Joseph J. Tomasso v. The Boeing Company

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, 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, ie., 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 employ*712ees 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 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 710 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 Tomas-so 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 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. 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-á-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.

. I concur with footnote two of the majority’s opinion, which affirms the grant of summary judgment against Tomasso on the ERISA claim.

. The language of Tomasso’s affidavit is especially 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.