Opinion
Civil Action No. 03-4220.
November 17, 2004
MEMORANDUM
This is an action under the ADEA, 29 U.S.C.A. § 621 et seq., and the PHRA, 43 P.S. § 951 et seq., in which defendant moves for summary judgment, Fed.R.Civ.P. 56. Plaintiff Joseph J. Tomasso, a former employee of defendant The Boeing Company, who worked as a procurement quality specialist in the Ridley Park, Pennsylvania facility, asserts that defendant terminated his employment in violation of the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. Specifically, he asserts that when he was laid off as part of a reduction-in-force, younger, less well qualified employees were retained. Upon careful consideration, summary judgment will be granted in defendant's favor for the following reasons.
"A grant of summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.'" Bensel v. Allied Pilots Ass'n, 2004 WL 2382076, at *3 (3d Cir., Oct. 26, 2004).
Defendant also moves for judgment on the ERISA claim included in Count III of plaintiff's amended complaint. Plaintiff did not respond to this argument and judgment in favor of defendant is granted on this claim also. It is unnecessary to address defendant's assertion that plaintiff failed to mitigate his damages following his layoff.
From 1962, plaintiff worked for Boeing until his layoff in January 2002. Tomasso Notes of Testimony, at 12-13. In 2001, Boeing's national budget was decreased, and for the Ridley Park facility, it was determined that a 20 per cent downscaling in costs and overhead was required. Joseph Wood Notes of Testimony, 2/13/04, at 84-85; Daniel Meyer Notes of Testimony, at 25-26. Boeing decided to achieve this goal through a reduction in force in the supplier quality department, where plaintiff was employed. Wood N.T., 2/17/04, at 36. The Human Resources Department, in conjunction with the Senior Manager of the quality department, formulated a process to implement the reduction in force — the "Redeployment Selection Process." Larry Weng Notes of Testimony, at 9, 24-27. Under the RSP, managers in the quality department evaluated their employees in various areas — organizational skills, problem solving, quality of work, quantity of work, technical competence, leadership, attitude, communications and teamwork. Wood N.T., 2/13/04, at 121. The process did not take seniority or length of service into account. Wood N.T., 2/13/04, at 115l 2/17/04 at 7. Tomasso was ranked lowest of the 43 employees rated. See Exhibit 7 to memorandum of law in support of defendant's motion for summary judgment.
Low ranking in the RSP was not necessarily related to poor performance. See, e.g., Wood N.T., 2/17/04, at 35, 120. It is undisputed that Tomasso, with over 40 years experience, had no documented negative issues. Id. at 35, 39. In the course of the RSP, he received the highest possible rating for technical competence. See Exhibit 7 to defendant's memorandum. Also, as a level 4 procurement specialist, Tomasso had amassed a skill set greater than that of a lower level procurement specialist. See, e.g., Wood N.T., 2/13/04, at 198-99; Martha Hogan-Battisti Notes of Testimony, at 35-38 Meyer N.T., at 126, 132-33. Instead, as noted, ranking in the RSP was based on the rater's subjective analysis of a particular employee's skills in the nine areas identified.See Exhibit 7 to defendant's memorandum; Wood N.T., 2/13/04, at 121.
Tomasso was ranked by his manager, Joseph Wood, who in his deposition explained the basis for his determination. See, e.g., Wood N.T., 2/17/04, at 17-18, 29, 32, 35, 47-50, 60-70, 85-86. Wood's primary concern was his perception that Tomasso did not want to perform "Process Verification Audits," a new method of assessing the procedures and capabilities of Boeing's suppliers. Wood N.T., 2/17/04 at 49-50, 60, 70-71, 85-90; 6/11/04 at 74-77, 112. Wood's perception grew out of his observations of Tomasso and his communications with him. Id. See also, Wood N.T., 6/11/04, at 79, 80-81, 81-85, 85-87; 2/17/04 at 72-74. Wood also believed Tomasso was unwilling to share his technical knowledge, although he was ranked highest in that category. Id., 6/11/04 at 105-07. Because of Wood's unfavorable evaluation, Tomasso was issued a "60 day Advance Notification of Possible Layoff for Salaried Employees" on October 26, 2001. Id., 2/13/04 at 170-71; Exhibit 9 to defendant's memorandum.
Tomasso argues that this is pretextual, because many younger employees who were retained were not even trained to perform PVAs, in particular, John Simmons and Tom Moffa, who had each worked in the quality department for less than one year at the time the RSP was completed. See John Simmons Notes of Testimony, at 13-14, 17-19, 23-25; Tom Moffa Notes of Testimony at 7, 23-24, 30, 31-33. Boeing counters that Simmons and Moffa were not trained to perform PVAs because they did not hold the same position as plaintiff. Plaintiff was responsible for Procurement Quality, Mr. Moffa ran the Material Review Segregation Area and Mr. Simmons worked on the supplier evaluation team. Neither had involvement in PVAs. They were ranked higher than plaintiff according to the manner in which they handled their specific job responsibilities. See defendant's reply memorandum at 4-5.
Tomasso argues that the objective evidence belies Wood's perceptions. The evidence cited by him includes: his participation in a largely successful PVA audit in Middle River, Maryland, see Wood N.T., 2/17/04, at 72-73; Meyer NT., at 8, 19, 22, 138-141, 142-43, 145, and performance reviews referring to his use of the process, see Exhibit 14 to plaintiff's memorandum of law in opposition to defendant's motion for summary judgment.
Seven employees received 60-day notices; all of them were over 40. See Exhibit 7 to defendant's memorandum. However, all but five of the 43 rated employees were also over 40, and several of those retained were older than Tomasso. Id.
Following issuance of the 60-day notice, Boeing offered Tomasso a position in the bargaining unit, based on his seniority. See Exhibit 9 to defendant's memorandum. Tomasso rejected this offer. Id. Thereafter, Tomasso collected unemployment benefits for six to eight months, and then retired.
Tomasso's testified that he did not apply for any jobs following his separation from Boeing, and had no discussions with potential employers, in writing, by phone or in person. Tomasso N.T., at 105. Tomasso's efforts to start a business with a cousin were unsuccessful, because of lack of funds. Id. at 107-112.
Under the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), ADEA plaintiffs must first establish a prima facie case of discrimination. Here, Boeing concedes the prima facie case, so the burden shifts to Boeing to produce evidence of a legitimate, nondiscriminatory reason for its layoff decision. See Simpson v. Kay Jewelers, 142 F.3d 639, 643-44 n. 5 (3d Cir. 1996). This burden is not great. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). "Economic necessity is a legitimate, non-discriminatory reason for employment decisions." Kelly v. Drexel University, 907 F. Supp. 864, 875 (E.D. Pa., 1995), aff'd 94 F.3d 102 (3d Cir. 1996) (citations omitted). Here, it is undisputed that plaintiff's layoff was the result of a RIF attributable to Boeing's economic constraints, and an evaluation process that identified the employees to be terminated. This satisfies Boeing's responsive burden.
Courts evaluating PHRA cases utilize the same analytical framework as in ADEA cases. Kelly v. Drexel University, 907 F. Supp. 864, 871 (E.D. Pa. 1995), aff'd 94 F.3d 102 (3d Cir. 1996) (summary judgment awarded where reduction in force necessited by economic factors resulted in elimination of plaintiff's position).
"[Boeing] need not prove that the proffered reason actually motivated its behavior, as throughout the burden-shifting paradigm, the ultimate burden of proving intentional discrimination always rests with the plaintiff." Fuentes, 32 F.3d at 763.
At this syllogistic point, plaintiff is given the opportunity to prove that the reasons advanced for the layoff are pretextual. Simpson, 142 F.3d at 644 n. 5. As the law in this circuit has evolved, this means that plaintiff must produce "some evidence, direct or circumstantial, from which a factfinder couldreasonably 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." Kelly, at 876, citing Fuentes, 32 F.3d at 764;see also Simpson, 142 F.3d at 644-45. It is not sufficient to show that the employer's decision was mistaken or otherwise nondiscriminatory.Fuentes, 32 F.3d at 765. Plaintiff's evidence must indicate that the decision involved discriminatory factors. Simpson, 142 F.3d at 644-45.
Here, plaintiff challenges the evaluation process that brought about his layoff. He argues: (1) he was senior to and more experienced than other, younger employees who were not laid off; and (2) Wood's perception that plaintiff would not, or did not want to, participate in PVAs was erroneous. Both arguments are unavailing.
Plaintiff's seniority and length of service were not considered in the RSP. However, there is nothing inherently discriminatory about a RIF that does not take seniority into consideration. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 6 (1993) (seniority is not equivalent to age for purposes of ADEA). Further, the fact that plaintiff received positive performance evaluation is immaterial; prior positive performance does not create a factual dispute as to pretext. See Healy v. New York Life Ins. Corp., 869 F.2d 1209, 1220 (3d Cir. 1988). Additionally, plaintiff's personal belief that he should have been rated higher in the RSP is not sufficient, without more, to cast doubt on Boeing's decision. See Martin v. General Electric Corp., 891 F. Supp. 1052, 1057-58 (E.D. Pa. 1995). Nor does the fact that the process was largely subjective render it discriminatory. See Healy, 869 F.2d at 1220.
"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." Fuentes, 32 F.3d at 765, citing Ezold v. Wold, Block, Schorr Solis-Cohen, 983 F.2d 509, 531 and 533 (3d Cir. 1992). This can be a "difficult burden" for a plaintiff. Fuentes, 32 F.3d at 765. Plaintiffs must show, "such weaknesses, implausibilities, inconsistencies, incoherenciesor contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence.'" Fuentes, 32 F.3d at 765, citing Ezold, 983 F.2d at 531. Here, plaintiff has not done so.
The apparent "inconsistency" evidenced by Boeing's retention of employees who are not trained in PVA is explained by Boeing — it was not the responsibility of those employees to perform PVAs, so they were not rated on that skill or retained on that basis. There is no evidence that plaintiff was the only employee qualified to perform PVAs, or that all employees trained to perform PVAs were laid off in favor of younger workers — contrary to Boeing's stated intent to move to that system of supplier assessment.
In summary, plaintiff has not proffered evidence sufficient to permit a factfinder to conclude that Boeing's reasons for his layoff are "unworthy of credence." Boeing is entitled to judgment in its favor as a matter of law. An order follows.
ORDER
AND NOW, this 17th day of November, 2004, defendant The Boeing Company's "Motion for Summary Judgment" is granted and judgment is entered in favor of defendant. A memorandum accompanies this order.