At the time the terrorists attacked in 2001, Zuniga was one of 23 material management analysts at Boeing's plant in Tulsa. During its peak years of aerospace and defense contracts, the plant had 5,000 employees. Gradually its workforce had dwindled to about 1,000. In the uncertain months following 9/11, the company announced a further 30 percent layoff nationwide. In Tulsa, managers set in motion an Employment Reduction Process (ERP). You would not believe Boeing's ERP if I described it to you, so I will not describe it.
In the end, the ERP decreed that seven of the 23 analysts would have to go. All but Krista Harris, 30, were 40 years of age or older. Thus they enjoyed a substantial degree of job protection provided by the Discrimination in Employment Act of 1967. The act makes it unlawful for a covered employer to discriminate against employees over the age of 40 by reason of their age.
Personnel management in a huge corporation is a mesmerizing process. Reading the record in this case, one soon begins to talk funny. At Boeing, before they fire anyone in a RIF, managers initiate the ERP. Most of the ERP elements are highly subjective. Sixty percent of a subject's assessment, for example, will depend upon his rating for adaptability, flexibility, integrity and ability to work with people. Factors comprising the other 40 percent are not quite so easily susceptible to definitive calibration.
Zuniga did not do well. His manager noted, for example, that he "failed to perform transactions necessary to maintain accurate inventory." Also, "refused to utilize tools which could possibly enhance his job performance." And he "failed to be proactive in his communications with customers."
In other appraisals, such as Boeing's Performance Evaluation form (PE), he looked a little better ("exceeds normal requirements"), but the decisive score sheet ranked him 21st out of the 23 with a score of 64.40. Six months later Zuniga was fired. He was then 62 years old. He had been with Boeing for 21 years.
Zuniga sued Boeing under the federal act, but the company won in U.S. District Court on a motion for summary judgment. Then a three-judge panel of the Tenth Circuit reversed. Judge John C. Porfilio and two colleagues were not much impressed by Boeing's defense. Without bothering to hear oral argument, they sent the case down for a jury trial. Porfilio quoted from a case involving an employer's "dissembling" and "dishonesty." He remarked that twice a Boeing executive merely "claimed" to have acted impartially. The company's conduct might not establish a charge of age discrimination, but it surely "could cause a reasonable trier of fact to raise an eyebrow."
The company paints the picture quite differently. In its petition to the Supreme Court, it contends that in many instances, "reliance on subjective employment criteria is not merely permissible, but, in fact, is unavoidable." The company points to a case in the 11th Circuit five years ago: "It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the ability to rely on important criteria in its employment decisions merely because those criteria are capable only of subjective evaluation. ... To phrase it differently, subjective reasons are not the red-headed stepchildren of proffered nondiscriminatory explanations for employment decisions."
The Supreme Court always is reluctant to hear cases that have not been finally decided on their merits in the lower courts. Boeing may well have to defend its PE and ERP before an Oklahoma jury. If so, a number of intangible elements will come into play — Boeing's reputation in the Tulsa community, Zuniga's demeanor as a plaintiff, the jury's collective temper at trial. We're talking of elements at least as immeasurable as PE and ERP.
(Letters to Mr. Kilpatrick should be sent by e-mail to email@example.com.)
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