Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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 )
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



                              2
 Corp. v. Green, 

(1973).1 Although Boeing
 conceded that Tomasso made out a prima facie case of age
 discrimination, the District Court found that Tomasso failed, in
 the pretext phase, to produce sufficient evidence to discredit
 Boeing’s rationales for his layoff.

        Before this Court, as before the District Court, Boeing
 offered several reasons for Tomasso’s layoff. Some of these
 rationales, if believed, could fully explain the decision; other
 explanations appear partial and secondary. We conclude that
 Tomasso adduced evidence sufficient to create a genuine issue
 of material fact as to whether Boeing’s proffered reasons are
 pretextual. First, under our decision in Fuentes v. Perskie, 

(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


      1
          See Fasold v. Justice, 

, 183-84 (3d Cir. 2005).
      2
        Tomasso did not respond to Boeing’s motion for summary
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
        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

                               4
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

                               5
Despite Tomasso’s low overall score, Wood did not consider
Tomasso a bad employee. In fact, Wood considered all of the
employees who were evaluated to be “good performing
employee[s].”
        The employees in a group were ranked against each other
based on their overall scores. Employees were then selected for
layoff, beginning with the lowest-ranked member in a group and
moving up the list until the desired number of employees had
been identified.
        In the Supplier Quality Department, the seven employees
with the lowest scores were selected for layoff. All of these
employees were over the age of 40. The oldest employee in the
Supplier Quality Department (age 70) was rated second to last.
All employees under the age of forty were retained, and no
employee under the age of forty was rated lower than fourteenth.
However, only five of 43 employees in the Supplier Quality
Department are under 40, and five of the 36 retained employees
were Tomasso’s age or older at the time of the evaluation (ages
58, 61, 61, 63, and 68).
        Tomasso brought suit in the District Court for the Eastern
District of Pennsylvania, alleging that Boeing laid him off due
to his age. In an amended complaint, Tomasso claimed
violations of the ADEA, PHRA, and ERISA. Boeing moved for
summary judgment on all counts. Because the McDonnell
Douglas burden-shifting framework governs both the ADEA
claim and the PHRA claim, and because Boeing conceded that
Tomasso had made out a prima facie case of age discrimination,
the District Court’s discussion focused on the pretext phase.
The District Court found that Tomasso failed to demonstrate that
Boeing’s proffered rationales for his layoff were pretextual, and
granted summary judgment against Tomasso on all of his

                                6
 claims. Tomasso filed a timely notice of appeal.3
                           II. Analysis
         Fuentes v. Perskie, 

(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. 

This burden is “relatively


       3
        The District Court had jurisdiction over Tomasso’s federal
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., 

, 554 (3d Cir.
2005).
       4
         Ordinarily, to make out a prima facie case under
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., 

, 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, 

, 234-235 (3d Cir. 1999).

                                  7
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.” 

articulates a nondiscriminatory reason,
Tomasso must respond by citing evidence that the rationale is
pretextual. 

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., 

, 320 (3d Cir. 2000)
(“‘Subjective evaluations are more susceptible of abuse and
more likely to mask pretext.’”) (quoting Weldon v. Kraft, Inc.,

, 798 (3d Cir. 1990)); see also Liu v. Amway Corp.,

, 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.” 

. Tomasso must do more than show that Boeing was
“wrong or mistaken” in deciding to lay him off. 

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., 

, 467 (3d Cir. 2005) (emphasis
added). In other words, Tomasso must “demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or

                               8
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.’” 

(alteration in original) (footnote omitted) (citing
Ezold v. Wolf, Block, Schorr & Solis-Cohen, 

, 531,
533 (3d Cir.1992); Josey v. John R. Hollingsworth Corp., 

, 638 (3d Cir.1993); Chauhan v. M. Alfieri Co., Inc.,

, 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.,

, 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

                                9
substantial doubt on a fair number of them, the plaintiff may not
need to discredit the 

n.7; see also

; Abramson v. William Paterson Coll. of
New Jersey, 

, 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

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

                               10
 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.5 Additionally, Wood stated that procurement
 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


       5
        Performance development partnership plans appear to be
forms that employees first fill out themselves and then discuss and
revise with their managers.

                                 11
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, 

. Tomasso’s evidence, if believed, does not merely
suggest that the low score assigned by Wood was “wrong or
mistaken,” 

, or that Wood innocently
misperceived Tomasso’s interest in PVAs. Rather, one who
believed Tomasso’s affidavit could find “such weaknesses,
im plausibilities, inconsiste nc ie s, inc ohe re nc ie s, or
contradictions” in Boeing’s explanation as to deem it
“‘unworthy of credence.’” 

(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., 

, 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

                              13
 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., 

, 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, 

, 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.6 Second, Wood stated that Tomasso received a score
 of one for “communications” in part because he was difficult to


      6
         Wood stated that he informed Tomasso of the problem and
that Tomasso corrected it at some point. Tomasso, however,
claims that Wood never mentioned any problems with his supplier
folders.

                                14
 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, 

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


       7
       Tomasso represents that he missed meetings because he
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
 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.9 Furthermore, a


       8
        Tomasso also appears to contend that the evaluation
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, 

(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.’” 

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.
       9
       We comment briefly on the dissent, which contends that
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
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
 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.




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
 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 

. 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., 

(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,


      10
         I concur with footnote two of the majority’s opinion,
which affirms the grant of summary judgment against Tomasso on
the ERISA claim.

                                19
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.” 

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

, 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 

, 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

                               20
       at issue is whether discriminatory animus motivated the
       employer, not whether the employer is wise, shrewd,
       prudent, or 

. 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., 

,
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



                               21
 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.


      11
          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.


                              22
Inc., 

, 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.




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