Two Boeing employees were laid off in a reduction in force (RIF), on the basis that they received low scores in the reduction in force assessments utilized to determine the order of lay offs.? ?The Ninth Circuit reversed summary judgment ?for ?Boeing, ?and? ruled ?that ?sufficient evidence existed that Boeing?s reasons for lay off were a pretext for gender discrimination.

The first plaintiff, Antonia Castron, was employed as liaison engineer in the Electrical Engineering Department.? ?During that time, her immediate supervisor made many gender related remarks that obviously reflected bias against women.?? Plaintiff requested she be transferred to the Final Assembly Group because the sexual harassment was preventing her from doing her job. ?The supervisor refused to transfer her to that group, and instead, transferred her to the Structures- Mod Department that? required? different? skills? from? what? plaintiff had developed in her existing position.

Castron? ?agreed? ?to?? the? ?transfer,?? despite? ?her concerns that the new supervisor had also made gender biased comments, and because the transfer would leave her vulnerable to lay off. ?She agreed only after it was promised that she would not be laid off in the anticipated RIF.?? Just two months after plaintiff?s transfer, Boeing conducted a RIF in which employees with the lowest scores were eligible for termination.?? ?Despite the former supervisor?s past assurances, plaintiff was subject to the RIF, received low scores, and was ultimately terminated as a result.

The second plaintiff, Renee Wrede, worked at the Apache helicopter manufacturing assembly installation support group. ?Although she generally received?? positive?? evaluations,?? her?? supervisor placed her on a ?performance improvement plan,? which he testified was intended to improve the two areas in which she received the lowest evaluation scores.?? In the April 2002 RIF exercise, Wrede scored thirtieth out of thirty-seven employees in the same skill code.?? In July 2002, a second RIF exercise was conducted, and plaintiff survived again.?? In October 2002, a third assessment was completed and plaintiff was laid off, despite the fact that men who scored lower than plaintiff were not.?? ?Additional circumstantial evidence was presented that gender was a factor in the decision to lay off plaintiff.

Applying the traditional McDonnell Douglas shifting burden analysis, the Court found that sufficient? evidence? existed? to? infer? pretext? for both plaintiffs.??? ?Significantly, the Court considered testimony about plaintiffs? ability by other managers and co-workers.?? Adopting the rule from the Tenth Circuit, the Court ruled: ?We therefore adopt the Tenth Circuit?s view that ?co- workers? assessment[s]? of a plaintiff?s work should? ?be? ?considered? ?because? ?they? ?can? ?be ?clearly probative of pretext.??

The Ninth Circuit also ruled that the ?same actor inference? does not apply, despite the fact that the supervisor who ultimately selected plaintiff for layoff had previously given her passing grades. ?The Court ruled that the inference does not apply to the same degree where a supervisor, who did not hire or promote, gives evaluations that decrease over time.

EEOC v. Boeing, 577 F.3d 1044 (9th Cir. August 12, 2009) (Hawkins, Berzon, Clifton).