Visit us at www.lacba.org
MARCH 2004, VOL.27, NO.1 / $3.00
Los Angeles lawyers EARN MCLE CREDIT
Marcellus A. McRae and
Last Year’s
Joanie L. Roeschlein
Developments
analyze summary
judgment law
in Legal
in employment Ethics
discrimination cases page 30
page 22
Challenge to
Redevelopment
Powers
Proof and page 12
Pretext Secured
Transactions
in Mexico
page 19
Fact Finding
on the Internet
page 40
By Marcellus A. McRae and Joanie L. Roeschlein
Proof and
Reeves provides some clarification of the burden-
shifting formula in employment discrimination lawsuits
I
t has been almost four years since the U.S. Supreme Court held was not the cause of [the] employment action….”3 Under the Supreme
that an employee’s discrimination claim may reach a jury if the Court’s holding in McDonnell Douglas, once the defendant meets
employee can offer proof undermining the company’s stated rea- this burden of production, the plaintiff bears the burden of demon-
sons for an adverse employment action—even without additional strating that the reasons proffered by the defendant are pretextual;
evidence of discrimination. Yet, the decision in Reeves v. Sanderson that they are “in fact a coverup for a racially discriminatory reason.”4
Plumbing Products, Inc.1 has left courts struggling to discern the If the plaintiff shows that the defendant employer’s proffered legiti-
precise factual formulas required for a plaintiff to survive summary mate nondiscriminatory reasons are pretextual, the court must deny
judgment. Lawyers representing employers should pay particular summary judgment.5 If, however, the plaintiff cannot establish pre-
attention to how Reeves clarifies the burden a plaintiff must meet to text, the defendant must prevail.
get a claim before a jury. Subsequent Supreme Court opinions attempted to clarify the
Reeves actually marked the end of a long and arduous journey that McDonnell Douglas burden-shifting framework. First, in 1981, in
began in 1973 with the Supreme Court’s decision in McDonnell Texas Department of Community Affairs v. Burdine,6 the Court revis-
Douglas Corp. v. Green,2 which established the burden-shifting ana- ited the issue of how to allocate burdens in disparate treatment cases.
lytical framework to be used by trial courts in adjudicating individual In Burdine, the trial court ruled that the burden on the defendant-
disparate treatment cases. According to McDonnell Douglas, once a employer to set forth a legitimate nondiscriminatory reason for its
plaintiff has provided evidence of a prima facie case of discrimination, action was one of persuasion. To avoid liability for discrimination, the
the defendant bears the burden to “set forth, through the introduc- defendant had to introduce evidence “which, in the absence of any evi-
tion of admissible evidence, reasons for its actions which, if believed dence of pretext, would persuade the trier of fact that the employment
by the trier of fact, would support a finding that unlawful discrimination action was lawful.”7 The Court rejected the trial court’s interpretation
Marcellus A. McRae is a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP and a member of the firm’s Labor and Employment,
KEN CORRAL
Litigation, and Business Crimes and Investigations Practice Groups. Joanie L. Roeschlein is an associate in the firm’s Los Angeles office and a
member of the Labor and Employment, Employee Benefits and Executive Compensation, and Litigation Practice Groups. The authors would like
to thank David A. Cathcart and Matthew D. Taggart for their contributions to this article.
22 LOS ANGELES LAWYER / MARCH 2004
Pretext
of McDonnell Douglas, holding instead that an ing discredited the employer’s proffered rea- tion after an internal audit revealed numerous
employer’s burden was merely one of pro- sons, the plaintiff will need to provide addi- timekeeping errors in the attendance sheets
duction. The employer “need only produce tional proof at the pretext phase that dis- of employees within his department. Reeves
admissible evidence which would allow the crimination motivated the employer. claimed that his age was the true reason for
trier of fact rationally to conclude that the The Court’s decision was widely viewed as the adverse employment decision and on that
employment decision had not been motivated confusing. Indeed, the uncertainties arising basis brought suit under the ADEA in federal
by discriminatory animus.” The Court clari- from Hicks bore heavily on the question of district court. At trial, Sanderson Plumbing
fied that the plaintiff at all times bears the bur- whether judgment in a particular case could offered the numerous timekeeping errors
den of persuasion.8 be granted for the defendant as a matter of Reeves had made as its legitimate nondis-
After the Supreme Court’s pronounce- law, and the federal circuits proceeded to criminator y reason for terminating his
ment in Burdine, some federal circuit courts address those uncertainties in that context. A employment. Reeves challenged this justifi-
concluded that a plaintiff must prevail merely leading question was whether Hicks required cation as pretextual through testimony that
upon showing that the defendant’s articu- the employer to go to trial whenever the plain- the employer was incorrect about the record-
lated reasons were pretextual.9 In contrast, tiff called into question the employer’s stated keeping errors that were used to justify his
other circuit courts found that the plaintiff’s reasons for its actions. termination and by introducing evidence of
burden of persuasion could not be satisfied Circuit court decisions after Hicks indi- critical age-based remarks made by his much
merely by discrediting the defendant’s prof- cated agreement on the McDonnell Douglas younger supervisor.
fered reason for the adverse employment framework in which 1) the plaintiff is required This presentation of evidence resulted in
action, but, instead, also required proof of to show at least a prima facie case that creates the trial court twice rejecting Sanderson
the defendant employer’s discriminator y a presumption of discrimination, 2) the defen- Plumbing’s motions for summary judgment.
intent based on the plaintiff’s protected sta- dant is required to rebut this presumption In effect, the trial court allowed Reeves to
tus.10 As a consequence, the circuits split by producing a legitimate, nondiscriminatory survive summary judgment simply by show-
three ways on the impact of proving pretext. reason for the employment action in question, ing that Sanderson Plumbing’s proffered
Some federal circuits applied what became and 3) the plaintiff must show that the reason nondiscriminatory reason for the plaintiff’s
known as the “pretext only” approach, while given by the defendant was a pretext for inten- termination was pretextual. Ultimately, the
other circuits followed a “permissive pretext” tional employment discrimination. However, jury entered judgment in favor of Reeves on
approach, and still others followed a third Hicks did not clarify the allocation of burdens the issue of age discrimination.
approach—“pretext plus.” in disparate treatment cases. Instead, Hicks The Fifth Circuit reversed, holding that
Under the pretext-only approach, a plain- perpetuated the existing conflict among the Reeves “had not introduced sufficient evi-
tiff necessarily prevailed if he or she proved circuits that struggled to measure the quality dence to sustain the jury’s finding of unlaw-
that the defendant’s proffered “legitimate and quantity of pretext evidence that a plain- ful discrimination.”16 According to the Fifth
nondiscriminatory” reasons for the adverse tiff now had to present to survive summary Circuit, the plaintiff “ver y well may have
employment action were pretextual. Under judgment. offered sufficient evidence for a reasonable
the permissive-pretext approach, the trier of The circuit courts imposed different lev- jury to have found that respondent’s expla-
fact could infer discrimination once a plaintiff els of proof for a plaintiff to survive summary nation for its employment decision was pre-
established that the defendant’s proffered judgment, which in turn fostered the incon- textual,” but proof of pretext alone was “not
reasons were pretextual and could find for the sistent evidentiary standards applied post- dispositive of the ultimate issue—namely,
plaintiff, but this was not mandatory. Finally, Burdine. These standards could be catego- whether Reeves presented sufficient evidence
under the pretext-plus approach, a plaintiff rized as either “pretext only” (similar to the that his age motivated respondent’s employ-
could not prevail unless he or she demon- permissive-pretext-only approach adopted by ment decision.” 17 According to the Fifth
strated that the defendant’s proffered rea- many circuits after Burdine) or “pretext plus.” Circuit, Reeves’s proof of pretext was insuf-
sons were pretextual and adduced additional Under the pretext-only approach, once a plain- ficient as a matter of law to support the jury’s
evidence—beyond the plaintiff’s prima facie tiff established a prima facie case of discrim- verdict.
case—that the adverse employment action ination and introduced sufficient evidence The Supreme Court granted certiorari “to
was motivated by discrimination. discrediting an employer’s “legitimate non-dis- resolve a conflict among the Court of Appeals
In 1993, two decades after its McDonnell criminatory reasons,” the fact finder was per- as to whether a plaintiff’s prima facie case of
Douglas opinion, the Supreme Court, in St. mitted to infer discrimination.12 On the other discrimination…combined with sufficient evi-
Mary’s Honor Center v. Hicks,11 was called hand, those courts following pretext-plus dence for a reasonable fact finder to reject the
upon to finally resolve the circuit split over the required plaintiffs to introduce additional evi- employer’s nondiscriminatory explanation
allocation of burdens in individual disparate dence of intentional employment discrimi- for its decision, is adequate to sustain a find-
treatment claims. The Court held that when nation beyond that produced as part of plain- ing of liability” on the part of a defendant for
the plaintiff alleges intentional discrimina- tiff’s prima facie case.13 intentional discrimination.18 The Court found
tion, the fact finder’s disbelief of the defen- that the Fifth Circuit erred in holding that a
dant-employer’s proffered reasons for its Reeves v. Sanderson Plumbing plaintiff was obligated to produce evidence
adverse treatment of the plaintiff-employee On June 12, 2000, in Reeves v. Sanderson beyond proof of pretext to prevail in an indi-
does not compel judgment for the plaintiff Plumbing Products, Inc.,14 the Supreme Court vidual disparate treatment case. The Court
as a matter of law. Rather, the fact finder’s dis- once again sorted through the divergent cir- held that sometimes, but not always, a find-
belief of the defendant’s proffered reasons, cuit views on how to prove pretext. Reeves ing of discriminator y animus could be
coupled with the evidence of discrimination involved allegations of age discrimination inferred from proof of pretext.
from the plaintiff’s prima facie case, may lead under the Age Discrimination in Employment Thus, an employee plaintiff is not always
it to conclude that the adverse employment Act of 1967 (ADEA).15 The plaintiff, Roger required to produce proof of pretext plus
action was the result of intentional discrimi- Reeves, who worked as a super visor for additional evidence proving intent to dis-
nation. In other cases, however, despite hav- Sanderson Plumbing, was fired from his posi- criminate to survive summary judgment in a
24 LOS ANGELES LAWYER / MARCH 2004
discrimination case. Indeed, “[b]ecause a employer may still be appropriate even when In several post-Reeves decisions, the Ninth
prima facie case and sufficient evidence to the plaintiff sets forth a prima facie case and Circuit has affirmed a defendant employer’s
reject the employer’s explanation may permit sufficient evidence to reject the defendant’s motion for summary judgement. For example
a finding of liability, the Court of Appeals explanation. in Nichols v. Mineta,24 the plaintiff, an African
erred in proceeding from the premise that a The Supreme Court’s decision in Reeves, American, alleged that he was denied a pro-
plaintiff must always introduce additional, by washing away the standards created by the motion because of his race and age. Nichols
independent evidence of discrimination.”19 circuits after Hicks, mandates a case-by-case argued that he should have been promoted
The question at issue is whether the court and approach to summary judgment in disparate based on his “superior engineering experi-
trier of fact could reasonably infer that a prof- treatment claims. In the aftermath of Hicks, ence and the number of his equipment cer-
fered false reason for an employer’s action some circuits mandated judgment for the tifications.” The employer’s stated reason for
camouflages intentional employment dis- defendant, even at the summary judgment not promoting the plaintiff was his writing
crimination. The Supreme Court explained: stage, unless the plaintiff offered some direct ability.
The appellate court affirmed the district
court’s grant of summary judgment in favor
of the employer, finding that the plaintiff did
not meet his burden of showing that the
employer’s stated reason was a pretext based
on race or age discrimination.25 The court
reasoned that Nichols needed to show that his
qualifications and experience should have
been the “decisive criteria in the hiring deci-
sion.” Indeed, the plaintiff “failed to present
‘specific’ and ‘substantial’ circumstantial evi-
dence of pretext sufficient to raise a genuine
issue of material fact.”26 The fact that a tech-
nical background was one of several criteria
was not sufficient to demonstrate pretext.
Nichols provided performance evaluations
to “refute the proposition that he was a poor
writer,” and he obtained an admission from
one of the successful candidates that she
“had her own writing difficulties.” In rejecting
the plaintiff’s evidence of supposed pretext,
the court reasoned that the candidates who
filled the positions were all qualified as well,
so there was no evidence of discrimination.
That the plaintiff was also qualified was irrel-
evant without evidence that he was discrim-
inated against based on his race and age.
Similarly, in Adams v. Kmart Corporation27
In appropriate circumstances, the trier evidence of discrimination.22 Other circuits did the district court granted summary judgment
of fact can reasonably infer from the fal- not require plaintiffs to demonstrate both in favor of the employer. In Adams, the plain-
sity of the explanation that the that the employer’s legitimate, nondiscrimi- tiff sued Kmart for wrongful termination
employer is dissembling to cover up a natory reason was pretextual and that the based on retaliation. Adams had several dis-
discriminatory purpose. Such an infer- real reason for the challenged employment crepancies in his timesheets, and there were
ence is consistent with the general decision was discrimination in order to sur- several instances when the defendant claimed
principle of evidence law that the fact vive a motion for summary judgment.23 Reeves that the plaintiff was not at work at his sched-
finder is entitled to consider a party’s attempts to resolve this inconsistency among uled time. He was issued a written reprimand
dishonesty about a material fact as the circuit courts by requiring that courts documenting an instance in which he did not
“affirmative evidence of guilt.” More- examine the entire record to determine show up for work. This reprimand also stated
over, once the employer’s justification whether the plaintiff has produced sufficient that “any future disregard for company policy
has been eliminated, discrimination evidence to ultimately satisfy his or her bur- will result in your termination.” Thereafter, the
may well be the most likely alternative den of persuading the trier of fact that the plaintiff either showed up late or did not show
explanation, especially since the defendant intentionally discriminated. up at all on several occasions. Kmart termi-
employer is in the best position to put nated Adams and offered as its stated nondis-
forth the actual reason for its decision.20 The Ninth Circuit after Reeves criminatory reason that the plaintiff had three
Nevertheless, the Court noted that “there Reeves has generated wide discussion and straight days of unwarranted partial absences.
will be instances where, although the plaintiff further uncertainties, but it is difficult to dis- Adams claimed that this proffered reason
has established a prima facie case and set cern its impact. Within the Ninth Circuit, was pretextual and that the defendant termi-
forth sufficient evidence to reject the defen- courts have ruled in both directions. However, nated his employment in retaliation for his
dant’s explanation, no rational fact finder a careful reading of the cases indicates which reporting that his supervisors were padding
could conclude that the action was discrimi- factors are key to these courts’ determination their inventories and changing expiration
natory.”21 Thus, summary judgment for the of when summary judgment is appropriate. dates on meats.
LOS ANGELES LAWYER / MARCH 2004 25
In granting summary judgment in favor of her language and communication skills and
the employer, the court noted that Reeves her temperament. For another position, the
would not be controlling in this case because school district claimed that the plaintiff was
Reeves involved discrimination rather than not hired because it was looking for a teacher
retaliation. Although the court noted that the to double as a ski coach.
reasons given by the employer were “sub- The district court granted summary judg-
ject to doubt,” the court stated that “it would ment in favor of the employer, and the Ninth
be impossible for a reasonable trier of fact to Circuit reversed.32 As evidence of pretext,
disregard the affirmative evidence that the the plaintiff provided evidence that there
decision-maker was in no way motivated by were already two ski coaches employed by the
plaintiff reporting a public-policy violation.”28 school. Significantly, during the course of the
In another case in which a district court litigation, the school district had changed its
granted summar y judgment, Wroge v. stated reason for not hiring the plaintiff from
Henderson,29 the plaintiff brought a disability her accent, to lack of credentials, and finally
discrimination action against his employer, the to her temperament. The court held that,
U.S. postmaster general. Wroge contended based on the facts of the case, it was error for
that his employer wrongfully suspended him the trial court not to draw all reasonable infer-
because he occasionally needed time off from ences in favor of the plaintiff.33 The court rea-
work for health reasons. The plaintiff had soned that the fact that several of the defen-
previously been reprimanded for improperly dant’s witnesses made note of plaintif f’s
completing a form on several occasions and accent, that the plaintiff was substantially
had also refused a customer’s request for more qualified than applicants who were hired
assistance, all of which was was documented instead of her, and that she had been told
in his file. The defendant then issued the that she would receive a position, clearly
plaintiff a 14-day suspension on the basis of demonstrated that there was a question of
these documented problems with his per- fact for the jury to decide. Indeed, the court
formance. Wroge alleged that this proffered noted that plaintiff’s superior qualifications
reason was pretextual and that he was instead alone would support a finding of pretext. The
fired due to his medical condition. court reiterated that it has never held that
As evidence of pretext, Wroge offered qualifications “must be so apparent as to jump
“copies of military evaluations, a copy of his off the page and slap us on the face to support
honorable discharge certificate, letters from a finding of pretext.”34
Legislative Intent. customers on his route and fellow postal car- A similar result obtained from the appeal
riers which attest to his integrity, an account in Lyons v. England.35 In Lyons, the plaintiffs,
You probably seldom of his weekly expenses (with receipts),…and African American males, brought disparate
need it. photographs of his parents and himself as a treatment claims against their employer under
boy.” Since he presented no evidence to show Title VII for denying them job promotions
But when the need does arise, that his alleged disability was a factor in his and giving them unfavorable work assign-
it can be crucial to winning termination, the district court granted sum- ments. The plaintif fs claimed that they
your case. mary judgment to the defendant.30 reached a ceiling in promotions and were
Tracking down sources of information can be In contrast to this line of post-Reeves cases, given “non-career enhancing jobs.” They
a frustrating and time consuming process. the Ninth Circuit has also frequently reversed claimed that they were not assigned details
When legislative history is important to your a district court’s granting of an employer’s that would provide them with an opportunity
case it can be very cost effective to engage our motion for summary judgment. For exam- to advance and gain experience that would be
professional expertise to research the history ple, in Raad v. Fairbanks North Star Borough beneficial for higher-ranking positions. They
and intent of the statutes or administrative School District,31 the plaintiff, a substitute presented evidence that a white male
enactments at issue in your case. teacher of Lebanese descent and Muslim employee was placed in a supervisory position
When you call, you can explain what faith, filed suit against her former employer, for two years even though he did not have the
you need, or tell me your situation and I can
a school district, for disparate treatment under proper level of qualification. The employer’s
make suggestions on possible approaches.
Title VII. Raad claimed that the school district stated reason for denying the promotions
You can draw on my years of experience, so
you will know what is likely to be available refused to hire her full time because of her was the low rank of the plaintiffs.
on your topic. You will get a precise quote accent. She had impeccable credentials and The appellate court reversed the district
for the cost of the project. When you was “awarded the highest possible rating by court’s grant of summary judgment in favor
authorize us to proceed, the report will be in the team of principals who interviewed her.” of the employer, finding that the plaintiffs
your office on the date you specify. Despite her high academic achievements and established a prima facie case of pretext.36
glowing recommendations, the principal The court noted that if the employer did not
JAN RAYMOND noted that the plaintiff’s “accent and soft spo- “publish the qualifications for positions that
LEGISLATIVE HISTORY & INTENT kenness may be a detractor to some instruc- were awarded without a competitive applica-
Toll Free (888) 676-1947 tional effectiveness.” She applied and was tion process, it would be unreasonable to
Fax (530) 750-0190 s E-mail: jan@naj.net. rejected for several positions for which she require a plaintiff to present direct evidence
www.naj.net was qualified. For one full-time position, the of the actual job qualifications as part of his
State Bar #88703 school district argued that it legitimately prima facie case.”37 Further, the court found
denied her the teaching position because of that the employer failed to explain how rank-
26 LOS ANGELES LAWYER / MARCH 2004
ing was relevant to its granting of promo- the same as two white men in his depart- summary judgment rulings in this area are
tions. Additionally, the court noted that the ment who had committed similar violations. driven by the specific facts of a given case and
plaintiffs produced a substantial amount of The court reasoned that different treat- the eyes of the beholder. However, several fac-
background evidence to show that the ment of similarly situated individuals was tors do seem to be of special importance in
employer “maintained a discriminatory sys- prima facie evidence of discrimination.40 A light of Reeves.
tem of detail assignments that disadvantaged white employee who had committed a more Reeves confirms that the plaintiff’s depo-
black employees by denying them work expe- egregious misuse of resources was only sus- sition is a critical event in an employment
rience that would have facilitated their pro- pended for 10 days rather than terminated. discrimination case for purposes of summary
motion” to higher levels.38 Consequently, the Another white employee who misused judgment. As the Reeves Court noted, “The
court reversed the lower court’s decision resources far greater than the amount mis- ultimate question in every employment dis-
granting the employer’s motion for summary used by plaintiff received significantly lighter crimination case involving a claim of disparate
judgment, finding that a reasonable trier of disciplinary action. The court held that these treatment is whether the plaintiff was the vic-
fact could determine that there was discrim- facts constituted prima facie evidence of dis- tim of intentional discrimination.”41 A plaintiff
inatory intent. crimination toward the plaintiff. Even though must show “by a preponderance of the evi-
Another example of a district court’s denial there was a legitimate reason for firing the dence that his [protected status] was a deter-
of summary judgment to an employer can plaintiff, the court held that the lenient treat- mining and motivating factor in the decision
be found in Mulugeta v. Regents of the ment of the white employees compared to [of the employer] to terminate him.” 42
University of California.39 In Mulugeta, an that of the plaintiff was prima facie evidence Accordingly, crucial to the employer’s motion
Ethiopian male brought a claim for disparate of discrimination and that plaintiff was entitled for summary judgment or summary adjudi-
treatment under Title VII. Mulugeta worked to proceed to a jury. Accordingly, the court cation is a carefully prepared and thorough
in the transportation department at the defen- denied the defendant’s motion for summary deposition of the plaintiff that establishes the
dant university, where he was given the oppor- judgment. record of the plaintiff’s testimony on the
tunity to take classes at the Building Owners essential elements of the challenged causes
and Managers Institute. His supervisor gave Practical Considerations of action.
him a check for tuition, and he deposited this The factors identified and the issues dis- Second, post-Reeves decisions beyond the
check into his personal account and later cussed in these cases by no means repre- Ninth Circuit indicate that employer-defen-
withdrew cash funds to pay for his tuition. The sent the breadth of factors relevant to a court’s dants should not rely solely on the memories
plaintiff was terminated for misuse of em- inquiry into whether it will grant or deny and testimony of their decision makers to
ployer resources. He alleged that he was dis- summary judgment. The relevant decisional defeat discrimination claims. In Zimmermann
criminated against because he was not treated law reveals the tremendous extent to which v. Associates First Capital Corporation,43 for
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8
See id.
example, the Second Circuit affirmed judg- dant.”47 In reversing the summary judgment 9
See, e.g., Dister v. Cont’l Group, Inc., 859 F. 2d 1108,
ment for the plaintiff, stating that “a notable ruling in favor of the employer, the Second 1113 (2d Cir. 1988) (“Burdine made it plain that in
aspect of this case is that [the defendant] Circuit concluded that the employer had failed addition to directly proving a discriminatory motive
failed to offer a single item of documentary to show legitimate nondiscriminatory rea- for firing, a plaintiff may prevail upon a showing that the
evidence to support its assertion that it fired sons for its actions. employer’s given legitimate reason is unworthy of cre-
[plaintiff] for inferior performance.”44 Thus, Finally, inconsistent explanations for the dence….”).
10
See, e.g., Spencer v. General Elec. Co., 894 F. 2d 651,
an employer’s ability to defend itself is adverse employment action may be sufficient 659 (4th Cir. 1990), overruled on other grounds by Farrar
enhanced by its ability to produce contem- to cause a case to proceed to a jury trial. v. Hobby, 506 U.S. 103 (1992), (“If the presumption is
poraneous, documentar y evidence of the Courts from numerous circuits have held rebutted, the burden of production returns to the plain-
nondiscriminatory reasons for its employ- that inconsistent reasons of fered for an tiff to show that the defendant’s proffered nondiscrim-
ment actions. Courts have held that contem- adverse employment action can support a inatory reasons are pretextual and that the employ-
ment decision was based on a sexually-discriminatory
poraneous documentation may be credible claim of actionable pretext in disparate treat-
criterion.” (internal citation omitted)).
evidence of an employer’s asserted nondis- ment cases.48 The clear lesson is that it is not 11
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
criminatory reasons for the challenged action enough for an employer simply to practice (1993)
in an employment discrimination case.45 nondiscrimination in employment practices in 12
See, e.g., Kline v. Tennessee Valley Auth., 128 F. 3d
Post-Reeves decisions also make it clear order to prevail at the summary judgment 337, 348 (6th Cir. 1997) (finding that the trial court’s
“intimation that in order for [the plaintiff] to prevail he
that vague explanations for adverse employ- stage; it is also necessary to prove the exis-
must introduce evidence of pretext, coupled with direct
ment actions may make the employer vul- tence of these practices with reliable and proof, is an erroneous conclusion of law”).
nerable to claims that the explanation is pre- credible evidence. s 13
See, e.g., Walthon v. Bisco Indus., Inc., 119 F. 3d
textual. An employer’s explanation of its 368, 370 (5th Cir. 1997) (“Plaintiff cannot succeed by
legitimate nondiscriminatory reasons should 1
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. proving only that the defendant’s proffered reason is pre-
133 (2000). textual, but instead must demonstrate pretext and that
be clear and specific. This consideration has
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 discrimination was the real reason.” (internal citation
been emphasized in several circuits. For omitted)).
(1973).
instance, in the Second Circuit’s decision in 3
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507
14
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
Mandell v. County of Suffolk,46 the employer’s (1993) (internal citations and emphasis omitted) (quot- 133 (2000).
15
explanation for its adverse employment ing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 Age Discrimination in Employment Act of 1967, 29
actions was couched in vague and general (1981)). U.S.C. §§621-634 (2003). The prima facie showing in an
4
See McDonnell Douglas, 411 U.S. at 804-05. ADEA individual disparate treatment claim is slightly
terms. Specifically, the employer stated that 5
Id. at 807. different than under Title VII. See Bodenheimer v. PPG
the plaintiff “did not project the image…of 6 Indust., Inc., 5 F. 3d 955, 957 (5th Cir. 1993). The plain-
Burdine, 450 U.S. 248.
someone who has a positive grasp of some 7
Id. at 257. tiff must show that he or she was: 1) discharged, 2) qual-
unspecified ‘areas’ of interest to the defen- ified for the position, 3) within the protected class at the
28 LOS ANGELES LAWYER / MARCH 2004
time of discharge, and 4) either i) replaced by someone
outside the protected class, ii) replaced by someone
younger, or iii) otherwise discharged because of age.
See id.
16
Reeves, 530 U.S. at 151.
17
Id. (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 193 F. 3d 688, 693-94 (5th Cir. 1999)).
18
Id. at 140.
19
Id. at 147-48.
20
Id. (internal citations omitted).
21
Id.
22
See, e.g., Rodriguez-Cyuervos v. Wal-Mart Stores,
Inc., 181 F. 3d 15, 22 n.5 (1st Cir. 1999) (“In Hicks, the
Court made it clear that in order to survive summary
judgment, a Title VII plaintiff must present sufficient evi-
dence not only that the employer’s proffered reason is
false but also that the real reason is discrimination.”
(internal citation omitted)).
23
See, e.g., AKA v. Washington Hosp. Ctr., 156 F. 3d
1284, 1290 (D.C. Cir. 1998) (en banc) (rejecting “any
reading of Hicks under which employment discrimi-
nation plaintiffs would be routinely required to sub- MAKE WRONGFUL TERMINATION
mit evidence over and above rebutting the employer’s
stated explanation in order to avoid summary judg-
A PROFIT CENTER!
ment”).
24
Nichols v. Mineta, No. 00-56051, 2002 WL 74445 (9th Danz & Gerber will handle your referrals.
Cir. 2002).
25
National origin, age, sex, race, retaliation, federal false
See id. at *2.
26
Id. claims on behalf of employees.
27
Adams v. Kmart Corp., No. C 00-03885 WHA, 2001
U.S. Dist. Lexis 12827 (N.D. Cal. Aug. 10, 2001). Please call to discuss your referral with senior partner Steve Danz.
28
Id. at *17. Statewide, main office in Sherman Oaks. (818) 783-7300.
29
Wroge v. Henderson, No. C-99-03320 CRB, 2000 U.S.
Dist. Lexis 10853 (N.D. Cal. July 31, 2000). All fees paid in accordance with Rules of Professional Responsibility.
30
See id. at *17.
31
Raad v. Fairbanks North Star Borough Sch. Dist., 323
F. 3d 1185 (9th Cir. 2003).
32
See id. at 1191.
33
See id. at 1194.
34
Id.
35
Lyons v. England, 307 F. 3d 1092 (9th Cir. 2002).
36
See id. at 1110.
37
See id. at 1114.
38
Id.
39
Mulugeta v. Regents of the Univ. of Cal., No. C-01-
0332 EDL, 2002 U.S. Dist. Lexis 17013 at *2 (N.D. Cal.
July 22, 2002), aff’d, 2003 U.S. App. Lexis 22649 (9th Cir.
JACK TRIMARCO & ASSOCIATES
Nov. 3, 2003).
40
41
See Mulugeta, 2002 U.S. Dist. Lexis 17013 at *51.
POLYGRAPH/INVESTIGATIONS, INC.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 at 153 (2000).
42
43
Id. 9454 Wilshire Blvd.
See, e.g., Zimmermann v. Associates First Capital
Corp., 251 F. 3d 376 (2d Cir. 2001). Sixth Floor
44
Id. at 379.
45
See, e.g., Mayer v. Nextel West Corp., 318 F. 3d 803,
Beverly Hills, CA 90212
810 (8th Cir. 2003) (finding that a review of the plain-
tiff’s performance evaluations and “corrective action
(310) 247-2637
plan” drafted by the defendant-employer dispelled any
reasonable inference that age was a determinative fac-
tor in the plaintiff’s termination); Massey v. Blue Cross-
1361 Avenida De Aprisa
Blue Shield of Ill., 226 F. 3d 922, 926 (7th Cir. 2000) Camarillo, CA 93010
(“[A] plaintiff’s subjective, self-serving testimony is not
sufficient to contradict a well-documented history of
Jack Trimarco - President (805) 383-8004
poor job performance.”).
46
Former Polygraph Unit Chief
Mandell v. County of Suffolk, 316 F. 3d 368 (2d Cir.
Los Angeles F.B.I. (1990-1998)
2003).
email: jtrimarco@aol.com
47
Id. at 380. CA. P.I. # 20970
48
See Raad v. Fairbanks North Star Borough Sch. Dist., www.jacktrimarco.com
323 F. 3d 1185 (9th Cir. 2003); Allen v. Chicago Transit
Auth., 317 F. 3d 696 (7th Cir. 2003); Zapata-Matos v. Former Polygraph Inspection Team Leader
Member Society of Former Special Agents Office of Counter Intelligence
Reckitt & Coleman, Inc., 277 F. 3d 40, (1st Cir. 2002);
Federal Bureau of Investigation U.S. Department of Energy
EEOC v. Sears Roebuck & Co., 243 F. 3d 846, (4th
Cir.); Roge v. NYP Holdings, Inc., 257 F. 3d 164, (2d Cir.
2001).
LOS ANGELES LAWYER / MARCH 2004 29