2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-2006

Tomasso v. Boeing Co

Precedential or Non-Precedential: Precedential

Docket No. 04-4657

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-4657

 

JOSEPH J. TOMASSO,

Appellant

v.

THE BOEING COMPANY

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 03-cv-04220)

District Judge: Honorable Edmund V. Ludwig

 

Argued January 18, 2006

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

(Filed April 19, 2006 )

 
2

MARK S. SCHEFFER (ARGUED)

Pomerantz & Scheffer

21 South 12th Street

Room 700

Philadelphia, PA 19107

Attorney for Appellant

M. FRANCES RYAN (ARGUED)

Dechert

1717 Arch Street

4000 Bell Atlantic Tower

Philadelphia, PA 19103

Attorney for Appellee

 

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
See Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 2005). 1

 Tomasso did not respond to Boeing’s motion for summary 2

judgment on his ERISA claim, and he does not press this claim on

appeal. We therefore affirm the District Court’s grant of summary

judgment against Tomasso on the ERISA claim.

3

Corp. v. Green, 411 U.S. 792 (1973). Although Boeing 1

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
4

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
5

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
6

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 employeesin 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
The District Court had jurisdiction over Tomasso’s federal 3

and state law claims pursuant to 28 U.S.C. §§ 1361 and 1367, and

we have appellate jurisdiction under 28 U.S.C. § 1291. We review

the District Court’s grant of summary judgment against Tomasso

de novo, and we consider the evidence in the light most favorable

to him, as he is the nonmoving party. See S & H Hardware &

Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 554 (3d Cir.

2005).

Ordinarily, to make out a prima facie case under 4

McDonnell Douglas, “the plaintiff must show (1) that he was at

least forty years old, (2) that he was fired, (3) that he was qualified

for the job from which he was fired, and (4) that he ‘was replaced

by a sufficiently younger person to create an inference of age

discrimination.’” Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir.

2002) (citation omitted). However, where an employee is

terminated during a RIF, the fourth element of the prima facie case

becomes whether the employer retained employees who do not

belong to the protected class. Showalter v. University of Pittsburgh

Medical Center, 190 F.3d 231, 234-235 (3d Cir. 1999).

7

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. This burden is “relatively 4
8

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
9

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] non-discriminatory 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

employee in a RIF differs from a decision to fire an employee

during ordinary circumstances. In either situation, however, we

apply the McDonnell Douglas framework. In ordinary times,

employees are fired for poor performance; in a RIF, even

qualified employees are laid off in order to reduce personnel. In

fact, Wood testified that the individuals selected for layoff were

not bad employees. But even in a genuine RIF (one that is

motivated on a programmatic level by economic concerns),

individuals may be selected for layoff on the basis of age. For

this reason, even in a RIF, we use the McDonnell Douglas

framework to expose such discrimination. The employer must

have age-neutral reasons for deciding to lay off certain

employees, and the employee can challenge these reasons as

pretextual. See, e.g., Showalter v. Univ. of Pittsburgh Med. Ctr.,

190 F.3d 231, 236-38 (3d Cir. 1999) (considering whether the

employer’s rationales for terminating an employee during a RIF

were pretextual).

As we stated in Fuentes, the employee need not always

offer evidence sufficient to discredit all of the rationales

advanced by the employer. “If the defendant proffers a bagful

of legitimate reasons, and the plaintiff manages to cast
10

substantial doubt on a fair number of them, the plaintiff may not

need to discredit the remainder.” 32 F.3d at 764 n.7; see also

Kautz, 412 F.3d at 467; Abramson v. William Paterson Coll. of

New Jersey, 260 F.3d 265, 283 (3d Cir. 2001). In Fuentes, we

explained that the rejection of some explanations may so

undermine the employer’s credibility as to enable a rational

factfinder to disbelieve the remaining rationales, even where the

employee fails to produce evidence particular to those

rationales. 32 F.3d at 764 n.7.

Boeing offers several age-neutral explanations for

Tomasso’s low score and the consequent decision to lay him off.

We will consider these rationales in turn, applying the standard

described above.

A. Lack of Interest in Process Validation Assessments

Boeing’s foremost explanation of Tomasso’s layoff is

that he seemed uninterested in Process Validation Assessments

(“PVAs”), a type of inspection that Boeing used to monitor its

subcontractors. Under the traditional system of standard source

inspections, a Boeing employee would simply inspect the

products ready for delivery to Boeing. In contrast, a PVA does

not involve actual product inspections but instead predicts a

supplier’s ability to produce satisfactory products based on a

review of the supplier’s production capacity. The Supplier

Quality Department was increasing its use of PVAs, and Wood

characterized this shift as “the primary focus and goal of our

organization.”

Wood testified in his deposition that he gave Tomasso

low scores in at least four categories because he thought that

Tomasso lacked interest in performing PVAs. According to

Wood, Tomasso said that “he wasn’t really an advocate to the

PVA process and was not comfortable working with it.” In his
Performance development partnership plans appear to be 5

forms that employees first fill out themselves and then discuss and

revise with their managers. 

11

affidavit, however, Tomasso denies making such a statement:

“At no time did I express to Mr. Wood that I was not interested

in PVA, and I never told him that I would not participate in

PVA or the transfer to the PVA method, or that I was not willing

to accept new changes.” 

Wood further stated that Tomasso failed to attend a PVA

planning session. Tomasso, however, claims that he did not

attend the session because it was not mandatory, and because he

was having health problems that would have made it difficult to

travel to the session, which was held in New Orleans.

Wood also testified that Tomasso did not initially list

developing PVA skills as a goal in a performance development

partnership plan. Additionally, Wood stated that procurement 5

quality specialists were expected to identify, out of the suppliers

with which they worked, those that were ready for the transition

from standard source inspections to PVAs, even if management

had not already designated the suppliers as candidates for PVAs.

According to Wood, Tomasso did not engage in “transition PVA

activities” for suppliers that management had not already

designated.

Tomasso’s affidavit paints a very different picture.

Tomasso states that he was one of only three employees selected

to participate in PVA activities for a large supplier located in

Middle River, Maryland. Tomasso worked on this PVA in

2001, the year in which Boeing laid him off. Wood

characterizes the Middle River project as a PVA training, and
12

claims that Tomasso did not participate as avidly as other

employees. However, Wood conceded that the Middle River

team did a good job and that as far as he knew, Tomasso was an

integral part of the team.

Tomasso also claims that during reviews in August and

December 2001, Wood did not state that Tomasso’s

performance, including his work on PVAs, was deficient in any

respect. In fact, Wood wrote on Tomasso’s evaluation for

January through December 2001: “Joe—goals and objectives

achieved to acceptable levels for this year. Initial PVA process

started with supply base.” Wood also marked on the evaluation

that Tomasso had met expectations relating to planning PVA

audits on his selected suppliers.

Finally, Tomasso states that he began to transition his

primary supplier to PVAs, and completed the transition in

December of 2001 (after he was selected for layoff). This

supplier accounted for a full 75 percent of Tomasso’s workload.

In short, Tomasso and Wood tell radically different

stories about Tomasso’s interest in PVAs. A factfinder who

credited Tomasso’s testimony could conclude that Wood gave

him acceptable evaluations for his PVA work and never told

him that he needed to improve or increase his PVA work, that

Tomasso began to transition his primary supplier to PVAs, and

that he was selected to participate in an important PVA project

soon before he was laid off. The factfinder could further

conclude that Tomasso never expressed disinterest in PVAs, and

that he missed a PVA transition meeting solely for health

reasons.

Since Tomasso’s evidence relates directly to his interest

in and aptitude for PVAs, it involves “core facts” relevant to

Boeing’s explanation for Tomasso’s dismissal. See Kautz, 412
13

F.3d at 467. Tomasso’s evidence, if believed, does not merely

suggest that the low score assigned by Wood was “wrong or

mistaken,” Fuentes, 32 F.3d at 765, or that Wood innocently

misperceived Tomasso’s interest in PVAs. Rather, one who

believed Tomasso’s affidavit could find “such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions” in Boeing’s explanation as to deem it

“‘unworthy of credence.’” Id. at 765 (citation omitted). To be

sure, Tomasso discredits Boeing’s rationale in part by pointing

to external evidence, such as earlier evaluations and his

participation in the Middle River Project. But such evidence can

be used to show pretext. See Sheridan v. E.I. DuPont de

Nemours and Co., 100 F.3d 1061, 1073-74 (3d Cir. 1996) (en

banc) (stating that an employee could show pretext in part by

adducing “affirmative evidence of her own accomplishments,”

including awards, a promotion, and a salary increase). In sum,

Tomasso’s alleged lack of interest in PVAs does not provide a

sufficient basis for summary judgment. 

B. Refusal To Share Technical Knowledge

Wood also stated that Tomasso received a low score on

his evaluation because he was unwilling to share his technical

knowledge with other Boeing employees. Wood testified: “I

can almost quote [Tomasso] — ‘I want to be left alone to do

and handle my part of the supply base. I’m not interested in

training people or providing working relationships with some

of my other peers in those areas.’” Tomasso, however, denies

that such an exchange occurred: “I never told Mr. Wood that I

wanted to be alone or left alone, and I never told Mr. Wood

that I was not interested in training people or being involved

in working relationships with my peers.”

Tomasso’s affidavit flatly contradicts Wood’s
Wood stated that he informed Tomasso of the problem and 6

that Tomasso corrected it at some point. Tomasso, however,

claims that Wood never mentioned any problems with his supplier

folders. 

14

deposition on this point. Tomasso denies having made the

very statement that apparently convinced Wood that he was

unwilling to share his technical knowledge. Thus, our

decision in Fuentes precludes summary judgment on this

basis. 

C. Boeing’s Remaining Rationales

Boeing offers additional rationales, but they do not

appear sufficient to explain Tomasso’s layoff. Even if a rational

factfinder would have to conclude that these rationales played

some role in Tomasso’s layoff, the factfinder would not have to

conclude that they provide a sufficient explanation. See White

v. Columbus Met. Hous. Auth., 429 F.3d 232, 245 (6th Cir.

2005) (stating that a plaintiff may show pretext “by showing that

the proffered reason was insufficient to warrant the challenged

conduct.”); Holmes v. Potter, 384 F.3d 356, 361 (7th Cir. 2004)

([P]retext . . . may be proved by showing . . . that the stated

reason is insufficient to warrant the adverse action.”) (citation

omitted). 

As Boeing appears to concede, two of the remaining

rationales may explain two of Tomasso’s low scores, but not the

other seven. First, Wood testified in his deposition that

Tomasso received a score of two for “organizational skills”

because Tomasso did not maintain complete folders on his

suppliers. Second, Wood stated that Tomasso received a score 6

of one for “communications” in part because he was difficult to
Tomasso represents that he missed meetings because he 7

was working onsite and was never told that he should attend more

meetings. He also states that he participated in every meeting that

he was told was mandatory.

15

reach while working onsite at his primary supplier and because

of poor attendance at weekly meetings.7

Even if we assume that these rationales adequately

explain Tomasso’s low scores for “organizational skills” and

“communications,” a rational factfinder could conclude that they

are insufficient to explain Tomasso’s low overall score.

Although Tomasso received a perfect score of five in “technical

competence,” he received a score of two in “quality of work,”

“quantity of work,” “leadership,” and “attitude.” These low

scores remain unexplained. If Tomasso had received higher

scores in these or other areas, he would have been ranked high

enough to avoid being laid off. Because Tomasso need not

demonstrate that Boeing’s entire “bagful” of reasons is

pretextual, Fuentes, 32 F.3d at 764 n.7, especially where a

rational factfinder could conclude that the reasons in question

are insufficient, Wood’s concerns about Tomasso’s supplier

folders and meeting attendance do not provide an adequate basis

for a grant of summary judgment. 

Wood also stated in his deposition that Tomasso had

become less involved with suppliers who provided dynamic

components to Boeing, even though Tomasso’s greatest

expertise lay in this area. However, Wood raised this issue in

response to a deposition question about whether Tomasso’s high

level of technical competence might outweigh his alleged

deficiencies in other areas. Thus, Wood did not appear to cite
Tomasso also appears to contend that the evaluation 8

process and the RIF were part of a broad plan to lay off older

employees. We find no evidence to support this argument. To the

extent that Tomasso bases his argument solely on the abolition of

the retention totem rating system, which gave preference to

employees with greater seniority, his argument is at odds with

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Hazen

Paper, the Supreme Court stated, “[b]ecause age and years of

service are analytically distinct, an employer can take account of

one while ignoring the other, and thus it is incorrect to say that a

decision based on years of service is necessarily ‘age based.’” Id.

at 611. Under this principle, Boeing’s decision to reduce

protection against layoff for employees with greater seniority

cannot, without more, be equated with an attempt to lay off older

employees.

We comment briefly on the dissent, which contends that 9

Tomasso failed to call Boeing’s proffered rationales into doubt.

Claiming merely to analyze Tomasso’s layoff within the context of

the RIF, the dissent subverts, sub silentio, the clear mandate of

McDonnell Douglas and Fuentes. As discussed above, see supra

p. 11, we agree with the dissent that the RIF provides context

16

Tomasso’s decreased involvement in his area of expertise as an

independent reason for his low score. A rational factfinder

could conclude that this reason did not sufficiently explain

Tomasso’s layoff.8

III. Conclusion

Tomasso has cast sufficient doubt on Boeing’s primary

explanations for his layoff under Fuentes. Furthermore, a 9
important to the layoff. Indeed, our analysis incorporates the RIF.

In most cases, we inquire whether the proffered rationales explain

why the employer views the employee as deficient, and hence

subject to termination in ordinary times. Here, however, we asked

whether Boeing’s asserted rationales adequately account for the

view that Tomasso was, in the words of the dissent “the worst of

the best, i.e., an adequate or even high-performing employee who

is under-performing relative to his peers.” Dis. Op. at 1-2.

Therefore, our disagreement with the dissent has nothing to

do with an abstract debate about the role of context and everything

to do with the facts of this case. The dissent first discusses

Tomasso’s failure to attend meetings, yet it fails to acknowledge

that this rationale can explain only one of nine scores. Dis. Op at

3. Surely, Boeing is not entitled to summary judgment under

McDonnell Douglas and Fuentes on the basis of an obviously

insufficient justification for Tomasso’s layoff. 

Second, the dissent states, “Wood’s failure to state that

Tomasso’s performance was deficient is insufficient to defeat

summary judgment.” Dis. Op. at 3. This contention is true, but

irrelevant. We do not base our decision on Wood’s failure to

characterize Tomasso’s performance as deficient. Under

McDonnell Douglas, it is Tomasso’s refutation of Boeing’s

proffered rationales that defeats summary judgment.

Third, the dissent asserts that “Tomasso does not point to

any evidence that contradicts Wood’s perception that Tomasso’s

attitude and teamwork lagged behind his peers.” Dis. Op. at 3-4.

This statement is simply incorrect. As discussed above, Wood

claimed that Tomasso stated that he was uninterested in working

with others, but Tomasso denies that he made such a statement. 

17
See supra p. 13. Moreover, Wood stated that his “dominant

reason” for giving Tomasso low scores in attitude and teamwork

was his perception that Tomasso was uninterested in PVAs. As we

discussed at length, Tomasso cited extensive evidence to refute the

claim that he was uninterested in PVAs. See supra pp. 11-13.

Based on a close analysis of the facts in this case, we fail to

see how we could affirm the grant of summary judgment while

remaining faithful to McDonnell Douglas and Fuentes. We are

skeptical that under the dissent’s view, an employee laid off during

a genuine RIF could ever survive summary judgment on a

McDonnell Douglas claim. As we mentioned earlier, even in a RIF

motivated by economic necessity, individual employees may be

terminated on the basis of age, and we use the McDonell Douglas

framework to lay such discrimination bare. See supra p. 9. 

18

rational factfinder could conclude that the remaining reasons do

not adequately explain the decision to terminate him. Therefore,

Tomasso has created a genuine issue of material fact as to

whether Boeing laid him off due to his age. We will therefore

reverse the order of the District Court granting summary

judgment on Tomasso’s ADEA and PHRA claims, and remand

for further proceedings. As noted above, see supra note 2, we

will affirm the grant of summary judgment on the ERISA claim.
 I concur with footnote two of the majority’s opinion, 10

which affirms the grant of summary judgment against Tomasso on

the ERISA claim.

19

Tomasso v. Boeing Co.

No. 04-4657

 

ROTH, Circuit Judge, concurring in part and dissenting in

part:

Although the majority correctly recognizes that a decision

to terminate an employee as part of a RIF differs from a decision

to fire an employee for other reasons, it fails to apply this

distinction in any meaningful way to the pretextual analysis

outlined in Fuentes. 32 F.3d at 759. In short, the RIF

contextualizes Boeing’s proffered rationales for terminating

Tomasso so as to make them plausible and consistent. For these

reasons, I respectfully concur in part and dissent in part.10

It is axiomatic that discrimination claims resulting from

a RIF differ from a decision to fire an employee for another

reason. See, e.g., Showalter, 190 F.3d at 234-235 (outlining the

distinction as applied to the prima facie requirements for

bringing a claim under McDonnell Douglas). This distinction,

however, goes beyond the prima facie requirements to

necessitate a different hermeneutic for evaluating an employer’s

conduct during a RIF. For example, in Hook v. Ernst & Young,
20

we noted, with respect to a complaint pursuant to Title VII, that

“a plaintiff whose employment position is eliminated in a

corporate reorganization or work force reduction carries a

heavier burden in supporting charges of discrimination than

does an employee discharged for other reasons.” 28 F.3d 366,

375 (3d Cir. 1994) (citing Wilson v. Firestone Tire & Rubber

Co., 932 F.2d 510, 517 (6th Cir. 1991)).

In a RIF, a company is often forced to terminate the worst

of the best, i.e., an adequate or even high-performing employee

who is under-performing relative to his peers. As such, more

nuanced distinctions must be drawn between retained and

terminated employees. These perfectly legitimate business

distinctions manifest themselves most saliently in two respects.

First, subjective criteria take on a greater significance as the

employer looks to draw finer distinctions between employees.

Thus, subjective categories such as “attitude” and “teamwork”

need to be viewed not just in light of the warning against such

criteria articulated in Goosby, 228 F.3d at 313, but also in light

of the fact that employers must distinguish otherwise competent

employees.

Second, since the margin of distinction between

terminated and retained employees often shrinks during a RIF,

the employer’s margin of appreciation to make a good faith

mistake in evaluating talent must be respected. As this Court

noted in Fuentes:

To discredit the employer's proffered reason, however,

the plaintiff cannot simply show that the employer's

decision was wrong or mistaken, since the factual dispute
21

at issue is whether discriminatory animus motivated the

employer, not whether the employer is wise, shrewd,

prudent, or competent.

32 F.3d at 765. Finally, lest one think that RIF will become a

mask behind which discriminating employers may hide their

animus, a court may always question whether a true RIF, for

example one perpetuated by a business decline, occurred. See,

e.g., Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104,

1109 (8th Cir. 1994) (questioning whether the company was

actually conducting a RIF). 

As the majority notes, Tomasso has produced no

evidence that the RIF was part of a broad plan to lay off older

employees. Maj. Op. at 16 n. 8. Consequently, we should allow

the RIF to contextualize Boeing’s proffered rationales. Applying

this lens to Boeing’s conduct, Tomasso has not adduced

evidence sufficient to create a genuine issue of material fact as

to whether Boeing’s proffered reasons are pretextual. For

example, Tomasso claims that he was not informed that

attendance at crew meetings was mandatory. If Tomasso had

been fired for cause as a result of his failure to attend such

meetings, then the optional nature of the meetings would be a

significant factor in questioning their relevance and,

consequently, whether the rationale was a pretext. In a RIF,

however, Tomasso’s reluctance “to go the extra mile” and attend

optional meetings, or the PVA planning meeting, become

plausible reasons for his termination. In this vein, Wood’s

failure to state that Tomasso’s performance was deficient is
 The language of Tomasso’s affidavit is especially 11

illuminating. Tomasso questions Boeing’s motives by painting

himself as a competent employee:

at no point did Mr. Wood indicate that I was deficient in

meeting any of my job requirements. He also did not

express to me a dissatisfaction with the way I was

transitioning to the PVA method, or point out any

deficiencies in my performance with regard to PVA. In

fact, Mr. Wood indicated in both of my performance

meeting that I was meeting all my expected levels of

accomplishment. (emphasis added).

I had never been reprimanded or counseled for not

attending (crew meetings), and my non-attendance was

never an issue in my performance reviews. I have always

attended, or called in to be present by phone at, every

meeting which I was told was mandatory. (emphasis

added).

Such observations miss the point; many competent employees are

legitimately terminated in a RIF. As such, Tomasso’s competency

is insufficient to defeat summary judgment. 

22

insufficient to defeat summary judgment.11

Moreover, Tomasso does not point to any evidence that

contradicts Wood’s perception that Tomasso’s attitude and

teamwork lagged behind his peers. See Furr v. Seagate Tech.
23

Inc., 82 F.3d 980, 988 (10th Cir. 1996) (noting that “[i]t is the

manager's perception of the employee's performance that is

relevant”). For example, Tomasso fails to proffer a competing

employee review, or any form of relative comparator, that

demonstrates a perception of superior performance vis-à-vis his

peers. Since Tomasso has failed to carry his burden, I would

affirm the order of the District Court granting summary

judgment to Boeing on Tomasso’s ADEA, PHRA, and ERISA

claims.