A seemingly close-call ADEA pretext case wins a new life on appeal in this unpublished Tenth Circuit decision, though drawing three separate opinions that collectively give the district court judge something to chew on at trial.
Woods v. Boeing Co. , No. 07-3358 (10th Cir. Dec. 8, 2009): The employee, a loft tooling developer, worked in a department that designed patterns for making tools to be used to make aircraft parts. His last review before he lost his job — by his manager Walt Galloway — was “‘met all expectations’ in all categories. Categories included technical skills and knowledge, quality and productivity, and ‘people working together.'” When the facility where Woods worked was acquired by another employer, Sprint, “Boeing managers and human resources employees [began] the task of reviewing all employees to make recommendations as to which employees should be offered positions with Spirit.” Galloway selected Woods’s job for elimination. The summary judgment record indicated that Galloway’s choices for termination overall at the plant skewed against older employees.
“Of the five employees that Galloway supervised in the tool lofting unit, plaintiff concedes that two had received higher performance reviews from Galloway than plaintiff had. The other two had received the same ratings as plaintiff when Galloway was reviewing their performance for Boeing. However, when Galloway rated the employees for Spirit, the youngest of these three, (age 42) was rated much higher than plaintiff Woods (age 55) or the third employee (age 49).
“Galloway supervised other employees as well. In total, he supervised 24 employees at the time of this selection process. Only eleven of the 24 were 48 years old or older, but all seven of the employees who were not recommended for hire were 48 or older.”
The majority opinion, per curiam but (by process of elimination) authored by Judge Holloway, holds that there was a genuine issue of material fact about pretext. Though the rationale for the elimination of Woods’ job was (according to a set of notes) “limited skills/ low quality/ low productivity/ marginal teaming abilities,” the panel holds that “[e]ach of these reasons is contradicted by his last performance review, Woods asserts. According to Mr. Galloway’s prior evaluation, plaintiff met all expectations in ‘Quality and Productivity,’ ‘Technical Skills’ and ‘Teamwork’ – the same qualities that Galloway later deemed deficient.” Moreover, “Galloway cited plaintiff’s purported ‘marginal teaming abilities,’ but admitted that this was a completely subjective evaluation. This court has often said that use of subjective criteria, while not alone sufficient to show discrimination, is evidence that a jury may use to find pretext.” Finally, the court cites as supportive, but not controlling, the numeric evidence the younger employees fared better in the shake-out.
Judge Anderson, concurring “in part” (though in fact concurring in the judgment), in his separate opinion sounds doubts that the pretext method of proof should survive in the ADE are after Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), noting that in another recent, unpublished opinion the court had observed that a panel of this court, referring to the use of pretext as proof, noted that “some have criticized McDonnell Douglas as improperly diverting attention away from the real question posed by the ADEA-whether age discrimination actually took place-and substituting in its stead a proxy that only imperfectly tracks that inquiry.” Paup v. Gear Products, Inc., 327 Fed. Appx. 100, 113, 2009 WL 1740512, at *11 (10th Cir. June 19, 2009).
While agreeing that the plaintiff had presented adequate evidence of pretext, Judge Anderson challenges whether the employee’s evidence that he was qualified for his position carries much weight in a case where the workplace is entirely reorganized: “Minimum qualifications are relevant to making a prima facie case, but hiring decisions turn on much more. When, as here, a new owner spends a significant amount to acquire a business, it is a given that it expects to run a better and more profitable operation than the former owner. In pursuit of that goal, it is entitled and expected to look for and hire ‘the best of the best,’ so long as the plan is not to cull the work force of protected groups.”
He also criticizes the plaintiff’s use of numeric evidence and doubts its admissibility: “Mr. Woods derives percentages from pools of five, nineteen, twenty-four (combining the five and the nineteen), and 370, with nothing but broad inferences to tie them all together. In the first place, I would eliminate the pool of five for percentage purposes as being statistically meaningless, and I would question the combined pool of twenty-four on the same grounds. . . . The group of 370, over which Ricky Morriss was the director, is even more remote in relevance on multiple grounds. Additionally, reference to the age of 48 for creating a classification of those retrained and not retrained, is wholly arbitrary. If, for instance, there is no meaningful legal distinction between, say, ages 47 and 49, the classifications chosen by the plaintiff from the group of five would change for statistical purposes.”
Finally, Judge Anderson highlights what he finds as a weakness of the evidence bearing on the decision-maker’s state of mind: “It is hard to see in this case what axe, for example, Walt Galloway had to grind. And, the record is devoid of any nexus by way of ‘conspiratorial’ meetings or otherwise between Walt Galloway and others involved in this three-level hiring process. Furthermore, it strains credulity to believe that these middle-level managers were focused on some nefarious plan which impacted upon the plaintiff here when managers and human resources personnel were working ’round the clock’ reviewing 8,000 Boeing employees for recommendations as to their possible employment with Spirit”
Judge Hartz offers his own, perfectly cryptic take on the case in a three-sentence concurring opinion: “I concur in Judge Holloway’s opinion. I also concur in Judge Anderson’s concurrence except to the extent that it disagrees with Judge Holloway’s opinion. But even where it disagrees, I believe that Judge Anderson’s concurrence makes important observations worthy of consideration on remand.”
So the bottom line is that the employee gets a trial (assuming no settlement), but on key issues concerning admissibility of evidence and jury instructions, it is difficult to sort out what the mandate will be on remand.