• Plaintiffs Establish Pretext during a Reduction in Force
  • October 5, 2009 | Author: Tara L. Ferguson
  • Law Firm: Miller & Martin PLLC - Nashville Office
  • The Ninth Circuit recently held that two former employees established pretext for their gender discrimination claim after they were terminated in a reduction in force ("RIF").  In EEOC v. The Boeing Company, 2009 W: 2501837 (9th Cir.), two female employees alleged that Boeing used a RIF to terminate them because of their gender.  Boeing contended that they were properly terminated because they scored low on performance evaluations.  The Ninth Circuit found that Boeing's reason for termination was not consistent with the evidence and found that the employees could proceed to trial.  Importantly, the Court relied heavily on testimony of plaintiffs' co-workers and managers that they were solid performers and were treated unfairly when it denied Boeing's motion for summary judgment.

    First Employee, Antonia Castron:

    Antonia Castron worked in Boeing's Electrical Engineering Department, but requested a transfer to a different department because of repeated negative comments about women by her supervisor.  Specifically, her supervisor stated that he "didn't want any more women and that women were not worth a sh*t," that "he didn't have good luck with females and they hadn't been around long enough for his satisfaction," and that he "just didn't have time" to train women.  After her transfer request was denied numerous times, her supervisor proposed transferring Castron to a different department.  No transfer of that type had occurred in over four (4) years.  Castron was hesitant due to an upcoming RIF, but accepted the transfer after being assured that she'd be given ample time to learn her new position.  Despite these assurances, however, she was evaluated a few months later as part of the RIF, received low scores, and was terminated.  Her performance scores were based only on her performance as a trainee, not her entire body of work for Boeing, even though past performance scores for transfer trainees typically included work in previous positions for the company. 

    Based on this evidence, the Ninth Circuit found that Castron presented sufficient evidence of pretext.  The Court held that "a jury might conclude that [her supervisor] deliberately set Castron up to fail because of her sex or of her invocation of Title VII rights."  (Id. at *5.)  The Court specifically held that there was sufficient evidence that a jury could find that her poor RIF evaluation scores were pretextual.  Several of Castron's co-workers testified that her skills merited higher scores and that scoring her based on only two (2) months' work as a trainee was unfair.  The Court held that the "positive evaluations of Castron's performance, both by her co-workers and by other managers, critically undermine the credibility of her official evaluation in a manner relevant to determining the existence of pretext."  (Id. at *6.)  In light of the co-workers testimony, Castron had presented sufficient evidence of pretext to take her claims to a jury.

    Second Employee, Renee Wrede:

    Renee Wrede was a long-term employee who was transferred to a new department after a complaint she had made about sexual harassment was substantiated.  In her new department, she was initially given a positive performance evaluation.  However, within a year, Boeing conducted a RIF and Wrede's performance evaluations became increasingly negative for no apparent reason.  Wrede was ultimately terminated.  While some men in her position scored lower than she did, none were terminated and some were given assistance to transfer to other positions to avoid being fired.   To support her claim of pretext, Wrede submitted statements from her co-workers and several managers praising her capabilities and job performance.  The most helpful statement came from a co-worker who had scored very high in the RIF and stated that Wrede was better than many of the other people in their position and that she produced "stellar" work.

    The Ninth Circuit held that Wrede had also presented sufficient evidence of pretext and could proceed to trial.  The Court held that because her supervisor did not affirmatively hire or promote Wrede, even though he did give her a positive performance review, Boeing could not assert a lack of bias defense where the supervisor lowered her scores over time.  The Court also gave great weight to Wrede's statements from co-workers and managers, and found that these statements were ample evidence that the RIF evaluations were "not only inaccurate, but unworthy of credence."  (Id. at *8.)  Finally, the evidence demonstrating that male employees were offered transfers or assistance while Wrede was not was also evidence of pretext.  As such, Wrede could proceed to trial.

    Lesson Learned from EEOC v. Boeing:

    It goes without saying that all employees should be treated equally and that policies should be applied consistently to all employees.  EEOC v. Boeing is an excellent example of the types of evidence that courts will consider when determining if policies are actually applied equally.  Courts can consider the testimony of co-workers and managers to evaluate whether there is a triable issue of material fact as to an employee's performance review.  In reality, this makes it substantially easier for plaintiffs to go to trial in wrongful termination claims.  A co-worker's subjective opinion of the plaintiff's work performance may be sufficient to get past summary judgment.  In today's climate, RIF's are unfortunately commonplace.  Employers need to be careful when evaluating employees; they cannot rely on low performance scores alone to justify termination.  Courts are looking further at how these scores were put together to ensure that no potentially discriminatory motive was present.