United States District Court, E.D. Pennsylvania
In claiming his employer discharged him based on his age, the former employee must establish, among other facts, that his employer replaced him with someone sufficiently younger to support an inference of an employer's discriminatory animus. Further, an employment action taken after a series of progressive written discipline steps and breach of a "last chance agreement" overcomes unsupported and subjective opinion assertions that the proffered grounds for discharge were a pretext for age discrimination. Absent a showing of genuine issues of material fact in opposition to an employer's motion for summary judgment, we are obliged to enter judgment dismissing the age discrimination case as a matter of law.
Plaintiff William Toy ("Toy") failed to meet his burden of establishing a prima facie case of discrimination; he failed to point to any evidence that his former employer, The Boeing Company ("Boeing") replaced him with an employee sufficiently younger to support an inference of discriminatory animus. Summary judgment is properly granted in Boeing's favor for this reason alone. Even if Toy established a prima facie case, he failed to meet his burden to demonstrate that Boeing's proffered rationale for his termination is a pretext for age discrimination. Boeing terminated Toy after a series of progressive discipline resulting from mistakes and defects in his job performance. When those performance issues resulted in termination, Toy's union representative negotiated with Boeing, and it agreed, to extend a "last chance agreement" to Toy and reinstated his employment. Boeing terminated Toy only when yet another performance issue occurred after the "last chance agreement." Toy fails to provide evidence from which a factfinder could reasonably infer that Boeing's proffered justification is merely a pretext for discrimination.
I. Undisputed Factual Background
The material facts are largely undisputed. Toy began working for Boeing in 1991 as a sheet metal assembler. Boeing's SOF at ¶10. In 1993, he became a welder and, in 1997, Toy transitioned to the position of composite fabricator. Id. at ¶11.
A. Toy's workmanship issues in 2010
Beginning in 2010, Toy's supervisors began finding "significant" defects in the workmanship of the parts he had constructed. Id. at ¶17. In July 2010, Boeing management implemented an "Employee Corrective Action Memo" ("CAM") for Toy to address the workmanship issue. Id. at ¶18. The July 2010 CAM resulted in a written warning. Id. at ¶21. Toy signed the July 2010 CAM. Id.
In October 2010, Boeing learned Toy made an improper cut on a ply and applied an unauthorized patch to cover it. Id. at ¶22. Boeing discovered the defect and placed a "hold tag" on the part and put it in a bag. Id. at ¶23. Toy later removed the part from the bag, removed the unauthorized patch, and threw away the patch. Id. Toy admitted to this conduct and conceded that it was wrong. Id. This incident resulted in another CAM with Toy receiving a three day suspension pursuant to Boeing's progressive discipline process. Id. at ¶¶24-25. Toy signed the October CAM. Id. at ¶23. Toy had no other workmanship problems for a period often months after the October 2010 incident. Id. at ¶26. As a result, the July and October 2010 CAMs were "wiped clean and restarted" according to Boeing policy. Id.
There is no evidence in either the July or October 2010 CAMs, or any other evidence cited by Toy, that he complained of any age-based animus with regard to the 2010 disciplinary measures. Appendix at 164a, 166a, 168a. In response to Boeing's SOF, Toy denied any defect in his work and, citing only to his own Declaration, asserted that he "always performed the duties of his job in a workmanlike manner and according to the instructions and directions provided." Toy SOF at ¶¶17-19, 21.
B. Toy's workmanship issues in December 2011 - January 2012
There is no evidence in the record of any issues regarding Toy's workmanship from October 2010 to December 2011. On December 5, 2011, after investigation by Boeing's human resources department, Boeing issued a CAM to Toy consisting of a written warning for using the wrong type of potting compound on a part. Boeing SOF at ¶¶28-34. Toy signed the December 5, 2011 CAM. Id. at ¶28. Later in December 2011, Boeing learned of a defect in another part made by Toy. Id. at ¶35. After investigation by Boeing's human resources department, Boeing issued another CAM dated December 19, 2011, this time imposing a one day suspension from work without pay. Id. at ¶37-40. Toy signed the December 19, 2011 CAM. Id. at ¶40.
In early January 2012, Boeing learned of a defect relating to an aircraft skin part manufactured by Toy on December 23, 2011. Id. at ¶42. After investigation by Boeing's human resources department, Boeing issued a CAM dated January 26, 2012, suspending Toy from work for three (3) days without pay. Id. at ¶¶43-45. During the investigation, Toy spoke with Dorothy Rush of Boeing's human resources department. Id. at ¶46. Toy told Rush that he believed that an unclean tool, and not his workmanship, caused the defect. Id. at ¶47. It is undisputed that Toy did not report to Rush that he believed to be the target of discrimination because of his age or that he received disciplined because of age. Id. at ¶48.
C. February 2012 and "Last Chance Agreement"
As of early February 2012, three CAMs within approximately two months were issued to Toy: December 5, 2011 (written warning); December 19, 2011 (one day suspension); and January 26, 2012 (three day suspension without pay). Appendix at 170a, 202a, 212a; Boeing SOF at ¶¶28, 40, 45. Upon return to work following his three day suspension, Boeing moved Toy to a "less-critical" and "slower-pace[d]" second shift in the "V-22 area" of the Boeing plant. Boeing SOF at ¶52. Boeing hoped that the move to a "slower pace of work" might assist Toy in "paying attention to his workmanship." Id.
On February 15, 2012, Toy used the wrong tool on a job causing plies to be re-cut and reworked. Id. at ¶56. Toy explained to a Boeing manager that he had been given the wrong "kit" by the "lead man." Id. at ¶57. Under Boeing's "work rules, " the responsibility to check instructions and verify use of the correct kit before starting a job remained with Toy. Id. at ¶¶57-58, 62. Boeing issued a CAM on February 29, 2012. Id. at ¶¶60-63. Under Boeing's progressive discipline process, the February 29, 2012 CAM discharged Toy from Boeing. Id. Toy refused to sign the February 29, 2012 CAM. Appendix at 264a.
Toy's union grieved his discharge. Boeing SOF at 166. Rather than going through a "Step 4" grievance proceeding, also called a "Discharge Board of Review" where Boeing management and union leadership together review the basis of an employee's dismissal, the union requested that Boeing provide Toy with a "Reinstatement and Settlement Agreement, " commonly referred to as a "Last Chance Agreement." Id. at ¶67-68. Boeing agreed to the union's proposal, and Toy, his union representative, and Boeing all signed the ...