Apsley v. The Boeing Company, 691 F.3d 1184

Boeing sold the Wichita Division to Spirit in June 2005 and terminated its workforce of about 10,671 employees the day of closing.
Spirit rehired 8,354 employees the next day; older workers were rehired at slightly lower overall rates than younger workers.
Employees alleged age discrimination under ADEA, ERISA, Title VII, and ADA, plus declaratory and other claims; district court granted summary judgment on several claims and certified a Rule 54(b) judgment for appeal.
Boeing structured the divestiture to reduce labor costs, with anticipated savings from cheaper, more flexible labor; the Wichita workforce was older on average than typical, influencing pension cost discussions.
Management used a seven-factor, age-neutral evaluation to select Spirit hires; internal reviews noted adverse effects on minorities, women, and older workers, but no adjustments were made based on age.
The district court held that plaintiffs could not prove a pattern or practice of discrimination and dismissed the ERISA, Title VII, and ADA retaliation claims; only individual ADEA claims remained for trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Pattern or practice under ADEA	Employees contend statistically and contextually that age discrimination was the division’s standard practice.	Statistics show no widespread practice; evidence reflects isolated acts; no company-wide policy.	No pattern or practice established; summary judgment affirmed.
Disparate impact under ADEA	Seven-factor evaluation caused a significant adverse impact on older workers.	Disparities were small in absolute terms; not a substantial, significant impact.	Disparate impact not shown; summary judgment upheld.
ERISA § 510 interference with pension rights	Sale and reorganization aimed to reduce pension obligations, injuring employees’ rights.	Plant sale and restructuring had legitimate business motives; any savings were incidental, not targeted.	No evidence of a determinative intent to interfere with pension rights; § 510 not violated.
ADA/Title VII retaliation claims	Retaliation for discrimination complaints or disability rights exercised during rehire process.	Administrative exhaustion not satisfied for retaliation claims; specific EEOC charges did not put companies on notice.	No exhaustion for retaliation claims; claims dismissed.

Hazelwood Sch. Dist. v. United States, 433 F.2d 299 (1977) (statistical disparities can indicate pattern or practice when contextualized)
Teamsters v. United States, 431 U.S. 324 (1977) (pattern or practice framework; two-stage proof)
Castaneda v. Partida, 430 U.S. 482 (1977) (two or three standard deviations linked to statistical significance)
Pitre v. W. Elec. Co., 843 F.2d 1262 (10th Cir. 1988) (statistics combined with other evidence can show pattern or practice)
Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001) (prima facie pattern or practice framework; burden-shifting)
Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006) (statistical evidence context in discrimination analysis)
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) (reasonable factors other than age in disparate impact contexts)
Millsap v. McDonnell Douglas Corp., 162 F. Supp. 2d 1262 (N.D. Okla. 2001) (ERISA § 510 plant closure analysis; determinative motive)
Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir. 1987) (ERISA § 510 burden-shifting framework)
EEOC v. Sandia Corp., 639 F.2d 600 (10th Cir. 1980) (pattern or practice standard in the Tenth Circuit)