EEOC v. The Boeing Co., No. 07-16903 (9th Cir. Apr. 8, 2009)

| Apr 11, 2009 | Daily Developments in EEO Law |

I was away for a long Easter weekend, separated from all electronics.  Welcoming me on my return was this nice victory for the EEOC, reversing summary judgment for two claimants terminated in a reduction in force.  The Ninth Circuit, in an unpublished opinion, sends these Title VII sex discrimination and retaliation claims back to the district court for a trial.

EEOC v. The Boeing Co., No. 07-16903 (9th Cir. Apr. 8, 2009):  Two claimants, Ms. Castron and Ms. werede, received low scores on reduction-in-force (“RIF”) assessments and were terminated, allegedly because of sex discrimination or in retaliation for opposing discrimination. 

For the first claimant, “[a]fter complaining of a hostile work environment, Castron was transferred to a new work group and was terminated in a RIF two months later, in October 2002. The critical inquiry is whether Castron’s employment experience, including her transfer and its connection to a subsequent RIF that led to her termination, would allow a jury to decide in the EEOC’s favor.”

The panel finds genuine issues of material fact about discrimination and retaliation.  Regarding the former, the panel locates a genuine issue of material fact based on direct evidence:

“A coworker testified that Castron’s supervisor, Bill Charlton (‘Charlton’), had made a number of demeaning and derogatory comments about women. These comments, considered along with Charlton’s interactions with Castron over the course of her employment at Boeing, are sufficient to create an inference of discriminatory motive even though the comments were not directed specifically at Castron or made in regard to decisions about her employment. . . . These comments are far more severe than the ‘stray remarks’ of an ‘ambivalent’ nature we have previously held insufficient to establish such an inference.”

That some of the sexist comments were not specifically directed at Ms. Castron was not outcome-determinative. “The discriminatory animus exhibited by Castron’s supervisor constitutes direct evidence of pretext, which in this case is sufficient to defeat summary judgment even though the comments did not refer specifically to Castron. Based on Charlton’s sexist comments alone, a jury might reasonably infer that Charlton’s decision to transfer Castron, rather than a male coworker about whom she complained, to a position where her job would be less secure may have resulted from improper motivations, including discriminatory intent, retaliatory intent, or both.”

The court also found, alternatively, that there was sufficient evidence of pretext to warrant a trial: “Castron’s supervisor in her new department, Rick Hobby (‘Hobby’), had previously referred to Castron as a ‘little girl’ and made a ‘joking’ inquiry as to whether she ‘broke a nail.’ Al thoughthese comments occurred two years prior to Castron’s firing and Boeing argues these comments are mere ‘stray remarks,’ Hobby’s comments constitute at least circumstantial evidence of discriminatory animus.”  Moreover, co-workers testified that her performance was superior to male employees who survived the RIF.

As for the second claimant, though she did not have the same direct evidence, the panel found that there was sufficient indirect evidence, under a burden-shifting method of proof, to survive summary judgment.  The panel rejects a same-actor inference in this case because of a countervailing factor:  “none of the employees who the supervisors ranked lower than werede in the April and July RIFs ultimately suffered as a result: all six men had their RIFs cancelled or successfully sought redeployment within Boeing, and none was laid off. Given the evidence that werede’s RIF scores were not worthy of credence, which we discuss further below, a jury could find that werede suffered discrimination, notwithstanding any inference arising from her supervisors’ prior employment decisions that were more favorable, or at least less adverse, to werede.”

Moreover, “werede, the only woman in her skill code, was laid off while every male employee identified for termination based on their RIF scores in all three RIFs ultimately remained at Boeing. According to werede, some of these employees retrained employment because Rob Feuerstein (‘Feuerstein’), the department’s supervisor, offered them assistance in finding other positions. werede testified that Feuerstein did not offer her similar assistance. Assuming a jury credited werede’s testimony, it might then find Boeing’s asserted rationale pretextual based both on Feuerstein’s failure to treat werede the same as male employees and on ‘the inexorable zero’ female employees who remained in the department after the RIF.”

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