Court Rules Employee Shed Doubt on RIF Selection Reasons

April 20, 2006 ( - The 3rd Circuit US Court of Appeals has ruled that a district court erred in granting summary judgment to The Boeing Co. in an age discrimination lawsuit concerning a reduction-in-force (RIF) since the employee shed doubt on the reasons the company used to select workers to be eliminated.

In Tomasso v. The Boeing Co., Judge Edward Becker referred to a previous 3 rd Circuit opinion which determined a plaintiff need not discredit all of the employer’s offered reasons for selection in RIF situations, but only had to cast “substantial doubt” on some of the reasons.

According to the opinion, prior to this RIF, Boeing had used a method of selection that guaranteed employees who had been in service a certain amount of time would not lose their positions.   During this RIF, Boeing instead used employee evaluations performed by their supervisors.   The court noted that all employees who lost their jobs in this RIF were over 40.

Specifically, the evaluation of Joseph Tomasso included statements his supervisor claimed he made regarding not wanting to participate in a new quality assurance project and not wanting to share technical knowledge with coworkers.   Tomasso, however, denied ever making such statements.   The appellate court said that this casts doubt on Boeing’s reasons for selection in the RIF.   The court also noted that “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.”


In 2001, after working for Boeing nearly 40 years, Tomasso was given notice of the RIF.   He was offered a job as an hourly worker in another department, but felt this was equivalent to “going back 40 years and starting over.”   After his layoff he sued Boeing under the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA), and the Employee Retirement Income Security Act (ERISA).

The District Court granted summary judgment in favor of Boeing, saying Tomasso did not provide sufficient evidence to show that Boeing’s reasons for his lay off were pretextual.   The appellate court reversed this ruling on the ADEA and PHRA claims saying has shown sufficient implausibilities and inconsistencies in Boeing’s primary rationales and “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.”

In a dissent to the 2-1 ruling, Judge Jane Roth said that during an RIF a company is often forced to terminate the worst of the best.   Due to this, she said, the margin of distinction between terminated and reduced employee’s shrinks and the employer’s margin of appreciation to make a good faith mistake in evaluating talent should be respected.   Roth said Tomasso did not present evidence that contradicted his supervisor’s reasoning that his attitude and teamwork lagged behind his peers.

The opinion is  here .