Jeff Bonomo v. The Boeing Company

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1523
___________________________
Jeff Bonomo
lllllllllllllllllllllPlaintiff - Appellant
v.
The Boeing Company
lllllllllllllllllllllDefendant - Appellee
___________________________
No. 22-1531
___________________________
Jeff Bonomo
lllllllllllllllllllllPlaintiff - Appellant
v.
The Boeing Company
lllllllllllllllllllllDefendant - Appellee
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 14, 2022
Filed: March 29, 2023
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Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Jeff Bonomo began working for McDonnell Douglas in 1985. He stayed there
until it merged with The Boeing Company (Boeing) in 1997. In 2017 and 2018,
Bonomo unsuccessfully applied for promotions within Boeing. Both times, the
promotion was given to younger candidates who scored better in the interview. In
2017, the promotion went to an employee aged 33; in 2018, to one aged 34. Bonomo
retired from Boeing on January 1, 2020.
Bonomo alleges that Boeing discriminated against him on the basis of age, in
violation of the Missouri Human Rights Act (MHRA). Bonomo brought two separate
lawsuits, now consolidated, alleging age discrimination in relation to the 2018
opening and a claim for constructive discharge.1 The district court2 granted summary
judgment in favor of Boeing on both claims, holding that Bonomo (1) failed to
demonstrate a material dispute as to whether Boeing’s stated rationale for the hiring
decision was a mere pretext for age discrimination and (2) failed to timely file a
complaint with the Missouri Commission on Human Rights within six months of
when his constructive-discharge claim accrued. We affirm.
I. Background
Given their public availability, we briefly recount the salient facts for this
appeal, and we do so “in the light most favorable to . . . the non-moving party.”
Lombardo v. City of St. Louis, 38 F.4th 684, 686 (8th Cir. 2022).3
1Bonomo also alleged retaliation but does not challenge the grant of summary
judgment as to that claim in this appeal.
2The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern
District of Missouri.
3There are two lower court opinions under review here. See Bonomo v. Boeing
Co., No. 4:21-CV-00411-SEP, 2022 WL 579242 (E.D. Mo. Feb. 25, 2022); Bonomo
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Boeing uses a standard process for internal promotions. First, the hiring
manager posts the position, inviting employees to apply. Then, the most qualified
applicants are interviewed. A panel composed of the hiring manager and other Boeing
employees conducts the interviews; this process usually includes other managers,
directors, or human resources employees. The panel asks all interviewees the same
set of questions. The panelists then generate numerical scores for the applicants.
Bonomo applied for two different promotions, one in 2017 and one in 2018, and was
interviewed for both. He scored poorly in the structured interview both times, and the
promotions went to other applicants.
A. The 2017 Opening
In 2017, Bonomo, then age 62, applied for a promotion to a more senior
management level position. The preferred qualifications for the position included a
master’s degree and significant work experience. Bonomo, who does not have a
master’s degree, did not submit a resume for the position. When a panelist asked
Bonomo about the missing resume, Bonomo wrote back, “I have worked for Boeing
for over 30 years. I didn’t think a resume would say anything more than my work
history already says.” R. Doc. 22, at 4. Five applicants, including Bonomo, were
selected for interviews. Bonomo did not prepare answers to expected interview
questions. Bonomo was interviewed by the hiring manager, then age 53; the acting
director of the program, then age 55; a senior manager, then age 56; and a human
resources employee, then age 57.
Bonomo scored the lowest out of the five interviewees. The employee who
received the promotion, Aaron Boswell, then age 33, received the highest interview
score. The panel’s assessment stated that Bonomo’s responses in the interview were
poor, that he seemed arrogant and entitled, and that they believed he was a less
capable leader than Boswell.
v. Boeing Co., No. 4:19-CV-03394-SEP, 2022 WL 579243 (E.D. Mo. Feb. 25, 2022).
Record citations are to the former case.
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B. The 2018 Opening
In 2018, Bonomo applied for a similar opening with identical requirements and
preferred qualifications. Bonomo was again interviewed. This time, the panel
consisted of the hiring manager for the position, then age 36; a senior manager in the
department, then age 30; and the director of the department, then age 37. The opening
Bonomo had applied for was filled in the interim by Daniel Oetjen, then age 34, who
was chosen for the interim position by the hiring manager. Oetjen had also applied
for the 2017 opening, but he had not been interviewed. Oetjen applied for the 2018
promotion while serving as interim manager and was selected for an interview. Oetjen
has a master’s degree.
Bonomo again did not score well on the interview, receiving a consensus score
of 17.5 out of a maximum of 35. Oetjen substantially outperformed him with a
consensus score of 25.5. The only other candidate interviewed received a consensus
score of 21. The panel stated that Oetjen’s interview demonstrated stronger leadership
skills, more detailed and nuanced answers, and a superior communication style. The
panel agreed that Oetjen had outperformed Bonomo on six of seven factors and tied
with him on the seventh. J.A. at 249 (scoring both Oetjen and Bonomo a “3,” the
average, on “[c]ustomer [f]ocus”). The hiring manager chose to promote Oetjen, the
interim manager, to the position permanently. On the form submitted indicating
Oetjen’s selection, the hiring manager did not write down a reason for his choice but
checked a box labeled “[n]o other factors were considered other than the structured
interview. (check box if applicable).” J.A. at 499. After prompting from the human
resources department, the hiring manager said the selection was based solely on the
strength of Oetjen’s interview. On November 4, 2019, Bonomo sued Boeing in
Missouri state court for age discrimination based on its selection of a younger
candidate to fill the 2018 opening. The state suit was removed to federal court.
C. Termination and Suit
Bonomo sent his manager an email on November 25, 2019, stating: “I’ve
terminated my employment with Boeing as of 01/02/2020. You should receive
paperwork that you will need to fill out. Can you please let me know when you
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receive the termination paperwork.” R. Doc. 22, at 17. Bonomo completed his
termination paperwork on December 2, 2019, and retired following January 1, 2020.
Bonomo filed a second charge of discrimination alleging constructive discharge
based on age with the Missouri Commission on Human Rights on May 28, 2020. The
next year, Bonomo initiated a suit in Missouri state court against Boeing alleging
constructive discharge on February 24, 2021. The state suit was removed to federal
court.
II. Discussion
Bonomo challenges the district court’s grant of summary judgment in favor of
Boeing as to his age-discrimination and constructive-discharge claims. “We review
the district court’s grant of summary judgment de novo, viewing the facts in the light
most favorable to . . . the non-moving party.” Rebouche v. Deere & Co., 786 F.3d
1083, 1086 (8th Cir. 2015); see also Fed. R. Civ. P. 56(a).
A. Discrimination by Failure to Hire
Under the MHRA, it is unlawful for an employer to refuse to hire, to discharge,
or to otherwise discriminate against an individual because of the individual’s age.
Mo. Rev. Stat. § 213.055.1(1)(a). This occurs when the individual’s age was the
“motivating factor”; i.e., when it “actually played a role in the adverse action or
decision and had a determinative influence on the adverse decision or action.”
Id. §§ 213.010(2), (19). This standard requires proof that age was more than a mere
contributing factor in the adverse decision or action and is comparable to the standard
utilized under federal Title VII. Lampley v. Mo. Comm’n on Hum. Rts., 570 S.W.3d
16, 22 (Mo. 2019) (en banc) (“When reviewing cases under the [MHRA], appellate
courts are guided by both Missouri law and any federal employment discrimination
(i.e., Title VII) case law that is consistent with Missouri law.” (cleaned up)).
Bonomo presents no direct evidence of discrimination. A plaintiff who presents
no evidence of direct discrimination must satisfy the McDonnell Douglas burden-
shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973); Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 831 n.5 (8th Cir.
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2020) (acknowledging Missouri courts’ application of McDonnell Douglas in the
context of the MHRA). The framework operates in three steps. The plaintiff must first
prove a prima facie case of age discrimination. McDonnell Douglas, 411 U.S. at 802.
The burden then shifts to the defendant, who must rebut by offering evidence of a
legitimate, nondiscriminatory reason for the hiring decision. Id. The burden then
returns to the plaintiff, who must show that the proffered reason is merely a pretext
for intentional discrimination. Id. at 804. However, because the plaintiff must
eventually prove that he was the victim of intentional discrimination, “the plaintiff
must do more than simply create a factual dispute as to the issue of pretext; he must
offer sufficient evidence for a reasonable trier of fact to infer discrimination.”
Canning v. Creighton Univ., 995 F.3d 603, 612 (8th Cir. 2021) (cleaned up); see also
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) (“It is not enough, in other
words, to dis believe the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.” (emphasis in original)).
Boeing does not dispute the existence of a prima facie case. Boeing contends
that it chose to promote Oetjen instead of Bonomo on the nondiscriminatory bases of
Bonomo’s poor interview scores, weaker interview answers, and the less favorable
impressions of his interviewers. The district court considered seven arguments
Bonomo made to demonstrate Boeing’s stated reasons were pretextual. Bonomo
reiterates those arguments on appeal, contending that the district court failed to
consider the totality of the circumstances and failed to view the facts in the light most
favorable to Bonomo, the non-moving party. We consider each argument briefly in
turn.
First, Bonomo argues that Boeing failed to follow its own policy. See Lake v.
Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (identifying a failure to
follow its own policies as one possible method of showing employer’s pretext).
Bonomo highlights language in the Boeing Enterprise Staffing Handbook, which
implies that more than just the interview is to be considered in making hiring
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decisions.4 However, Boeing provides an express instruction to hiring managers that
they are only “encouraged” to consider factors beyond the structured interview.5 In
addition, Boeing’s standardized interview booklet provides the hiring manager with
a checkbox option that says “[n]o other factors were considered than the structured
interview.” J.A. at 499.6 The booklet instructs hiring managers to check the box “if
applicable,” i.e., if they relied exclusively on the structured interview. Id.
On this record, no reasonable factfinder could conclude that Boeing violated
its own policies in considering only the structured interview. Boeing provided hiring
managers a checkbox to indicate that they considered only the structured interview,
and the hiring manager here checked the box. Bonomo argues that we must construe
the record in the light most favorable to him. True, the summary judgment standard
does require that. See Rebouche, 786 F.3d at 1086. But it does not require finding a
contradiction between two provisions if the record as a whole could not sustain that
conclusion. Indeed, the record demonstrates that what Bonomo cites is a general
policy, superseded with appropriate authority by a more specific, nuanced policy. As
such, Bonomo’s first argument fails.
4“When making the final hiring decision consider the structured-interview
rating and job-relevant work history, job-relevant information provided by the
candidate, education, technical knowledge, performance management, corrective
action, and other assessments.” J.A. at 187–88. The Boeing Enterprise Staffing
Handbook is a comprehensive tome containing over a hundred pages of minutia. See
J.A. at 174–78. The handbook also notes that “Global Staffing has been delegated
sole authority to manage and deliver staffing services by several [Boeing] governance
documents,” and that the “handbook is designed to provide a high level overview of
policies.” R. Doc. 23-1, at 10–11.
5“When making a selection decision, the hiring manager is encouraged to
consider other factors beyond the structured interview, such as unique skills,
education, certification, capabilities, experiences, approved assessments.” J.A. at 131.
(emphasis omitted).
6The standardized interview booklet is prepared by Global Staffing. R. Doc. 23-
1, at 10.
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Second, Bonomo argues that Boeing has a pattern of hiring younger employees.
Bonomo cites his own non-promotions in 2017 and 2018, as well as the interim hiring
of Oetjen, as evidence. Bonomo’s evidence falls short of the standard required to
show a pattern of age discrimination. See, e.g., Wittenburg v. Am. Exp. Fin. Advisors,
Inc., 464 F.3d 831, 837–38 (8th Cir. 2006) (affirming summary judgment against the
plaintiff even when the defendant fired eight of its oldest employees, gave four of the
remaining five oldest employees low performance ratings that set them up for
termination next year, and the record included statements by a corporate
decisionmaker arguably expressing a preference for younger employees).
Third, Bonomo argues that Boeing’s use of the interview alone is evidence of
pretext. This is incorrect. Id. at 839 (“[T]he presence of subjectivity in employee
evaluations is itself not a grounds for challenging those evaluations as
discriminatory.” (internal quotation marks omitted)). Instead, Bonomo must point to
some evidence to support his allegation that the low interview scores are pretext for
intentional age discrimination. Bonomo fails to do so. The interviewers provide
specific examples of Bonomo’s negatives and Oetjen’s positives.7 The interviewers
agree that Bonomo failed to provide specific answers to questions. Some thought
7Although the interview records are handwritten and difficult to read, the
interviewers were deposed or provided declarations about the interview records and
their impressions of Bonomo and Oetjen in 2018. See Declaration of James Dewees,
J.A. at 218–27 (providing a detailed analysis of Bonomo and Oetjen’s interviews);
Deposition of Mark Sears, J.A. at 444 (“[Bonomo] did not articulate [his experience]
in a way that demonstrated the [] communication style or the leadership that we
expect of a senior manager.”); Declaration of Amy Amin, J.A. at 659–62 (describing
Bonomo’s answers as insufficiently specific, while lauding Oetjen’s answers,
consistent with her interview record). Their testimony aligns with related record
evidence from the 2017 interviewers. See Declaration of Catherine Buehrle, J.A. at
253 (“I had the impression that Bonomo assumed the panelists knew him and knew
his experiences and assumed that he would be given the position as a result.”);
Declaration of John Harig, J.A. at 406–08 (stating Bonomo did not interview well,
that it seemed like “he felt he would get the job”); Deposition of Randy Illum, J.A.
at 507 (“I do remember Mr. Bonomo’s interview. There seemed to be some arrogance
about his interview.”).
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Bonomo seemed entitled and arrogant; others thought that Bonomo lacked desired
leadership skills. The 2018 interviewers preferred Oetjen’s communication style.
None of Bonomo’s interviewers—in either 2017 or 2018—preferred him to the
candidates who were hired. Bonomo bears the burden of providing a plausible
alternative perspective. Because he has not done so, there is no genuine dispute of
material fact as to whether the subjectivity of the interview was used to create a
pretext for intentional discrimination.
Fourth, Bonomo argues that a reasonable jury could conclude that Boeing’s
exclusive reliance on the structured interviews is “wholly without merit or obviously
contrived.” Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 801 (8th Cir. 1994).
Bonomo provides little to justify this assertion. The structured interviews are ordinary
practice for Boeing, and it is patently unsurprising that interview performance is a
substantial factor in a company’s promotion decisions. Dismissing reliance on
interview performance as being “wholly without merit or obviously contrived”
requires evidence reaching that high bar. This record lacks such evidence.
Fifth, Bonomo argues that the composition of the 2018 panel shows pretext.
The 2018 panel included the hiring manager and two individuals that the hiring
manager knew well. All three panelists were much younger than Bonomo. Bonomo
asks the court to infer from this that Boeing formed the younger panel to discriminate
against him on the basis of age. But the age of the panelists alone is insufficient to
show age animus. See McKay v. U.S. Dep’t of Transp., 340 F.3d 695, 700 (8th Cir.
2003) (holding that a panel’s composition alone is insufficient to demonstrate pretext
absent some evidence sufficient to infer it was composed with a discriminatory
intent). Bonomo provides no reason apart from the panel’s age to infer Boeing’s
intentional discrimination.
Sixth, Bonomo argues that because Oetjen was unqualified for the 2017
position, he was objectively less well qualified than Bonomo for the 2018 opening.
Were this the case, Bonomo could potentially make a compelling case, as “[i]t is
‘common business practice to pick the best qualified candidate for promotion. When
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that is not done, a reasonable inference arises that the employment decision was based
on something other than the relative qualifications of the applicant.’” Cox v. First
Nat’l Bank, 792 F.3d 936, 939 (8th Cir. 2015) (quoting McCullough v. Real Foods,
Inc., 140 F.3d 1123, 1129 (8th Cir. 1998)). However, the plaintiff must demonstrate
that the selected applicant is actually less qualified. Id. The role of the court is only
to ensure that Bonomo was not discriminated against on account of his age; we do not
“sit as [a] super-personnel department[] reviewing the wisdom or fairness of the
business judgments made by [Boeing].” Cronquist v. City of Minneapolis, 237 F.3d
920, 928 (8th Cir. 2001).
Bonomo has not presented sufficient evidence to enable a factfinder to
conclude that Oetjen was an objectively less well-qualified candidate than him for the
2018 opening. Oetjen scored a 9 on a pre-interview worksheet based on his 2017
resume, and Bonomo scored a 13. Boswell, who received the 2017 job, scored a 14.
This range is not so distant as to demonstrate Oetjen was objectively less well
qualified in 2018 more than a year later. Two other facts clearly support the
conclusion that no reasonable factfinder could decide Oetjen was objectively less well
qualified: Oetjen performed much better in the interview and had a master’s degree,
which was a preferred qualification for the job. Bonomo does not have a master’s
degree, and the interviewers reached a consensus that Bonomo interviewed poorly.
Seventh, Bonomo argues that the initial omission of a written reason for
Oetjen’s selection on the hiring form is evidence of pretext. Bonomo is correct that
the hiring form initially contained no written reason for the selection; after prompting,
the hiring manager wrote that it was because of the interview. However, the panelists
had all previously indicated that the interview was the reason for Oetjen’s hiring. The
omission of a written reason on one page of a particular form, when the reason given
elsewhere on the same form was eventually reiterated, does not give rise to an
inference of pretext.
Bonomo argues that the district court incorrectly weighed the totality of these
allegations. Although each of these factors individually might not be sufficient to
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survive summary judgment, Bonomo argues that the recitation of all of them is
sufficient to allow a reasonable factfinder to find that Boeing’s proffered reason was
pretext intended to hide its intentional discrimination against Bonomo on the basis
of his age.
Bonomo is correct about the law and the nature of summary judgment.
Evaluation of a summary-judgment motion requires assessing the proffered evidence
in the light most favorable to the non-moving party. If the evidence, so viewed,
establishes that material facts remain to be determined in order to conclude whether
the non-moving party is entitled to relief, summary judgment should be denied. See
Fed. R. Civ. P. 56(a). However, if no genuine dispute of a material fact remains, and
the record facts viewed in the light most favorable to the non-moving party do not
establish entitlement to relief, summary judgment must be granted. See Edwards v.
Hiland Roberts Dairy, Co., 860 F.3d 1121, 1125 (8th Cir. 2017); Fed. R. Civ. P. 56(a)
(using mandatory language).
Bonomo alleges that (1) he was 30 years older than Oetjen; (2) the hiring
manager and committee members were around Oetjen’s age; (3) the interview alone
was the justification for the hiring; (4) hiring on the basis of an interview may violate
one Boeing policy; (5) the hiring manager initially wrote no reason for Oetjen’s hiring
on one page of a form; (6) the 2017 and 2018 hirings are evidence of a pattern of
discrimination; and (7) Oetjen was objectively less well-qualified than Bonomo.
Viewed in their totality, Bonomo argues that these facts could lead a reasonable
factfinder to find in Bonomo’s favor at trial.
We disagree. The undisputed facts, viewed in the light most favorable to
Bonomo and considered in their totality, prevent a reasonable factfinder from finding
in Bonomo’s favor. The 2017 panel was made up of panelists close to Bonomo’s age
who provided similar reasons to the 2018 panel for refusing to hire Bonomo. There
were objective components to the process, including an initial screening and a
preference for candidates with a master’s degree. The panelists provided specific and
consistent feedback on Bonomo’s negatives and Oetjen’s positives, as they had with
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Bonomo and Boswell in 2017. Bonomo received the lowest score of any applicant in
2017. He again received the lowest score—substantially lower than Oetjen—in 2018.
Rather than forbid hiring managers from relying only on the structured interviews,
Boeing placed a checkbox for hiring managers to use if they hire exclusively on the
basis of the interview. The hiring manager in 2018 checked the box. The 2018
panelists all agreed, on the basis of the interview alone, that Oetjen was the preferred
candidate. There is no record evidence of a pattern of discrimination at Boeing, and
Bonomo has pointed to only the two hirings in 2017 and 2018 in an attempt to
establish one. Oetjen has a master’s degree, a preferred qualification for the 2018 job,
and Bonomo does not. Bonomo did not prepare specific answers for the 2018
interview, despite knowing the questions to be asked.
We conclude that Bonomo has failed to rebut the non-age based, legitimate
reasons offered by Boeing for its choice to hire Oetjen instead of him. The district
court’s grant of summary judgment is affirmed.
B. Constructive Discharge
Bonomo alleges that the district court erred in dismissing his constructive-
discharge claim as untimely. We disagree. The MHRA requires “[a]s a jurisdictional
condition precedent” that an aggrieved individual file a complaint with the Missouri
Commission on Human Rights within 180 days of the alleged act of discrimination.
Mo. Rev. Stat. § 213.075.1. Failure to timely file may be raised as a complete defense.
Id. As such, we apply the rule from Green v. Brennan: “[A] constructive-discharge
claim accrues—and the limitations period begins to run—when the employee gives
notice of his resignation, not on the effective date of that resignation.” 578 U.S. 547,
564 (2016).
Bonomo sent an email to his manager on November 25, 2019, informing him,
“I’ve terminated my employment with Boeing as of 01/02/2020,” and asking that his
manager let him know when he receives the termination paperwork. R. Doc. 22, at 17.
Bonomo filed his termination paperwork on December 2, 2019. Bonomo filed his
complaint with the Missouri Commission on Human Rights on May 28, 2020.
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Bonomo alleges that his termination paperwork started the clock, not his email.
Bonomo is incorrect. “If an employee gives ‘two weeks’ notice’—telling his
employer he intends to leave after two more weeks of employment—the limitations
period begins to run on the day he tells his employer, not his last day at work.” Green,
578 U.S. at 564. Bonomo gave his employer a little more than five weeks’ notice. But
his claim still accrued then—on the day he gave notice, not the day he filed the
paperwork. Because May 28, 2020, falls 185 days after November 25, 2019,
Bonomo’s complaint was untimely and thus barred. We affirm the district court’s
grant of summary judgment in favor of Boeing on the constructive-discharge claim.
III. Conclusion
Accordingly, we affirm.
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