Tomasso v. Boeing Co.

• Decision Date: 19 April 2006
• Docket Number: No. 04-4657.,04-4657.
• Citation: 445 F.3d 702
• Parties: Joseph J. TOMASSO, Appellant v. The BOEING COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

445 F.3d 702

Joseph J. TOMASSO, Appellant v. The BOEING COMPANY.

No. 04-4657.

United States Court of Appeals, Third Circuit.

Argued January 18, 2006.

Filed April 19, 2006.

Mark S. Scheffer (Argued), Pomerantz & Scheffer, Philadelphia, PA, for Appellant.

M. Frances Ryan (Argued), Dechert, Philadelphia, PA, for Appellee.

Before: ROTH, FUENTES, and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Joseph J. Tomasso appeals the District Court's grant of summary judgment against him in an age discrimination suit against the Boeing Company, which laid him off during a reduction in force ("RIF"). Tomasso asserted claims under the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act ("PHRA"), and the Employee Retirement Income Security Act ("ERISA"). The ADEA and PHRA claims are governed by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).¹ Although Boeing conceded that Tomasso made out a prima facie case of age discrimination, the District Court found that Tomasso failed, in the pretext phase, to produce sufficient evidence to discredit Boeing's rationales for his layoff.

Before this Court, as before the District Court, Boeing offered several reasons for Tomasso's layoff. Some of these rationales, if believed, could fully explain the decision; other explanations appear partial and secondary. We conclude that Tomasso adduced evidence sufficient to create a genuine issue of material fact as to whether Boeing's proffered reasons are pretextual. First, under our decision in Fuentes v. Perskie, 32 F.3d 759 (3d Cir.1994), Tomasso has shown sufficient implausibilities and inconsistencies in Boeing's primary rationales to avoid summary judgment. Second, a rational factfinder could dismiss the secondary reasons as pretextual, not because they played no role in Tomasso's layoff but because they cannot explain the layoff sufficiently. We will therefore reverse the District Court's grant of summary judgment against Tomasso on his ADEA and PHRA claims.²

I. Facts

Tomasso began working for Boeing in 1962, when he was 18. In 1979, he entered the Supplier Quality Department, which oversees the quality of aircraft component parts to be delivered to Boeing by its subcontractors. Eventually Tomasso was promoted to Procurement Quality Specialist 4, placing him at the second highest of four procurement quality specialist positions. Procurement quality specialists would visit the sites where component parts were manufactured, verify the quality of the parts to be delivered, and monitor the subcontractors' operations.

In October of 2001, after having worked at Boeing for nearly 40 years, Tomasso received a 60-day notice of possible layoff. Afterwards, although he had been a salaried employee, he was offered only an hourly position in a different department. Tomasso refused to accept this major demotion, viewing it as "a slap in the face." He thought that accepting the new position would be tantamount to "going back 40 years and starting all over again." Tomasso was thus laid off in January of 2002 at age 59, following 22 years in the Supplier Quality Department, and a total of 39 years of service to Boeing. He was able to retire and collect a pension.

Tomasso's layoff resulted from Boeing's decision in 2001 to reduce operating costs and overhead by twenty percent at the site where Tomasso worked. As part of the plan, Boeing undertook a RIF in the Supplier Quality Department. Shortly before the RIF, Boeing had done away with a retention totem rating system that had been used to identify which employees would be laid off in the event of a RIF. Under the retention totem rating system, any employee, such as Tomasso, who had worked at Boeing for 30 years or more was in the group least likely to be laid off. The retention totem rating system had been in place for at least 10 years prior to 2001, the year the RIF began.

Rather than using the retention totem rating system, Boeing decided which employees to lay off by having managers rate them on evaluation forms. The evaluation form for the Supplier Quality Department required that employees be assigned a score on a scale from one to five in nine categories: organizational skills, problem solving, quality of work, quantity of work, technical competence, leadership, attitude, communications, and teamwork. A score of one meant "[n]eeds [i]mprovement," three meant "[a]cceptable," and five meant "[s]trong." The employees received an overall score equal to the sum of the scores in each of the nine categories.

Prior to the evaluation, employees were placed into groups with other employees performing the same or similar work. The employees in Tomasso's group were supervised by several different managers, and the managers rated their own employees. Tomasso was evaluated by his manager, Joseph Wood.

Tomasso received a score of 21, ranking last out of 43 employees in the Supplier Quality Department. He received the following scores in the individual categories:

                  Organizational Skills:     2
                  Problem Solving:           3
                  Quality of Work:           2
                  Quantity of Work:          2
                  Technical Competence:      5
                  Leadership:                2
                  Attitude:                  2
                  Communications:            1
                  Teamwork:                  2
                

Despite Tomasso's low overall score, Wood did not consider Tomasso a bad employee. In fact, Wood considered all of the employees who were evaluated to be "good performing employee[s]."

The employees in a group were ranked against each other based on their overall scores. Employees were then selected for layoff, beginning with the lowest-ranked member in a group and moving up the list until the desired number of employees had been identified.

In the Supplier Quality Department, the seven employees with the lowest scores were selected for layoff. All of these employees were over the age of 40. The oldest employee in the Supplier Quality Department (age 70) was rated second to last. All employees under the age of forty were retained, and no employee under the age of forty was rated lower than fourteenth. However, only five of 43 employees in the Supplier Quality Department are under 40, and five of the 36 retained employees were Tomasso's age or older at the time of the evaluation (ages 58, 61, 61, 63, and 68).

Tomasso brought suit in the District Court for the Eastern District of Pennsylvania, alleging that Boeing laid him off due to his age. In an amended complaint, Tomasso claimed violations of the ADEA, PHRA, and ERISA. Boeing moved for summary judgment on all counts. Because the McDonnell Douglas burden-shifting framework governs both the ADEA claim and the PHRA claim, and because Boeing conceded that Tomasso had made out a prima facie case of age discrimination, the District Court's discussion focused on the pretext phase. The District Court found that Tomasso failed to demonstrate that Boeing's proffered rationales for his layoff were pretextual, and granted summary judgment against Tomasso on all of his claims. Tomasso filed a timely notice of appeal.³

II. Analysis

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), guides us as to the burdens that an employee and an employer bear when the employer moves for summary judgment on a McDonnell Douglas claim. Because Tomasso, as Boeing concedes, has made out a prima facie case, the burden of production shifts to Boeing, which must articulate a legitimate nondiscriminatory rationale for his layoff. Id. at 763.⁴ This burden is "relatively light," and the employer need only "introduc[e] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Id.

Once Boeing articulates a nondiscriminatory reason, Tomasso must respond by citing evidence that the rationale is pretextual. Id. As we have noted, low evaluation scores may be a pretext for discrimination, especially where, as here, an employer uses subjective criteria such as "attitude" and "teamwork" to rate its employees. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 320 (3d Cir.2000) ("`Subjective evaluations are more susceptible of abuse and more likely to mask pretext.'") (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990)); see also Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir.2003) ("Where termination decisions rely on subjective evaluations, careful analysis of possible impermissible motivations is warranted . . . .").

In order to create a genuine issue of material fact as to whether the proffered reasons are pretextual, Tomasso must "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764. Tomasso must do more than show that Boeing was "wrong or mistaken" in deciding to lay him off. Id. at 765. He must "present evidence contradicting the core facts put forward by the employer as the legitimate reason for its decision." Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir.2005) (emphasis added). In other words, Tomasso must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' and hence infer `that the employer did not act for [the asserted] nondiscriminatory reasons.'" Fuentes, 32 F.3d at 765 (alteration in original) (footnote omitted) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531, 533 (3d Cir.1992); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir.1993); Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir.1990)).

We agree with the dissent that a decision to lay off an...