Apsley v. The Boeing Company

FILED
United States Court of Appeals
Tenth Circuit

August 27, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PERRY APSLEY; BOB BAILEY;
JACOB A. BAKK; GARY BALL;
PEGGY S. BELL; THOMAS BELTON;
MELONDA BIRCHER; JERRY L.
BRANSTETER; MICHAEL E.
BURGARDT; ROCKY R. BURRIS;
DANIEL D. BURROWS; BETTY
CHILDERS; LARRY E. COMBS;
HARVEY J. CONYAC; LOREN W.
COX; PHYLLIS A. COX; LINDA L.
DEZARN; WILLIAM D. DOSHIER;
ALAN S. EPPERSON; LLOYD C.
FANSLER; JERALD J. GILBERT;
RICHARD GOTTHARD; BRIAN
GROOM; DENISE A. HARRIS; RON W.
HENDERSHOT; VERNA J. HOUSTON;
LARRY W. JAMES; GARY L.
JOHNSON; MELVYN J. JOHNSON;
DONALD R. JONES; RALPH O.
KEENER; DANNY R. KENNEDY;
MELVIN E. KERNS; GORDON B.
KINKEAD; JIMMY LE; CARLTON D.
LEE; STEPHEN L. LINCK; FREDDY J.
MCCOLPIN; GLENNYS M.
MONTGOMERY; CATHY J.
MUNSELL; JAN W. MURRAY;
HUYEN T. NGUYEN; LUYEN D.
NGUYEN; KENT W. OWEN;
LOWANDA J. PATTON; PAUL D.
PETE; BRENT L. POPP; JAMES E.
PORTER; JAY E. POWELL; WILLARD
J. RATCHFORD; VERONICA RIOS;
RICHARD D. ROEDER; ALBERT
SCHLOETZER; WILLIAM H.
SETCHELL; JAMES C. SHEPPARD;
DEBRA L. SMITH; SAMMY J. SMITH;
SHARON A. SOUTHERN; LINDA C.
SPARRAR; ABEL L. VASQUEZ;
HENRY F. VICTOR; JAMES R.
WALLACE, Unit Manager; CAROLYN
Y. WHEATON; SYLVESTER
WILLIAMS, II; JANET M. WILSON;
WALTER WOODS; BETTY R.
YOUNG; VERNON L. BENTLEY;
REDELL COLEMAN; CHARLES D.
ELDER; CHIP GILCHRIST, II; JANET
S. HANSEN; JERRY L. MCKINNEY;
JOSEPH E. SCHROEDER; STEVEN M.
SCHWIND; TEDDY F. SILL; CHARLES
STARK; MICHAEL B. WELSH;
CHARLES L. BEAN, JR.; JAMES
HAMMON; ALLEN C. HATCHER;
MARK MCCURDY; STEVEN NGO; BA
PHAM; DONALD E. TITUS; JIMMY
WALLACE; BARBRA ODOM; FRANK
CASH; RICHARD WALLIN; DALE C.
JAYNE, JR.; STEVEN BASIC; ROBERT
W. BOYD; and REGINA SUE
WALKER, individually and on behalf of
those similarly situated,

Plaintiffs - Appellants,

JAMES BOWMAKER; DAVID L.
CLAY; HENRY F. BUTLER; THROMA
A. DYAS; OLIVIA J. HOUSLEY;
SHARRON N. JAMES; WARREN K.
PYLES; DARLENE E. ROZAR; JAMES
WALKER; ROY T. WELLS, individually
and on behalf of those similarly situated,

Plaintiffs,

v. No. 11-3238

2
 THE BOEING COMPANY; SPIRIT
AEROSYSTEMS,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:05-CV-01368-EFM-KMH)

Lawrence W. Williamson, Jr., (Uzo L. Ohaebosim, with him on the brief), of the
Williamson Law Firm, LLC, Kansas City, Missouri, for Plaintiffs-Appellants.

James M. Armstrong, (Trisha A. Thelen, Todd N. Tedesco, and Carolyn L. Matthews,
with him on the brief), of Foulston Siefkin LLP, Wichita, Kansas, for Defendants-
Appellees.

Before BRISCOE, Chief Judge, BALDOCK and HOLMES, Circuit Judges.

BRISCOE, Chief Judge.

I. INTRODUCTION

This case arises from the Boeing Company’s (“Boeing”) 2005 sale, to Spirit

AeroSystems, Inc. (“Spirit”),1 of facilities in Wichita, Kansas, and Tulsa and McAlester,

Oklahoma (the “Wichita Division” or “Division”). On June 16, 2005, Boeing terminated

the Division’s entire workforce of more than 10,000. The next day, Spirit rehired 8,354

1
Boeing negotiated the sale with the Onex Corporation, a private-equity firm that
formed Mid-Western Aircraft Systems, Inc. Mid-Western changed its name to Spirit in
July 2005. We will generally refer to Onex, Mid-Western, and Spirit simply as “Spirit.”

3
employees, who had been selected by Boeing’s managers. Although older employees

predominated in the workforce both before and after the sale, a lower percentage of older

workers than younger ones were rehired.2 The plaintiffs (the “Employees”) sued, seeking

to represent a class of about 700 former Boeing employees who were not hired by Spirit.

The Employees alleged, among other things, that Boeing, Onex, and Spirit (the

“Companies”) violated the Age Discrimination in Employment Act (“ADEA”), the

Employee Retirement Income Security Act (“ERISA”), Title VII of the Civil Rights Act

of 1964 (“Title VII”), and the Americans with Disabilities Act (“ADA”). In two separate

orders, the district court granted summary judgment on the Employees’ Title VII and

ADA claims, Apsley v. Boeing Co., No. 05-1368-MLB, 2007 WL 3231526 (D. Kan. Oct.

30, 2007), and their ERISA and ADEA claims, Apsley v. Boeing Co., 722 F. Supp. 2d

1218 (D. Kan. 2010).3 The court denied the Employees’ motion for reconsideration.

Mem. & Order, Apsley v. Boeing Co., No. 05-1368-EFM (D. Kan. Mar. 28, 2011) (Doc.

365) [hereinafter “Mem. & Order of Mar. 28, 2011”]. The court certified its orders as

final judgments under Federal Rule of Civil Procedure 54(b), and the Employees

appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

2
Throughout this opinion, the term “older employees” will refer to employees who
were age forty or older at the time of the divestiture. “Younger employees” will refer to
employees who were under forty.
3
The district court granted summary judgment only as to the Employees’
collective ADEA claims based on theories of disparate impact or a pattern or practice of
disparate treatment. The Employees still have individual ADEA disparate treatment
claims which are pending in district court and which are not at issue here.

4
II. BACKGROUND

A. Boeing’s Decision to Sell the Wichita Division

As part of a strategy to become more competitive, Boeing began in the late 1990s

to focus its business on the initial engineering and design, sales and marketing, and final

assembly of aircraft. Boeing increasingly outsourced the manufacture of component

assemblies to outside suppliers and began to sell off some of its internal manufacturing

operations.

One such operation was the Wichita Division. In 2002, Jeff Turner, the Division’s

general manager, discussed restructuring possibilities with Boeing executives.

Restructuring was intended to reduce costs to make the Division competitive with outside

suppliers for Boeing contracts. Ultimately, in 2003, Boeing decided instead to sell the

Division’s assets. Boeing advertised the Division for sale in 2003 and 2004, emphasizing

the potential for cost savings and growth under new ownership. The new company would

have a long-term supply agreement with Boeing, while cost savings would also make it

competitive for non-Boeing business.

The parties’ dispute in this case is primarily about how Boeing expected these

savings would be achieved. According to the Companies, the new company would save

money by paying its employees less and increasing productivity. Boeing believed that the

Wichita Division labor contracts provided wages higher than the market required in

Wichita, Tulsa, and McAlester. It also considered the Division’s job codes to be too

narrow and rigid, leading to inefficiencies. It was thought that a new, separate company

5
would be able to negotiate less costly, more flexible labor contracts.

The Wichita Division’s labor costs were also high because of the advanced age

and seniority of its workforce. Significant seniority-based layoffs in the early 2000s had

eliminated many younger employees, and the average age of the workforce was

approximately forty-nine. The Companies, the Employees argue, planned to cut costs by

getting rid of older, more expensive workers.

B. Selection of Spirit’s Workforce

In 2004, Boeing entered into exclusive negotiations with Onex (the company

which later formed Spirit) for the divestiture of the Wichita Division. The Wichita

Division employed 10,671 people in June 2005, but Boeing projected that Spirit could

still meet the Division’s statement of work with only 80 to 90% of the workforce. The

parties decided that Boeing management would recommend the most skilled and flexible

employees for Spirit to hire. The Companies also agreed that Boeing would be

responsible for paying layoff benefits for the employees Spirit did not hire. As a result,

they determined that the purchase price would be adjusted upward if Spirit kept less than

90% of eligible employees. Spirit initially asked Division management to select 85% of

the workforce; ultimately, management recommended 86.2% and Spirit retained 87.5%.

The Wichita Division’s Human Resources personnel developed an evaluation

system for managers to use which included the following factors: skills, productivity,

6
quality, teamwork/attitude, safe work practices, lean,4 and corrective action. Managers

were given details and examples for each criterion, but they were given no indication of

how to weigh the seven factors. They were not instructed to consider employees’ past

training records, but they were specifically told not to consider age.

The Wichita Division was made up of twenty-nine director groups, which varied in

size from a handful of employees to over a thousand. Under each director, one or two

levels of managers oversaw the hourly employees. Each level of management was

involved in the selection process. Over the course of the first half of 2005, hundreds of

meetings took place involving managers and human resources representatives. Typically,

an employee’s first-level manager gave an initial recommendation, and then other

managers who had worked with the employee provided input. The managers eventually

agreed on whether or not to recommend the employee. The directors then approved or

disapproved the managers’ decision, and a panel reviewed the directors’ determinations.5

Near the end of the selection process, human resources representatives conducted

an internal study to assess how racial minorities, women, and older individuals were

faring under the selection process. The study showed that all three categories were being

adversely impacted. The Companies have stated that they “did not equate these

differences with discrimination or any other reason,” Aplee. Supp. App. at 1094, but after

4
“Lean” referred to an employee’s aptitude for eliminating waste and promoting
efficiency.
5
The selection process at the smaller Oklahoma facilities was slightly different,
but the distinctions are not relevant here.

7
the study was conducted, “there were some additional recommendations of employees to

be hired in organizations where there were differences in the selection rate as it related to

race or gender,” id. “There were no adjustments made based on any differences as they

related to the age of the workforce in a particular group.” Id.

C. Pension Negotiations

While Division managers were selecting Spirit’s workforce, Spirit and its

consultants were working out the new company’s pension plan. Once employees were

terminated from Boeing, they could no longer accrue additional benefits under its plans.

As for benefits that were already accrued, the Companies agreed that Spirit would assume

Boeing’s pension liabilities at the close of the sale for the employees it hired, as long as

Boeing transferred sufficient funds to cover them. Boeing would remain responsible for

the pensions of employees Spirit did not hire.

Spirit also decided to set up a new pension plan for its employees. Spirit

negotiated with the International Association of Machinists (“IAM”), and agreed to

contribute to the IAM National Pension Fund (“NPF”), a joint labor-management

multiemployer pension fund. According to the schedule used by the NPF, an employer

entering the fund when Spirit did would ordinarily have to contribute $1.35 for each hour

worked by each eligible employee. But because Boeing’s workforce was atypically old,

with many employees approaching or already past the retirement age of fifty-five, the

NPF’s actuaries calculated that Spirit’s rate would be $1.65. Spirit took the position that

it should pay the lower rate because it believed the average age of its workforce would

8
decrease over time. In the end, Spirit and the NPF agreed that Spirit would pay a rate of

$1.35, but it would place an additional $.30 per hour in an escrow account. In 2010, the

NPF would determine whether $1.35 or $1.65 was the correct rate. Due, apparently, to a

change in its policies, the NPF determined in January 2006 that Spirit was no longer

required to make the additional payment, and returned the escrowed funds.

D. Spirit’s Workforce Demographics

The sale closed on June 16, 2005. On that day, Boeing terminated its entire

Wichita Division workforce of 10,671 employees. The next day, 8,354 of them were

hired and came to work as Spirit’s Day One workforce. Employees over forty were

recommended and rehired6 at slightly lower rates, overall, than employees under forty.

The average age of Spirit’s workforce was 48.2, about five months younger than the

Wichita Division workforce was the day before.

E. District Court

The Employees, individually and on behalf of a class, sued Boeing, Onex, and

Spirit, alleging violations of federal law in seven counts. They alleged age discrimination

in violation of the ADEA, under theories of pattern or practice of disparate treatment and

disparate impact (Count I); interference with ERISA rights (Count IV); and retaliation

6
Some employees who received offers transferred to other Boeing locations or
retired from Boeing and did not come to work for Spirit. As a result, more employees
were recommended for hire than were actually rehired.

9
(Count VII).7 The Employees also sought declaratory judgments on several issues

(Counts II and III); alleged a breach of contract in violation of the Labor Management

Relations Act (Count V); and sought injunctive and equitable relief relating to their other

claims (Count VI). The district court conditionally certified a class claim on the

Employees’ ADEA count. Apsley, 2007 WL 3231526, at *2.

In response to three motions filed by the Companies, the district court dismissed

all of the Employees’ claims except their individual claims of disparate treatment under

the ADEA. In their first motion, the Companies sought judgment on the pleadings on

Counts II, III, and IV under Federal Rule of Civil Procedure 12(c). The court dismissed

Counts II and III, which sought declaratory judgments that the Companies had failed to

keep proper records and had used improper consent forms. Id. at *3. The court refused to

dismiss Count IV, in which the Employees alleged that the Companies had worked

together to prevent the Employees from obtaining and receiving pension benefits in

violation of ERISA § 510, 29 U.S.C. § 1140. Mem. & Order at 10–11, Apsley v. Boeing

Co., No. 05-1368-MLB (D. Kan. Dec. 18, 2006) (Doc. 139) [hereinafter “Mem. & Order

7
The Employees’ retaliation claim mentions females and minorities who have
complained of discrimination, so the district court took this count to allege retaliation
under Title VII. Apsley, 2007 WL 3231526, at *1. In addition, the district court
understood it to allege retaliation under the ADA because it referred to individuals who
exercised disability rights. Id.
The district court noted that Count VII also mentioned retaliation relating to
workers’ compensation, FMLA rights, and whistle-blowing, but it did not analyze these
aspects of the claim separately. Id. The Employees have not challenged the district
court’s treatment of these issues on appeal.

10
of Dec. 18, 2006”].

The Companies next filed a narrow motion for summary judgment based on the

Employees’ failure to exhaust administrative remedies. This motion, which the court

granted, was limited to (1) ADEA claims arising from conduct that predated the asset sale

and (2) claims for retaliation under Title VII and the ADA. Apsley, 2007 WL 3231526,

at *3.

Finally, the Companies moved for summary judgment on the Employees’ claims

under the ADEA and ERISA. The court granted the motion in full as to the ERISA

claim, and as to two of the Employees’ three ADEA claims: their collective action claim

for a pattern or practice of intentional age discrimination and their individual and

collective disparate impact claims. Apsley, 722 F. Supp. 2d at 1249.

The Employees filed a motion for reconsideration, which the district court denied.

Mem. & Order of Mar. 28, 2011. Although the Employees’ individual claims for

disparate treatment in violation of the ADEA remained unresolved, the district court

granted the parties’ motions for certification of its prior orders for review by this court

under Rule 54(b). Mem. & Order, Apsley v. Boeing Co., No. 05-1368-EFM (D. Kan.

July 11, 2011) (Doc. 384).

III. ANALYSIS

We review de novo the district court’s decisions granting summary judgment for

the Companies, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998), and

we view the record in the light most favorable to the Employees, Westland Holdings, Inc.

11
v. Lay, 462 F.3d 1228, 1229 (10th Cir. 2006). Although the Employees have provided

evidence that discrimination occurred during Boeing’s divestiture of the Division, we

agree with the district court that the Employees cannot prove a pattern or practice of age

discrimination. And while older employees fared slightly worse than younger ones in the

divestiture, the Employees are unable to show that the Companies’ hiring practices had a

significant disparate impact on older workers. We also agree with the district court that

the Employees cannot show that the Companies acted with the specific intent to interfere

with their attainment of pension benefits. Finally, we see no error in the district court’s

dismissal of the Employees’ retaliation claims.

A. Pattern or Practice Under the ADEA

Under the ADEA, a class of plaintiffs proceeding under a pattern or practice theory

must first make a prima facie showing that “‘unlawful discrimination has been a regular

procedure or policy followed by an employer or group of employers.’” Thiessen v. Gen.

Elec. Cap. Corp., 267 F.3d 1095, 1106 (10th Cir. 2001) (quoting Teamsters v. United

States, 431 U.S. 324, 360 (1977)). If they succeed, “‘[t]he burden then shifts to the

employer to defeat the prima facie showing of a pattern or practice by demonstrating that

the plaintiffs’ proof is either inaccurate or insignificant.’” Id. (quoting Teamsters, 431

U.S. at 360) (alteration omitted). “‘If an employer fails to rebut the inference that arises

from the [plaintiffs’] prima facie case,’ the finder of fact can conclude ‘that a violation

has occurred’ and the trial court can award prospective equitable relief.” Id. (quoting

Teamsters, 431 U.S. at 361).

12
 “If the plaintiffs also seek ‘individual relief for the victims of the discriminatory

practice,’ the case moves into the second or subsequent stages.” Id. (quoting Teamsters,

431 U.S. at 361). “In these additional proceedings, it must be determined whether each

individual plaintiff was a victim of the discriminatory practice. Importantly, by having

prevailed in the first stage of trial, the individual plaintiffs reap a significant advantage for

purposes of the second stage: they are entitled to a presumption that the employer had

discriminated against them.” Id.

The district court concluded that the Employees’ statistics did not establish a prima

facie case of a pattern or practice of discrimination. Apsley, 722 F. Supp. 2d at 1238–40.

It also considered the Employees’ statistical, circumstantial, and anecdotal evidence as a

whole and held that it was “insufficient to establish a pattern or practice of age

discrimination.” Id. at 1245. The Employees argue that they presented sufficient

evidence to raise a triable issue of fact on this claim. They rely on statistics; statements

from Boeing managers; discussions between Spirit and its consultants; Dr. Goldberg’s

expert opinions, especially regarding the subjective nature of the selection process; and

the Companies’ documentation of employees’ ages. We will discuss each category of

evidence in turn.

1. Statistics

“[G]ross statistical disparities . . . alone may in a proper case constitute prima facie

proof of a pattern or practice of discrimination.” Hazelwood Sch. Dist. v. United States,

433 U.S. 299, 307–08 (1977) (discussing statistics in Title VII context). Even where the

13
disparities are less striking, statistical evidence may be combined with “historical,

individual, or circumstantial evidence” to establish a pattern or practice. Pitre v. W. Elec.

Co., 843 F.2d 1262, 1267 (10th Cir. 1988). Statistics must always be evaluated in the

context of “all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340

(discussing statistics in a Title VII case).

The Employees’ statistical evidence was prepared by an expert, Dr. Charles

Mann.8 Dr. Mann analyzed employee demographics with regard to the Companies’

recommendations as well as their hiring outcomes, and he provided results by director

group and in the aggregate. The district court summarized Dr. Mann’s results as follows:

Dr. Mann’s recommendation analysis considered the recommendation
decisions of twenty-nine director groups that had at least one hire or non-hire.
The recommendation decisions of eight of these director groups were
uninformative9 and, thus, were not studied. Of the remaining twenty-one
director groups, Dr. Mann found that only four had statistically significant
differences adverse to older employees.FN51 Dr. Mann’s report showed,
though, that in all but five of the director groups, workers over the age of 40
were not recommended at a rate higher than workers under the age of 40.
FN51
These four director groups contained only 35% of the older
employees who were not recommended for hire.

Viewing the recommendation decisions of the director groups as a
whole, Dr. Mann found that workers over the age of 40 were adversely
affected at a statistically significant level. According to Dr. Mann, the

8
The Companies submitted their own expert’s report, but they did not rely on it for
summary judgment purposes, and the district court therefore did not consider it. Apsley,
722 F. Supp. 2d at 1238 n.53. We do not consider it either.
9
Dr. Mann considered “uninformative” the groups in which all the employees
were older or no employees were deselected; these groups did not offer any way to
compare results between the older and younger employees. Aplt. App. at 610 n.1.

14
 difference between the number of people over the age of 40 that his model
predicted would be recommended (8,028) and the number that was actually
recommended (7,968) was greater than five standard deviations. This number
of standard deviation correlates with a 1 in 50,000 chance that the results
observed were the product of random occurrence. Dr. Mann did not offer an
opinion as to what caused this difference.

With respect to his outcome analysis, Dr. Mann considered the outcome
decisions of twenty-eight director groups that had at least one hire or non-hire.
The outcome decisions of nine of these directors were uninformative and, thus,
were not studied. Of the remaining nineteen director groups, Dr. Mann found
that only three had statistically significant differences adverse to older
employees.FN52 Dr. Mann’s report showed, though, that in all but one of the
director groups, workers over the age of 40 were not recommended at a rate
higher than workers under the age of 40.
FN52
These three director groups contained only 20% of the older
workers that were not hired by Spirit.

Viewing the outcome decisions of the director groups as a whole, Dr.
Mann found that workers over the age of 40 were adversely affected at a
statistically significant level. According to Dr. Mann, the difference between
the number of people over the age of 40 that his model predicted would be
hired (7,285) and the number that was actually hired (7,237) was over four and
a half standard deviations. This number of standard deviations also correlates
with a 1 in 50,000 chance that the results observed were the product of random
occurrence. Dr. Mann did not offer an opinion as to what caused this
difference.

In response, Defendants contend that Plaintiffs’ statistical evidence is
insufficient to establish a pattern or practice of age discrimination.
Specifically, Defendants point out that in neither analysis did Dr. Mann report
statistically significant disparities adverse to workers over the age of 40 in
more than four of the twenty-plus director groups he studied. They also direct
the Court’s attention to the fact that, out of the thousands of employees
recommended for hire or actually hired, if Defendants would have
recommended sixty more workers over the age of 40 or hired forty-eight more
workers over the age of 40, workers over the age of 40, in the aggregate,
would not have been adversely affected at a statistically significant level.

Apsley, 722 F. Supp. 2d at 1237–38 (footnote omitted).

15
 The district court agreed with the Companies, concluding that the Employees’

statistics were “insufficient to establish a prima facie case of pattern-or-practice age

discrimination,” whether considered by director group or in the aggregate. Id. at 1238.

With regard to individual groups, the district court concluded that “in order for Dr.

Mann’s director-group statistics to establish a pattern or practice of discrimination, they

would, at a minimum, have to show that in a significant number of director groups older

workers were adversely affected at a statistically significant level.” Id. at 1238–39. The

district court also considered the Employees’ aggregated results. It noted that “some

courts have held that when the plaintiff’s statistics show a disparity between the expected

value and the actual value greater than four or five standard deviations, the plaintiff has

established a prima facie case of disparate treatment.” Id. at 1239. Here, however, the

court emphasized that it was “looking at thousands of hiring decisions, not hundreds.” Id.

Due to this large sample, de minimus disparities may become statistically
significant. Here, Dr. Mann’s model predicted that out of over 9,000
recommendations decisions, sixty more Boeing workers over the age of forty
should have been recommended. Similarly, Dr. Mann’s model predicted that
out of over 8,000 hires, forty-eight more workers over the age of 40 should
have been hired. Stated another way, Boeing recommended and Spirit hired
over 99% of the workers that Dr. Mann’s model predicted. The Court finds
this disparity to be practically insignificant, and, as a consequence, that
Plaintiffs’ aggregate results also do not establish a prima facie case of age
discrimination.

Id. (footnotes omitted). The court also noted that “the percentage of Spirit’s Day One

workforce that was over the age of 40 (86.6%) is nearly identical to the percentage of

workers who were considered for hire that were over the age of 40 (87.4%).” Id.

16
 The Employees contend that the district court misinterpreted their statistical

evidence. In particular, they challenge the district court’s conclusion that even though the

Employees’ aggregated statistics showed a disparity between older and younger workers

that was statistically significant, the disparity lacked “practical significance.” This is, in

the end, a case that turns largely on the statistics. Accordingly, we begin our review of

the district court’s conclusions with a brief discussion of the key statistical concepts at

issue.

Older workers were recommended and hired by Spirit at lower rates than were

younger workers. This fact alone, of course, does not necessarily mean that any

discrimination occurred, much less that a pattern or practice of discrimination existed. A

completely age-neutral process could, purely by chance, have resulted in fewer older

employees being recommended or hired. The Employees’ statistical evidence was

offered to demonstrate that a nondiscriminatory process would have been highly unlikely

to yield the observed disparities. In Carpenter v. Boeing Co., 456 F.3d 1183, 1202 (10th

Cir. 2006), we used a hypothetical coin-flip experiment to illustrate related statistical

concepts. We find the same approach instructive here.

“Consider an experiment involving 1,000,000 flips of a coin.” Id. “The canonical

result, of course, would be 500,000 heads and 500,000 tails.” Id. Assume that, instead,

the observed results were 510,000 heads and 490,000 tails. To determine whether the

coin was fair, a statistician could model the results one would expect to obtain if one

assumed that heads and tails were equally likely on each flip. See Ramona L. Paetzold &

17
Steven L. Willborn, The Statistics of Discrimination § 9:2 (2011) [hereinafter “Paetzold

& Willborn”] (defining a “fair coin” as one that will “have an equal chance of turning up

heads or tails on each toss”). We will refer to this assumption as the “null hypothesis.”

See David H. Kaye & David A. Freedman, “Reference Guide on Statistics,” in Reference

Manual on Scientific Evidence (3rd ed. 2011) [hereinafter “Kaye & Freedman”] at 249.

If one were to model the results of conducting the million-flip experiment many times

with a fair coin, most of the results would approach an even heads-to-tails distribution.

But one would also expect to find a certain number of anomalous results—where, by pure

chance, a fair coin landed much more often on either heads or tails. The model would

reveal the actual observed result—510,000 heads—to be extremely unlikely. “Although

the magnitude of the difference is small, only about 4% more heads than tails, the odds of

such a difference occurring in the absence of a weighted coin are exceedingly small—the

departure from equality is 20 standard deviations.” Carpenter, 456 F.3d at 1202.

The odds of such a difference occurring can be referred to as the probability, or p-

value. “If p is small, the observed data are far from what is expected under the null

hypothesis—too far to be readily explained by the operations of chance. That discredits

the null hypothesis.” Kaye & Freedman at 251. In other words, in the coin example,

“[t]he difference strongly indicates some influence on the results other than the operation

of pure chance.” Carpenter, 456 F.3d at 1202 (emphasis in original). The coin, a

statistician could conclude, was not fair. See Paetzold & Willborn § 4:11 (applying these

principles to a sex discrimination example).

18
 In the present case, we understand Dr. Mann to have tested the null hypothesis that

older workers were no less likely to be recommended or hired than younger workers.10

Dr. Mann used a model to predict how many older employees should have been

recommended and hired, which he could compare with the actual observed results. This

allowed him to determine how likely it was—assuming the process was not biased against

older employees—that Spirit would end up with a workforce age distribution that was, for

older employees, as bad as or worse than the one that occurred.

Dr. Mann analyzed the Companies’ recommendations and hires with regard to the

workforce in the aggregate, as well as in some smaller units, including by director

group.11 The p-value was very low when the workforce was considered in the aggregate.

Dr. Mann calculated that, taking the workforce as a whole, both for recommendations and

for outcomes, there was less than one chance in 50,000 that a process not actually

weighted against older employees would provide results as bad as or worse than the

observed results. When Dr. Mann broke his analysis down by director group, he found

low p-values in only a small number of groups.

Like most courts approaching similar cases, the district court discussed the

10
Dr. Mann was conducting a one-tailed test, which looked only at whether older
employees were treated less favorably to a statistically significant degree. Thus, he was
not testing whether older and younger employees were treated equally. That hypothesis
would have been appropriate for a two-tailed test. See Aplee. Supp. App. at 1399 (Dr.
Mann’s deposition).
11
The district court only discussed the aggregate and director group statistics, and
neither party relies on the other results on appeal. Mem. & Order of June 30, 2010 at 23
n.50.

19
evidence in terms of statistical significance and standard deviations. Statistical

significance is a term of art which describes the point at which a p-value is low enough

that the null hypothesis should be rejected. Kaye & Freedman at 251. “Statistical

significance is determined by comparing p to a preset value, called the significance level.

The null hypothesis is rejected when p falls below this level.” Id. The significance level

is typically placed at 5%. Standard deviations are simply a way of expressing p-values in

certain situations. Id. at 251 n.101.

The Supreme Court has instructed, in the context of grand juror selection, that

“[a]s a general rule . . . , if the difference between the expected value and the observed

number is greater than two or three standard deviations, then the hypothesis that the jury

drawing was random would be suspect to a social scientist.” Castaneda v. Partida, 430

U.S. 482, 496 n.17 (1977); see also Hazelwood, 433 U.S. at 311 n.17 (noting, in a Title

VII case, that “a fluctuation of more than two or three standard deviations would undercut

the hypothesis that decisions were being made randomly with respect to race”). Under

the model used in Castaneda, “two or three standard deviations” is equivalent to “p-values

of about 5% and 0.3% when the statistic is normally distributed.” Kaye & Freedman at

251 n.101. In other words, the reference to two standard deviations in that case described

a one-in-twenty chance that the observed results would be obtained if the null

hypothesis—that jury selection was conducted at random, without regard for race—were

true.

The district court phrased some of Dr. Mann’s results in terms of standard

20
deviations.12 It noted that the difference between predicted and actual recommendations

was greater than five standard deviations, while the difference between predicted and

actual hires was greater than four-and-a-half deviations. Apsley, 722 F. Supp. 2d at

1237–38. As the district court recognized, these results typically would be considered

statistically significant. Castaneda, 430 U.S. at 496 n.17.

Nonetheless, the district court concluded that this was a case where “a large

number of standard deviations simply will not be enough.” Apsley, 722 F. Supp. 2d at

1239. In the passages excerpted above, the court reasoned that small discrepancies in

large samples mean little even if they are statistically significant. The court noted that

any discrepancy would have disappeared if Boeing had recommended sixty more older

workers or if forty-eight more older workers had been hired by Spirit. It also pointed out

that “Boeing recommended and Spirit hired over 99% of the workers that Dr. Mann’s

model predicted.” Id. Thus, it concluded that any disparity was “practically

insignificant.” Id.

The Employees argue that the district court was wrong to disregard statistical

significance on the basis that their evidence lacked practical significance. The

12
In the report the Employees cite, Dr. Mann offered his results in terms of
probabilities, not standard deviations, and he explained that standard deviations are not
relevant in this case because the test he used, the Fisher Exact Test, does not assume a
normal distribution of results. Aplee. Supp. App. at 1401. He noted, however, that the
standard of significance he used—5%—was derived from the Hazelwood court’s
reference to two standard deviations in a case that did assume normal distribution, or
about a one in twenty chance. Id.

21
Companies, in their response brief, cite no cases supporting a formal “practical

significance” requirement at the summary judgment stage.13 The district court, however,

cited several secondary sources which have cautioned that in large samples, relatively

small discrepancies may become statistically significant. Id. at 1239 n.59. Quoting Kaye

& Freedman’s second edition, the district court reasoned that “[w]hen practical

significance is lacking—when the size of the disparity or correlation is negligible—there

is no reason to worry about statistical significance.” Id. at 1239 n.60. The disparities

upon which the Employees rely are indeed small in light of the thousands of total hires

and recommendations at issue. But just as a relatively small percentage difference

between heads and tails would be quite surprising in the million-coin-flip experiment,

what is noteworthy here is that the observed disparity persisted over the course of eight or

nine thousand individual recommendations and offers. We are suspicious of the

Companies’ selective rehire practices for the same reason we would suspect a coin that

13
The Employees erroneously assert that the Third Circuit has said “‘practical’
significance has . . . not been adopted by any court in this country.” Aplt. Br. at 43 (citing
Stagi v. Nat’l RR Passenger Corp., 391 F. App’x 133, 140 (3d Cir. 2010) (unpublished)).
In fact, the Stagi court noted that “some courts have adopted” the test, but that “no Court
of Appeals . . . has found ‘practical significance’ to be a requirement for a plaintiff’s
prima facie case of disparate impact.” Stagi, 391 F. App’x at 139. Even so, the Third
Circuit did point to a Second Circuit case, Waisome v. Port Authority, 948 F.2d 1370,
1375–77 (2d Cir. 1991), which endorsed a kind of practical significance approach. In
Waisome, the court noted a statistically significant disparity of 2.68 standard deviations
between the examination passage rates of white and black candidates. Id. at 1375. But it
rejected the practical importance of the figure because “if two additional black candidates
passed the written examination the disparity would no longer be of statistical
importance.” Id. at 1376.

22
came up heads 510,000 out of 1,000,000 times. In other words, it is precisely because we

are looking at thousands of hiring decisions that the statistics are noteworthy.14

Furthermore, we note that the district court’s approach to determining the legal

significance of statistics has been criticized by one of the very sources the court relied on.

The district court quoted section 12:03 of Paetzold & Willborn’s 2002 edition for the

proposition that “[s]tatistical significance is affected by the number of observations, so

that for large samples, spurious significance can result.” But in the 2011 edition of their

treatise, after discussing the tendency of some courts to ascribe too much weight to

statistical evidence, Paetzold & Willborn note:

Courts have also erred on the other side of the continuum by failing without
good reason to credit statistical evidence. In Apsley v. Boeing, for example,
the court rejected a statistical showing of age discrimination because if 48
more people over 40 has been hired or 60 more had been recommended for
hire, the results would no longer have been statistically significant. This
approach has little to recommend it; any showing of statistical significance can
be avoided by positing the existence of some random number of
counter-events that did not occur.

Paetzold & Willborn § 4.03 (2011). Thus, we acknowledge that the Employees’ concerns

are not wholly baseless.

Despite these grounds for criticizing the district court’s analysis, however, we

14
The Fourth Circuit has provided a coin-toss illustration of this principle as well.
“[B]y increasing the absolute numbers in the data, chance will more readily be excluded
as a cause of any disparities found. For example, if a coin were tossed ten times in the
first day and came up heads four times, no one would think the coin was biased (0.632
standard deviations), but if this same ratio occurred for a total of 10,000 tosses, of which
4,000 were heads, the result could not be attributed to chance (20 standard deviations).”
Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 336 n.17 (4th Cir. 1983).

23
cannot conclude that the district court erred in granting summary judgment for the

Companies. The Employees “bore the initial burden of making out a prima facie case of

discrimination.” Teamsters, 431 U.S. at 336. Because they “alleged a systemwide

pattern or practice,” they “had to prove more than the mere occurrence of isolated or

accidental or sporadic discriminatory acts.” Id. (internal quotation marks omitted). To

overcome summary judgment, they had to introduce sufficient evidence to allow a

rational juror to conclude “by a preponderance of the evidence that racial discrimination

was the [Companies’] standard operating procedure—the regular rather than the unusual

practice.” Id. The statistical evidence before us would not permit any reasonable trier of

fact to resolve this matter in the Employees’ favor.

To the contrary, we agree with the district court that the Employees’ statistics

suggest, at most, isolated or sporadic instances of age discrimination. See Apsley, 722 F.

Supp. 2d at 1245 (“Although Plaintiffs have produced evidence that may indicate that

discrimination did occur during the divestiture, they have failed to put forth the

‘substantial proof’ necessary to show that intentional age discrimination was Defendants’

standard operating procedure.” (quoting King v. Gen. Elec. Co., 960 F.2d 617, 624 (7th

Cir. 1992))). As the district court properly noted, the Employees’ own figures show that

the Companies recommended and hired over 99% of the older employees they would

have been expected to recommend and hire in the absence of any discrimination. Id. at

1239. While this disparity might still lead a social scientist to suspect that the divestiture

process was not wholly free of age-based discrimination, Castaneda, 430 U.S. at 496

24
n.17, it would not permit a jury to find that such discrimination was the Companies’

standard operating procedure, Teamsters, 431 U.S. at 336.

Like the district court, we find further support for this conclusion in the fact that

older employees made up a similar percentage of the Companies’ workforce immediately

before and after the divestiture. Apsley, 722 F. Supp. 2d at 1239–40. In Equal

Employment Opportunity Commission v. McDonnell Douglas Corp., the Eight Circuit

noted that “an important statistic to consider in the [reduction in force (‘RIF’)] context is

the difference in the percentage of older employees in the work force before and after the

RIF.” 191 F.3d 948, 952 (8th Cir. 1999). In that case, the court characterized as

“insignificant” a drop in older employees from 14.7% of the workforce to 13.6%. Id.

The decline in this case—from 87.4% to 86.6%—was even smaller.

The district court also concluded that Dr. Mann’s evidence, broken down by

director group, failed to prove a pattern or practice of discrimination. The district court

reasoned that the Employees “would, at a minimum, have to show that in a significant

number of director groups older workers were adversely affected at a statistically

significant level.” Apsley, 722 F. Supp. 2d at 1239–40. We note that this analysis has

not escaped academic criticism either. See Joseph L. Gastwirth et al., Some Important

Statistical Issues Courts Should Consider in Their Assessment of Statistical Analyses

Submitted in Class Certification Motions: Implications for Dukes v. Wal-Mart, 10 Law,

Probability & Risk 225, 234 (2011) (pointing out that even if Boeing had hired

only employees under 40 in every single director group, “statistical significance [would]

25
not occur in a majority of the units”); cf. Capaci v. Katz & Besthoff, Inc., 711 F.2d 647,

654 & n.4 (5th Cir. 1983) (criticizing defendants’ “divide and conquer” approach to

statistical evidence, under which “it became impossible to demonstrate significance with

such small numbers in many instances, since even a record of hiring or promoting zero

women would not yield statistically significant results”). The Employees, however, ask

us to focus not on their director-group statistics, but rather on their company-wide

aggregated data. See Aplt. Br. at 39 (“The only way to ensure that the proper population

is analyzed is to aggregate data.”); id. at 42 (“[S]tatistics cannot be used to determine

whether there is a company-wide policy in effect unless it [sic] considers the entire

company.”). As we have explained, that data is insufficient “in light of all the

surrounding facts and circumstances.” Teamsters, 431 U.S. at 340.15

15
One final note is in order regarding the Employees’ statistical evidence. In the
facts section of their brief, the Employees state that the percentage of older employees in
Spirit’s workforce continued to fall after the divestiture, from 87.4% on the day Spirit
took over to 74.67% two-and-a-half years later. Aplt. Br. at 28. The district court
declined to consider these figures, concluding that the Employees had shown no “logical
connection” between the Companies’ actions before and after the divestiture. Apsley,
722 F. Supp. 2d at 1240 n.61 (citing Bingman v. Natkin & Co., 937 F.2d 553, 556–57
(10th Cir. 1991)).
On appeal, the Employees offer no legal argument in response. They simply
assert—also in their facts section—that “[t]his demographic trend was not accidental” and
that “[p]art of the plan was to hire new workers, even as they were in the process of
letting the older workers go, and to continue to hire people, even after the reduction.”
Aplt. Br. at 27–28. Without more, these statements are inadequate to present the issue for
our consideration. See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th
Cir. 2004) (“Plaintiff did not mention these issues anywhere in the argument section of
his brief on appeal. They have therefore been waived. . . . Scattered statements in the
appellant’s brief are not enough to preserve an issue for appeal. Appellees are not
(continued...)

26
 2. Statements About Older Employees

We have held that even where “the statistical disparity is insufficient alone to

establish a prima facie case, the plaintiff may get over his or her initial hurdle by

combining statistics with historical, individual, or circumstantial evidence.” Pitre, 843

F.2d at 1268 (quotation omitted). The Employees seek to supplement their statistical

evidence with other evidence that they claim demonstrates a pattern or practice of

discrimination. In particular, they cite statements the Companies’ managers and

consultants made before, during, and after the asset sale. Most of these statements have

to do with the Companies’ concern that the workforce was aging and their desire to save

money on pension costs. For the most part, this evidence fits into three general

categories: (1) statements made by Boeing managers and executives having to do with the

economic health and prospects of the Wichita Division; (2) comments workers heard

from lower-level managers; and (3) communications between Onex/Spirit executives and

their consultants having to do with pension contributions. None of this evidence bolsters

the Employees’ statistical showing sufficiently to preclude summary judgment for the

Companies.

a. Statements by Boeing Managers and Executives About the
Economic Health of the Wichita Division

Jeffrey Turner was the general manager of the Wichita Division under Boeing, and

15
(...continued)
expected to respond to every grievance that may be alluded to in the appellant’s statement
of facts.” (citations omitted)).

27
he became Spirit’s chief executive officer after the asset sale. The Employees note that

Turner “believed an older workforce was indicative of an unhealthy business and was

very concerned about the aging workforce.” Aplt. Br. at 11. He discussed these concerns

in meetings with management.

In his deposition, Turner provided innocuous explanations for his concerns. He

explained that an aging workforce indicates that a business is not growing, because it

suggests the business is not hiring new employees. Under those circumstances, new

employees are not being trained by experienced ones. Turner also noted a related

problem—because so many workers were in the older age range, a large proportion of the

workforce could retire at the same time, suddenly leaving the company without

experienced employees to train new ones. In response, the Employees offer nothing to

suggest that Turner’s concerns had anything to do with discriminatory stereotypes or even

a desire to get rid of, rather than hold onto, older employees. See Hazen Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993) (“It is the very essence of age discrimination for an

older employee to be fired because the employer believes that productivity and

competence decline with old age.”). We are mindful that “mere protestations of lack of

discriminatory intent and affirmations of good faith do not suffice to rebut a prima facie

case.” Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988)

(citing Castaneda, 430 U.S. at 499 n.19). But under the circumstances of this

case—particularly given the high percentage of older workers Spirit retained—we do not

think any rational trier of fact could take Turner’s statements, in context, as evidence of

28
the Companies’ intent to get rid of older employees.

The other statements the Employees rely on from upper-level management are no

stronger. The Employees point, for example, to a director’s comments “that potential

buyers would be looking at the age of the workforce and it would affect their decision to

purchase the company.” Aplt. Br. at 15. We agree with the district court that this sort of

observation “merely reflects a fact of life,” Mem. & Order of Mar. 28, 2011 at 7, and does

not suggest discrimination.

b. Statements from Lower-Level Management

The Employees also point to lower-level supervisors’ comments. One manager

said that older employees should “look to retirement” and another manager made

“continuous comments that the workforce was getting older.” Aplt. App. at 831. “Less

than one month before the divestiture, Plaintiff Charles Stone’s supervisor, Tim Parks,

said Mr. Stone was going to be terminated with the ‘old fuckers.’” Id. at 762. A manager

said “that employees were too old to do certain work asked of them.” Id. at 873. A

manager said “that those old enough to retire should consider retiring because new

management for [the new company] would scrutinize the performance of older workers.”

Id. at 739. A manager went around and asked all individuals over 55 when they intended

to retire. Id. at 877. An employee said that a human resources representative told him he

was being terminated for lack of productivity, but also said that he was actually being

terminated because of his age. Id. at 750. An employee said that a supervisor said the

“current workforce was older and aging and younger people could do thing[s] faster and

29
more efficiently.” Id. at 771. An employee said that a supervisor asked if he was going

to take his retirement in March 2005 and, when he said he had no plans to do so, she said

he “better rethink that position and retire.” Id. at 843. Finally, a supervisor “brought up

several times that the average age of the workforce was to [sic] high and if Boeing wanted

to stay competitive, they had to get that age down.” Id. at 889. We need not discuss each

of these comments individually. Some of them certainly provide evidence that there were

lower-level managers at Boeing who held discriminatory stereotypes with regard to older

workers.

Although the Employees present no evidence that any manager actually acted on

these attitudes, cf. Pitre, 843 F.2d at 1270, we acknowledge that the comments suggest

some discrimination may have occurred. Nonetheless, this is not a case where anecdotal

evidence complements a statistical showing of discrimination to “br[ing] the cold

numbers convincingly to life.” Teamsters, 431 U.S. at 339. Rather, across a workforce

of over 10,000 people in three locations, the handful of statements the Employees cite

constitute only evidence of “isolated or sporadic discriminatory acts by the employer[,

which are] insufficient to establish a prima facie case of a pattern or practice of

discrimination.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875–76

(1984).

c. Communications Between Spirit and its Consultants

The Employees also cite a number of communications between Spirit and its

consultants which seem to show that the company expected to reduce the age of its

30
workforce. These communications, which took place in the context of negotiations with

the IAM NPF over pension contributions, show that Spirit was assuming it would operate

with a younger and less expensive workforce. See Aplt. App. at 420 (“[A]ll costs are

estimated on the basis of the current Wichita Div. workforce, which is almost certainly

older and more expensive than the workforce [Spirit] will have going forward.”). They

also show that Spirit assumed that workers forty-five to fifty-four years old were the most

expensive; for purposes of modeling future costs, one email noted “we need to move

employees out of this age range.” Id. at 410. Emails among Spirit managers and

consultants discussed the demographic changes that would have to occur for the NPF to

lower pension contribution rates, such as decreasing average service by five years and

decreasing average age by seven years over the course of three or five years. Id. at

422–23. A managing director at Spirit wrote: “Since we are moving from a

demographically expensive population towards one that should be cheaper, we will be

arguing that this trend should be reflected in the original cost per $ benefit.” Id. at 408.

The district court considered these communications to be irrelevant because they

had to do with pension negotiations, not hiring decisions. Management in

Wichita—which made the hiring recommendations—was not involved in the negotiations

over pension costs. Apsley, 722 F. Supp. 2d at 1241 n.64. On appeal, the Companies

also argue that the consultants’ assumptions were, in any event, benign. They point to a

negotiator’s declaration that Spirit anticipated a demographic shift “as retiring employees

were replaced by new workers” and because the company expected to grow its business

31
and hire large numbers of new workers. Aplee. Br. at 11–12. They also note that the

cited communications include a note that Spirit “will need to hire experienced workers

(i.e., older) in order to ramp up production in the early years.” Id. at 12.

To the extent that the parties’ conflicting interpretations of the foregoing

statements could contribute to the Employees’ prima facie case, we conclude that no

genuine issue of material fact can remain in light of the statistical evidence. The

Companies note that the average age of Spirit’s Day One workforce was only slightly

lower than Boeing’s had been. Aplee. Br. at 28. The average age of all Wichita Division

employees on June 16, 2005 was 48.6 years, while the average age of all Spirit employees

on June 17, 2005 was 48.2. Id. These numbers are not consistent with a plan to

dramatically alter the Companies’ workplace demographics.16

3. Other Evidence

a. Subjective Process

The Employees argue that the Companies’ selection process, which they

characterize as “extremely subjective,” is itself evidence of discrimination. Aplt. Br. at

16
Compare Kolesnikow v. Hudson Valley Hosp. Center, 622 F. Supp. 2d 98, 116
n.15 (S.D.N.Y. 2009) (noting that a one-year drop in average age within a small sample
size was insufficient to give rise to an inference of bias against older employees), Scelza
v. North Fork Bank, 33 F. Supp. 2d 193, 202 (E.D.N.Y. 1999) (stating that a drop from
average age of forty-two to thirty-nine following a merger was “negligible” and
“statistically insignificant”), and Mastie v. Great Lakes Steel Corp., 424 F. Supp. 1299,
1320 (E.D. Mich. 1976) (characterizing as “nominal” a drop in average age of 1.29
years), with Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1129 (6th Cir. 1998)
(considering a difference in average age of seven years following restructuring to be
“startling” and probative of age discrimination).

32
50.

Because “subjective decision making provides an opportunity for unlawful

discrimination,” Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981), we “view with

skepticism subjective evaluation methods,” Garett v. Hewlett-Packard Co., 305 F.3d

1210, 1218 (10th Cir. 2002). Such methods, however, are not per se unlawful. Santana

v. City of Denver, 488 F.3d 860, 866 (10th Cir. 2007). Rather, “the possession by

management of unbridled discretion will tend to confirm implications of . . . .

discrimination drawn from statistical disparities.” Lilly v. Harris-Teeter Supermarket,

720 F.2d 326, 338 (4th Cir. 1983).

We have already concluded that no rational trier of fact could draw implications of

a pattern or practice of age discrimination from the statistical disparities upon which the

Employees rely. Their arguments regarding the subjectivity of the Companies’ hiring

process are therefore largely beside the point. Similarly, we attach little importance to the

fact that the Companies, after learning their hiring process was adversely impacting older

employees, women, and racial minorities, chose to make changes only with regard to the

latter two groups. Since the final results of the process do not suggest widespread

discrimination, we need not consider what conclusions the Companies should or should

not have drawn from their internal report in the midst of the process.

b. Tracking Employees’ Ages

The Employees also argue that managers tracked workers’ ages throughout the

selection process, a practice which can suggest discrimination. For the most part, the

33
documents the Employees cite are innocuous. One of the cited documents from Tulsa

shows only aggregated age numbers, not the ages of particular employees. The

Employees did not respond to the Companies’ averment that this information was kept by

human resources to monitor the status of protected classes and was not discussed by the

managers. See Armbruster v. Unisys Corp., 32 F.3d 768, 781 (3d Cir. 1994) (overruled

on other grounds) (observing that age information maintained to ensure compliance with

state and federal law is not generally evidence of intentional discrimination). The

Employees also point to more suspicious handwritten notes from the Tulsa hiring process,

which contain four employees’ names and ages, along with reasons for not

recommending them for hire. But we agree with the district court that even if these notes

are evidence of discrimination, they do not indicate any widespread pattern or practice.

Apsley, 722 F. Supp. 2d at 1241–42.

c. Expert Testimony

The Employees sought to tie all of their evidence of discrimination together with

the report of an expert, Dr. Goldberg. The district court, however, found Dr. Goldberg’s

opinions unhelpful, as they went to “lay matters which a jury is capable of understanding

and deciding without the expert’s help.” Id. at 1242 n.62. The Employees argue that “Dr.

Goldberg’s testimony is admissible and supports [their] claims.” Aplt. Br. at 54.

Dr. Goldberg opined that the Companies “were attempting to reduce the age of

[the] Wichita Division workforce through the selective rehire process.” Aplt. Br. at 10.

She also thought that “[t]he adverse impact suffered by older workers occurred in a

34
‘climate of age-based animus.’” Id. at 11. These are legal arguments which contribute

nothing to the Employees’ case. Dr. Goldberg concluded, in addition, that the

Companies’ process was “excessively subjective,” provided “fertile grounds for bias,”

and was otherwise unfair and unreliable. Aplt. Br. at 10–11, 53–54. Assuming for the

sake of argument that these conclusions were accurate, they are nonetheless of little use to

the Employees. Our role is not to determine whether the Companies’ hiring process

could have been better, but only whether a jury could discern from the evidence a pattern

or practice of intentional age discrimination. See EEOC v. Picture People, Inc., 684 F.3d

981, 989 (10th Cir. 2012) (“[A] court should not ‘act as a super personnel department that

second guesses employers’ business judgments.’” (quoting Jones v. Barnhart, 349 F.3d

1260, 1267 (10th Cir. 2003)). For the reasons explained above, we conclude that it could

not.

4. Pattern or Practice Conclusion

The district court properly granted summary judgment for the Companies on the

Employees’ pattern or practice claim. To the extent that the Employees’ evidence gives

rise to any inference of widespread age discrimination, the Companies have successfully

rebutted the Employees’ showing “by demonstrating that [their] proof is either inaccurate

or insignificant.” Thiessen, 267 F.3d at 1106. The evidence, considered in context,

points to “the mere occurrence of isolated or accidental or sporadic discriminatory acts”

rather than a “systemwide pattern or practice” of age discrimination. Teamsters, 431 U.S.

at 336; cf. EEOC v. Sandia Corp., 639 F.2d 600, 614 (10th Cir. 1980) (affirming district

35
court’s finding that defendant engaged in a pattern or practice of age discrimination

where evidence of “age bias and age based policies . . . throughout the performance rating

process . . . corroborate[d] the statistical evidence and support[ed] an inference that age

was a factor in selection for layoff”). Thus, the Employees fail to create a genuine issue

of material fact as to the existence of a pattern or practice of discrimination.17

B. Disparate Impact Under the ADEA

Having rejected the Employees’ collective-action claim for disparate treatment, we

turn to the Employees’ claim of disparate impact. “‘[T]o establish a prima facie case of

disparate impact age discrimination, plaintiffs must show that a specific identifiable

employment practice or policy caused a significant disparate impact on a protected

group.’” Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006)

(quoting Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir. 1991)). Once a

plaintiff has made a prima facie showing, the employer may prove that “‘the

differentiation is based on reasonable factors other than age.’” Meacham v. Knolls

Atomic Power Lab., 554 U.S. 84, 91 (2008) (quoting 29 U.S.C. § 623(f)(1)).

The district court assumed, without deciding, that the Employees could satisfy the

17
We emphasize that individual former employees of Boeing may still seek to
prove ADEA claims of disparate treatment, but they must do so without the benefit of a
presumption in their favor. See Thiessen, 267 F.3d at 1106 n.8. “‘It could not be more
plain that the rejection of a claim of classwide discrimination does not warrant the
conclusion that no member of the class could have a valid individual claim.’” Id.
(quoting Cooper, 467 U.S. at 878); see generally, e.g., Woods v. Boeing Co., 355 F.
App’x 206 (10th Cir. 2009) (unpublished) (reversing summary judgment for Boeing in
former employee’s ADEA suit arising from the divestiture).

36
first element of disparate-impact analysis—identifying a facially neutral employment

practice or criteria—by pointing to the Companies’ subjective, seven-factor evaluation

process. Apsley, 722 F. Supp. 2d at 1246. We do the same.

Echoing its pattern-or-practice statistical analysis, the district court concluded that

the Employees could not show that they had suffered a significant disparate impact. Id. at

1247–48. As we explained above, the Employees’ statistics reveal a highly unlikely

disparity in the treatment of older and younger workers. But the disparity is, in absolute

numbers, very small. We hold that under the circumstances of this case, the Employees

have failed to demonstrate that the divestiture “caused a significant disparate impact” on

older employees. Pippin, 440 F.3d at 1200; see also Thomas v. Metroflight, Inc., 814

F.2d 1506, 1511 n.4 (10th Cir. 1987) (“Beyond a requirement of statistical significance,

the Court may require in disparate impact cases that the disparity be ‘substantial’ as

well.”).

C. ERISA § 510

Under ERISA § 510, “[i]t [is] unlawful for any person to discharge, fine, suspend,

expel, discipline, or discriminate against a participant . . . for the purpose of interfering

with the attainment of any right to which such participant may become entitled under the

plan.” 29 U.S.C. § 1140. The provision “prevent[s] unscrupulous employers from

discharging or harassing their employees in order to keep them from obtaining vested

pension rights.” Andes v. Ford Motor Co., 70 F.3d 1332, 1338 (D.C. Cir. 1995). The

typical § 510 case deals with an adverse employment action taken against an individual,

37
such as when “an employer fired an employee who had worked for the company for over

nine years, four months before his pension would have vested, allegedly in order to avoid

making contributions to his pension fund.” Id. (discussing Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133 (1990)).

On occasion, however, courts have also applied § 510 to larger-scale

organizational decisions, such as plant closures and asset sales. See, e.g., Deeming v.

Am. Standard, Inc., 905 F.2d 1124 (7th Cir. 1990); Millsap v. McDonnell Douglas Corp.,

162 F. Supp. 2d 1262 (N.D. Okla. 2001). In either context, “[a] section 510 claimant

must establish that the employer’s alleged desire to block the attainment of benefits rights

was a determinative factor in the challenged decision.” Millsap, 162 F. Supp. 2d at 1299

(citing Gavalik v. Continental Can Co., 812 F.2d 834, 860 (3d Cir. 1987)). A company

which sells or closes a business for legitimate business reasons unrelated to pension cost

avoidance does not violate § 510, even if some of the employees the company lays off do

not, as a result, become eligible for pension benefits. See id. Rather, “the whole issue is

whether reducing pension benefits by shutting down a plant . . . was a ‘motivating factor’

or was instead ‘incidental’ because there were other, neutral, business reasons at play.”

Crawford v. TRW Automotive U.S. LLC, 560 F.3d 607, 614 (6th Cir. 2009); see also

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 239 (4th Cir. 1991) (“It is

obvious that benefit costs make up a large amount of the costs of an employee to a

company, and that pension rights are a substantial component of benefit costs, but these

undeniable propositions are not sufficient standing alone to prove the requisite intent by

38
the path of pretext.”).

“To establish a prima facie case under ERISA § 510, [the Employees] must

demonstrate (1) prohibited employer conduct (2) taken for the purpose of interfering (3)

with the attainment of any right to which the [Employees] may become entitled.”

Gavalik, 812 F.2d at 852. If they meet this burden, the Companies must produce

“admissible evidence of a legitimate, nondiscriminatory reason for [their] challenged

actions.” Id. at 853. The Employees then have to demonstrate that this reason was

pretextual. Id.

The Employees do not argue, at this stage, that any individual workers within the

Division were targeted for non-rehire because they were close to vesting or for other

reasons relating to their individual pension status.18 Rather, they contend that Boeing’s

overall decision to sell off the Wichita Division and Spirit’s decision to buy it were

motivated by the Companies’ desire to operate the facilities at lower cost by reducing

18
The Employees seek to prove their § 510 case using a pattern-or-practice
framework, under which they would demonstrate individuals’ entitlement to relief in a
second phase. Aplt. Br. at 57–58. We do not address here whether § 510 permits this
approach. As the district court noted, the Employees necessarily must first demonstrate
that the Companies did something that was unlawful under § 510 in order to show that
violating § 510 was the Companies’ “standard operating procedure.” Mem. & Order of
June 30, 2010 at 17. See also Gavalik, 812 F.2d at 852–53 (applying McDonnell Douglas
burden shifting in an ERISA § 510 class action, but noting that “the class representative
must establish that discrimination was the employer’s standard practice” (internal
quotation marks omitted)). Whether the issue is framed in terms of McDonnell Douglas
burden shifting or in terms of pattern or practice, the Employees do not present sufficient
evidence that Boeing sold the Wichita Division “with the specific intent to interfere with
the attainment of protected benefits.” Millsap, 162 F. Supp. 2d at 1298 (citing, inter alia,
Hopkins v. Seagate, 30 F.3d 104, 106 (10th Cir. 1994)).

39
their pension obligations. The Companies conspired to accomplish this, the Employees

argue, by not retaining Boeing’s older employees.

The Employees compare the sale of the Division to the plant closing at issue in

Millsap, which was held to violate § 510. In that case, McDonnell Douglas Corporation

(“MDC”) decided to close its Tulsa, Oklahoma, plant after determining that the

employees there were on average the oldest and most senior in the company. 162 F.

Supp. 2d at 1270. When it decided to shut down the Tulsa facility, MDC also knew that

it could maximize pension savings by closing the plant before 1994, when a substantial

portion of its workforce would turn fifty-five and therefore qualify for greater benefits.

See id. at 1271 (noting that 300 out of 1,500 employees would turn fifty-five in 1994).

Although MDC asserted that pension cost savings played no role in its decision-making

process, the district court concluded that this claim was not credible. Id. at 1278. The

district court ultimately concluded that MDC’s “desire to block the attainment of benefits

rights was a determinative factor” in its choice to close the Tulsa plant. Id. at 1299.

In support of their argument that the divestiture was an unlawful conspiracy to

interfere with their pension rights, the Employees assert the following: Boeing was

concerned about the age of its workforce; the Companies “studied the demographics and

pension costs prior to deciding to sell the division,” Aplt. Br. at 60; “senior management

exchanged demographic information during the selective rehire process,” id.; the

Companies anticipated they would achieve savings by reducing the number of workers

the Division employed; and the Companies were dishonest about the entire divestiture

40
process. This case would be much like Millsap if the Employees’ evidence actually

supported these claims. However, it does not.

The critical flaw in the Employees’ case has to do with timing. Although the

Employees insist that the Companies studied pension costs and demographics before the

sale to Spirit closed, the Companies respond that “[i]t is undisputed that Boeing did not

look at pension costs specific to the Wichita Division until after the decision to divest was

made.” Aplee. Br. at 51. The Employees have not pointed to any evidence to the

contrary.19 The fact that the Companies were obliged to examine these costs after

deciding to sell (in order to figure out how much Boeing owed Spirit to cover pension

costs for employees Spirit retained) suggests nothing about their motivations for selling in

the first place. As the Millsap court noted, “Every time an employe[r] closes part of its

business, savings on employee benefits will be realized. That is not unlawful.” Id. at

1299. Likewise, the fact that the Companies hoped to achieve savings by operating the

Division with a smaller workforce does not demonstrate a violation of § 510. The

Companies have asserted that they expected Spirit would achieve savings, inter alia, by

paying its workers less and employing fewer of them. The Employees certainly cannot

19
The communications among Spirit’s managers and consultants do, of course,
show that Spirit expected lower pension costs under its new plan. But because these
communications occurred after Boeing’s decision to sell was made, they do not show that
the Companies decided to carry out the sale for the purpose of interfering with pension
rights.

41
show these proffered reasons to be pretextual.20

As the Employees note, the district court denied in part the Companies’ motion for

judgment on the pleadings, holding that the Companies could be liable under § 510 “‘if

plaintiffs successfully prove they participated in the alleged scheme to get rid of the older

workers.’” Aplt. Br. at 59 (quoting Mem. & Order of Dec. 18, 2006 at 18); see also

Lessard v. Applied Risk Mgmt., 307 F.3d 1020, 1028 (9th Cir. 2002) (“Parties acting in

concert can’t get away with what they couldn’t do separately.”) (Kozinski, J.,

concurring). The Employees, however, cannot prove that any such scheme existed. To

the extent that older employees were disadvantaged in the divestiture, the Employees’

own evidence points to isolated acts of discrimination—not a scheme to get rid of

20
Some courts hold that plaintiffs challenging plant-wide organizational decisions
must meet a heavier burden at the summary judgment stage than plaintiffs challenging
individualized employment decisions. See Andes, 70 F.3d at 1337–38 (“[W]e think that
as applied to sale or closure of an entire unit, the plaintiffs can satisfy § 510 only by
showing that some ERISA-related characteristic special to the unit (such as its having a
clearly above-average proportion of employees with pension rights about to vest) was
essential to the firm’s selecting the unit for closure or sale.”). This is the approach the
district court followed in this case. Mem. & Order of June 30, 2010 at 20–21.
In Crawford, the Sixth Circuit stated that plant-wide decisions are hard to
challenge under § 510, but not because they involve any heightened standard. Rather,
such cases are difficult for plaintiffs because “when plants are shut down, there will
necessarily be a variety of factors at play beyond how close certain employees might be
to vesting, and thus plaintiffs have a lot to wade through to establish liability.” Crawford,
560 F.3d at 615. “This is not due to any presumption or legal threshold erected against
their claims; the facts of these cases will always be myriad and complicated, and plaintiffs
must show that the employer, in the midst of all this, in some way targeted certain
employee benefits or rights for interference.” Id. We need not determine which approach
is correct, because the Employees cannot succeed under either formulation.

42
workers for pension-based reasons—as the cause.21

D. ADA and Title VII

The final issue in this case has to do with the Employees’ claims that the

Companies did not hire women and minorities in retaliation for complaining of

discrimination or exercising disability rights, in violation of Title VII and the ADA.

Under both Title VII and the ADA, exhaustion of administrative remedies is a

prerequisite to suit. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th

Cir. 2005); MacKenzie v. City of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). Further,

administrative remedies generally must be exhausted as to each discrete instance of

discrimination or retaliation. Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194–95 (10th

Cir. 2004).

With regard to the Employees’ Title VII and ADA retaliation claims, the district

court observed that sixty-one of the named plaintiffs had checked a box for retaliation on

their EEOC charge. Apsley, 2007 WL 3231526, at *9. Nonetheless, the narrative portion

21
We note, furthermore, that Spirit had no pension-related reason to discriminate
against older workers in its hiring decisions. When Boeing sold the Wichita Division, its
pension plans effectively terminated for all the employees there; no one, old or young,
could accrue any further years of service, whether or not Spirit hired them. For the
workers Spirit hired, Boeing transferred money into a fund Spirit created. From that
fund, Spirit agreed to pay the pension benefits these workers had accrued under Boeing
upon their retirement. As for the workers Spirit did not hire, Boeing remained
responsible for paying their benefits when they reached retirement age. Because Spirit
was starting a new, separate pension plan for all of the workers it hired, it simply made no
difference to Spirit how many years of service an employee had attained with Boeing or
whether an employee’s Boeing pension had vested.

43
of their charges made clear that the retaliation they alleged had to do with consent forms

Boeing had required them to sign relating to the layoff. Id. Nothing in the EEOC forms

put the Companies on notice of retaliation claims relating to gender, race, or disability.

Id. The district court did note one exception: plaintiff Warren Pyles had filed a charge

alleging that he was retaliated against for filing an EEOC claim in 1997. Id. at *9 n.19.

But the district court concluded that this charge had nothing to do with the current

litigation and therefore did not exhaust administrative remedies for a claim that Pyles (or

anyone else) was not hired by Spirit in retaliation for protected conduct. Id. Accordingly,

the district court granted summary judgment for the Companies on the Employees’ Title

VII and ADA retaliation claims. Id. at *9.

On appeal, the Employees make two arguments. The first is that Pyles preserved

class claims for himself and others who were retaliated against in the Companies’ rehire

process. The Employees argue that it was sufficient that Pyles wrote he was seeking to

represent “all similarly situated African-Americans that have been discriminated against

because of their race.” Aplt. Br. at 66. In context, they say, it was clear he meant

“retaliated against,” not “discriminated against.”

We disagree. Although we construe it liberally, Jones v. UPS, Inc., 502 F.3d 1176,

1186 (10th Cir. 2007), there is nothing in Pyles’ claim that would have put the EEOC or

the Companies on notice that he was alleging that his non-hire by Spirit was in retaliation

for his 1997 EEOC claim. In the charge, Pyles alleged daily harassment, but he made no

mention of being terminated or not hired; the Companies note that he wrote “NA” in the

44
section entitled “Hiring/Promotion.” Aplt. App. at 1068. Moreover, Pyles’s charge is

signed and dated April 19, 2005—nearly two months before the sale closed and Boeing

terminated its workforce.22 Pyles’s mention of “similarly situated African-Americans that

have been discriminated against” did not refer to termination or rehire, either. We do not

think this charge exhausted administrative remedies for a claim that Pyles or any other

employee was retaliated against in the divestiture.23

The Employees’ second contention is that even if Pyles did not preserve the rights

of the class, the district court should make an individual determination as to each

individual plaintiff. The district court, however, already did this. See Apsley, 2007 WL

3231526, at *9 (concluding that the plaintiffs who marked “retaliation” were referring to

Boeing’s use of consent forms). The Employees give us no reason to think that the

district court erred.

IV. CONCLUSION

The judgments of the district court are AFFIRMED.

22
The Employees allege without citation to the record that Pyles was terminated
on May 30, 2005, which was an end date he provided for “the most recent date of the
harm.” Aplt. App. at 1067.
23
Thus, we do not reach the Companies’ other argument that Pyles’ claims are
irrelevant because he was no longer being represented by the Employees’ counsel when
they filed the present appeal.

45