversion from temporary to regular employment may make it similar
to a wrongful termination case in certain respects. But to the extent the evidence that the Defendant has
offered to show that the Plaintiff did not meet Corning’s performance expectations also substantiates the
Defendant’s proffered nondiscriminatory justification for not hiring the Plaintiff, that evidence is properly
considered at the second step of the McDonnell Douglas inquiry.
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recall the specific details of Plaintiff’s tenure with Corning or his application for a position
in the Molding Department.” 	Decl. of Jennifer Hemly ¶¶ 6, 8 (ECF No. 51-7). 	I am
therefore not inclined to draw the conclusion that the Defendant invites—that Ms. Hemly
decided not to hire Plaintiff, and did not know his age when she did so—at this stage.
The record in this case shows that Plaintiff was in his 60s when he applied for
conversion to regular employment. 	As a temporary worker who had worked at Corning
for more than 90 days, the Plaintiff was qualified to make that application. 	Because it
appears that Corning did not have a particular threshold that it required applicant
performance evaluations to clear in order for an applicant to be considered for conversion
to regular employment, the Plaintiff’s unimpressive performance evaluations were not
automatically disqualifying. 	See Def. Resp. to PSMF ¶ 72; Conboy Dep. Tr. 12:10-22.
And when the Plaintiff informed his supervisor and HR staff that he had received an offer
for conversion, but to the wrong department, they responded by taking steps to facilitate
his hiring. See DSMF ¶¶ 35-41. These facts, read in the light most favorable to the Plaintiff,
could support an inference that the Plaintiff was qualified for the permanent position to
which he applied. 	Yet, the Plaintiff was not hired as a regular employee. 	Finally, the
Plaintiff has identified two younger temporary employees whose applications for the same
position were successful. PSMF ¶¶ 40-52; Def. Resp. to PSMF ¶¶ 40-52. This shows that
there was “a continuing need” to fill the role, and that Corning turned to younger applicants
to meet that need.6 Velez, 585 F.3d at 447.
6 The Defendant argues that to meet this element of the prima facie case, Plaintiff must also show that these
younger employees were “similarly situated” to him. See Goncalves, 659 F.3d at 106-07. 	I address the
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This “successful prima facie showing creates an inference of discrimination” under
First Circuit precedent. See Boyajian, 587 F. Supp. 2d at 304. The burden next shifts back
to the Defendant to provide “a legitimate, nondiscriminatory reason” for not hiring the
Plaintiff as a regular employee. 	McDonnell Douglas, 411 U.S. at 802. 	This is “only a
burden of production, not a burden of persuasion,” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 823 (1st Cir. 1991), which the Defendant has satisfied by pointing to the Plaintiff’s
lackluster performance evaluations as the reason he was denied conversion to regular
employment. See Def. Mot. at 17; DSMF ¶ 42.
Once the employer proffers a reason that is “facially adequate to constitute a
legitimate, nondiscriminatory justification,” the “artificial striations of the burden-shifting
framework” are cast aside, Mesnick, 950 F.2d at 825, and “the inference of discrimination
vanishes,” Boyajian, 587 F. Supp. 2d at 304. At this point, the question is “whether, on all
the evidence of record, a rational factfinder could conclude that age was a determining
factor in the employer’s decision.” 	Mesnick, 950 F.2d at 825. 	The First Circuit has
cautioned that “a plaintiff should not be required to produce ‘smoking-gun’ evidence
before prevailing in a discrimination suit,” and that a plaintiff’s burden “can be carried
without direct proof of discrimination.” Id. at 824; see also Hebert v. Mohawk Rubber Co.,
872 F.2d 1104, 1115-16 (1st Cir. 1989) (“[C]ircumstantial evidence is to be expected in
discrimination cases given the complexity of the issues and the difficulty, in this rights
sufficiency of these comparators in greater detail in connection with the third step of the McDonnell
Douglas inquiry. See infra pp. 14-15.
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conscious era, of producing direct evidence of discrimination.”). 	“There are many veins
of circumstantial evidence that may be mined by a plaintiff”—including “the deployment
of 	younger 	replacements,” 	Mesnick, 	950 	F.2d 	at 	824; 	evidence 	of 	an 	employer’s
“[d]eviation from established policy or practice,” Boyajian, 587 F. Supp. 2d at 306; and
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons such that a factfinder could infer that the employer
did not act for the asserted non-discriminatory reasons,” id. at 304 (citing Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000)); see also Jospeh v.
Lincare, Inc., 939 F.3d 147, 160 (1st Cir. 2021) (similar).
The evidence that the Plaintiff musters to carry this burden is thin, but not so thin as
to require granting the Defendant’s request for summary judgment. 	The first bucket of
evidence that the Plaintiff points to pertains to Jennifer Hemly’s role in the hiring process.
The Plaintiff disputes that (as Defendant claims) Ms. Hemly reviewed his performance
evaluations and then decided not to go through with his hiring. 	Pl. Resp. at 17-18 (ECF
No. 54). The only evidentiary basis for the Defendant’s version of events is Ms. Hemly’s
declaration, which states that she “would have been the person responsible for reviewing
and approving” a temporary worker’s offer for regular employment and that based on
Plaintiff’s performance evaluations, “which demonstrated poor performance,” she “would
not have approved extending Plaintiff an offer for regular employment.” Hemly Decl. ¶¶ 6-
7 (ECF No. 51-7). 	In this declaration and during her deposition, however, Ms. Hemly
stated that she did not recall the Plaintiff’s application or hiring process. Hemly Decl. ¶ 7;
Hemly Dep. Tr. 6:17-10:22 (ECF No. 55, Ex. 7).
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Ms. Hemly’s statements may suffice to show that it would have been consistent with
Corning’s usual approach to reviewing a temporary worker’s application for regular
employment for her to make a recommendation based on that worker’s performance
evaluations. 	See Haag v. United States, 485 F.3d 1, 3 (1st Cir. 2007) (an affidavit
describing an office’s usual practice was “enough to infer what actually happened” where
the affiant did not have personal knowledge). But there is reason to doubt that Corning’s
usual approach was followed with respect to the Plaintiff—starting with the irregularities
surrounding how the Plaintiff came to obtain an offer letter from the Defendant. 	Ms.
Hemly’s declaration states that “it was [her] practice to review the temporary workers’
performance evaluations” “[b]efore making such offers” of regular employment to
temporary workers. 	Hemly Decl. ¶ 5. 	But here, if Ms. Hemly did review the Plaintiff’s
evaluations, she would have done so after he had already received an offer letter on April
6, 2021. See DSMF ¶¶ 40-42 (Defendant “created an offer letter and provided it to Plaintiff,”
and “[t]hereafter, Jennifer Hemly . . . determined that Plaintiff’s performance evaluations
did not meet an acceptable threshold for conversion to a regular employee”). This would
be inconsistent with the normal process Ms. Hemly describes, undermining the inference
the Defendant hopes to draw from Ms. Hemly’s declaration. 	Because of the central
importance of “the perception of the decisionmaker” to the inquiry at hand, Mesnick, 950
F.2d at 824, the weakness of the Defendant’s evidence as to who made the decision not to
hire Plaintiff and why takes greater significance. 	See also Jospeh, 989 F.3d at 160;
Boyajian, 587 F. Supp. 2d at 306 (“weaknesses . . . in the employer’s proffered legitimate
reasons” can be circumstantial evidence of discrimination).
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The Plaintiff also contends that the Defendant has provided false and changing
reasons for not hiring him, specifically: (1) that the original offer was not an offer, (2) that
there was no money in the budget, and (3) the Plaintiff’s performance issues. See Román
v. Hyannis Air Service, Inc., 156 F.4th 18, 28 (1st Cir. 2025) (“[S]ubsequent explanations
that are inconsistent with or contradict the formally stated justification support an inference
that the employer’s proffered reason was pretextual.”); Jospeh, 989 F.3d at 160 (“An
employer’s changing explanations for an adverse employment action can sometimes
provide evidence of pretext.”). 	The Defendant denies that its reasons have changed,
pointing out that its contention that the offer letter was extended to the Plaintiff erroneously
and its explanation that the Plaintiff’s performance history precluded his hiring are
“entirely consistent with one another.” Def. Reply at 4 (ECF No. 61). As to the Plaintiff’s
claim that his supervisor told him there was no money in the budget to hire him, the
Defendant argues that this statement should be disregarded because the supervisor alleged
to have made it was not involved in the hiring decision.7 “‘[S]tray workplace remarks,’ as
well as statements made by nondecisionmakers or by decisionmakers not involved in the
decision process, normally are insufficient, standing alone, to establish either pretext or the
7 The Defendant also characterizes this statement as “uncorroborated hearsay testimony.” Def. Reply at 4.
To the extent that the Defendant argues that this statement is inadmissible hearsay (and, as a result, barred
from consideration at summary judgment), I disagree, as the statement appears to have been offered for the
fact that it was made, and not to prove the truth of what it asserts. See Fed. R. Evid. 801(c)(2). The lack
of corroboration would certainly bear upon the weight a trier of fact might give this evidence, but not upon
its admissibility.
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requisite discriminatory animus.”8 Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2005).
But Ms. Sullo’s alleged statement is a supervisor’s characterization, to an employee that
reported to her, of why that employee was not hired—it seems to me that a reasonable
factfinder could conclude that this statement is therefore something more than a “stray
workplace remark.” Id. Moreover, the statement is not considered “standing alone,” id.,
but in conjunction with evidence that could point toward it being dishonest—namely, that
the Defendant subsequently hired two younger workers in the same position to which the
Plaintiff had applied. This inconsistency, if credited by the trier of fact, would “go to the
core question of whether [the employer’s] purported reason” for not hiring the Plaintiff
“was a pretext for age discrimination.” Warner v. Dejoy, 153 F.4th 109, 116 (1st Cir. 2025).
And even though Ms. Sullo testified in her deposition that she was not involved in
Plaintiff’s application or hiring process, there is evidence in the record that could dispute
this. 	Ms. Sullo was involved in getting Plaintiff’s offer transferred to the Molding
Department, 	see 	DSMF 	¶¶ 35-36, 	and 	Ms. 	Hemly 	testified 	in 	her 	deposition 	that
supervisors (such as Ms. Sullo) would typically “provide a recommendation on hiring the
employee based on the evaluation.” Hemly Dep. Tr., 7:21-25.
The Plaintiff also points to “the deployment of younger replacements,” Mesnick,
950 F.2d at 825; specifically, two younger temporary workers who were hired as regular
employees around this time. 	See PSMF ¶¶ 40-52. 	The Defendant contends that any
8 For this reason, I agree with the Defendant that the speculative, hearsay statement of a different, non-
supervisory employee that the Plaintiff was not hired because he was “too old,” PSMF ¶ 60, does not factor
into this analysis. See also DSMF ¶ 57; Pl. Opp. to DSMF ¶ 57.
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comparators 	must 	also 	be 	shown 	to 	have 	“similar 	qualifications” 	to 	the 	Plaintiff.
Goncalves, 659 F.3d at 105; Cocuzzo v. Trader Joe’s East, Inc., 121 F.4th 924, 933 (1st
Cir. 2024). 	The Defendant argues that the two individuals who were hired instead had
“significantly higher” performance evaluations than the Plaintiff did, Def. Mot. at 14, and
that as a result, they are not “similarly situated,” Goncalves, 659 F.3d at 106. Resolving
uncertainties in the Plaintiff’s favor, as I must, I disagree. The Plaintiff and both proposed
comparators were temporary workers, qualified to apply for conversion to regular
employment following 90 days on the job. The Plaintiff’s evaluation scores ranged from
13 to 21, and the proposed comparators’ evaluations ranged from 24 to 35 and 14 to 35,
respectively. 	In addition, the Plaintiff had not been subject to disciplinary action or
informed of any negative feedback prior to applying for regular employment. See PSMF
¶¶ 6-7.9 While it is true that the Plaintiff’s score range does not overlap with that of the
first comparator, there is significant overlap with the second. The Defendant argues that,
unlike the Plaintiff’s scores, this individual’s scores increased over time—but does not
point to anything in the record to show that this distinction is one that actually mattered in
Corning’s hiring process. 	See Def. Mot. at 12-15. 	Given the Defendant’s limited
explanation of the role that the evaluations played in the decision-making process beyond
the fact that they were “considered,” see DSMF ¶ 9, I cannot say that these evaluations are
9 The Defendant disputes this, but in response points to evidence in the record indicating that there were
complaints about the Plaintiff—not that the Plaintiff had been made aware of those complaints or subject
to disciplinary action before the July 2021 meeting. Def. Resp. to PSMF ¶¶ 6-7; DSMF ¶¶ 46-51. Moreover,
the complaints and discipline that the Defendant points to in response are from June and July 2021—several
weeks after the Plaintiff applied for conversion to regular employment and received his offer letter. See
DSMF ¶¶ 46-51.
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so vastly different that a reasonable factfinder could not conclude that the Plaintiff and
these other workers were similarly situated.
In theory, then, a reasonable factfinder could determine (1) that, despite Corning’s
claim to the contrary, it is unlikely that Ms. Hemly reviewed Plaintiff’s evaluations and
decided to disapprove his hiring on those grounds; (2) that Plaintiff’s supervisor told him
that he was not hired because there was insufficient money in the budget; (3) that this was
false, because Defendant hired two temporary workers as regular employees; and (4) that
these later hires were younger than the Plaintiff. 	Under First Circuit precedent, this
“aggregate package of proof”—though indirect and circumstantial—when viewed in the
light most favorable to the Plaintiff, could suffice to carry the Plaintiff’s burden. Mesnick,
950 F.2d at 824. 	This may not be a particularly compelling package of proof, but its
strength would largely depend upon the credibility of the parties’ witnesses. 	And I am
mindful that the First Circuit calls for “caution and restraint” at the summary judgment
stage where a dispute turns on credibility, pretext, motive and intent. Taite v. Bridgewater
State Univ., 999 F.3d 86, 93 (1st Cir. 2021). 	It is not my place to make that assessment
here.
CONCLUSION
For these reasons, Defendant’s Motion for Summary Judgment (ECF No. 51) is
DENIED.
SO ORDERED. 	Dated this 4th day of February, 2026.
/s/ Lance E. Walker
Chief U.S. District Judge
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