Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

California Court of Appeal reaffirms key principle: evidence of pretext is not required to defeat summary-judgment motions in employment cases

Employment attorneys on both sides, this case is definitely worth putting in your MSJ-opinions folder: Light v. California Department of Parks & Recreation, 14 Cal. App. 5th 75 (Aug. 8, 2017) (linked here).  Why?  For its incredibly clear statement of law, affirming a key principle that ends up lost on so many trial courts: evidence of pretext is not required to defeat an employer's motion for summary judgment in cases brought under the California Fair Employment and Housing Act.  

Here is one key excerpt: 

The showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer's evidence of nonretaliatory intent.  While "pretext" is certainly a relevant issue in a case of this kind, making it a central or necessary issue is not sound.  The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.  The employer's mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor.  Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee's showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee's favor.  That, and not "pretext," must be the focus of the judicial inquiry."

14 Cal. App. 5th at 94 (original italics, internal quotation marks omitted).  

Reversing the trial court's grant of summary judgment, the Light court went on to hold that--- "even setting aside the issue of pretext"---a jury could find that the adverse employment actions against the plaintiff were the result of retaliatory intent or animus.  In the face of the evidence in that case (including the plaintiff's former supervisor warning that the employer retaliates; asking other employees to lie to investigators and following up to make sure they did so; threatening the plaintiff with retaliation if the plaintiff, too, did not comply; telling the plaintiff that she would be moved to a different workplace; and more (see id. at 95)), the plaintiff had indeed "offered sufficient evidence to raise a triable issue of fact" of retaliatory intent.  In other words, even if the plaintiff never showed evidence that the employer's asserted reasons were false, there was enough to still raise a triable issue regarding retaliatory intent, and that---just enough evidence that a jury could find that retaliatory intent was the requisite causal factor---is all that is required.

The employer-defendant had focused its argument in part on whether the plaintiff had shown pretext.  But the Light court was clear: "[The defendant's] focus on 'pretext' as the central issue is misplaced."  Id.  The issue is, looking at the evidence as a whole, whether the plaintiff has raised a triable issue of fact on the claim overall.  Once an employer offers supposed legitimate, nonretaliatory reasons for the adverse employment action, the presumption of retaliation disappears and the plaintiff's burden is simply to offer evidence that raises a triable issue whether the offered reasons are pretextual OR "the circumstances as a whole support[] a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus."  Id. at 94 (internal quotations marks and citation omitted).  

Defendants in disputed-intent cases will typically cite to the so-called McDonnell Douglas burden-shifting framework to argue that a plaintiff must show pretext to survive a summary-judgment motion.  This framework was discussed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as a method to narrow down issues in deciding summary-judgment motions in employment cases involving circumstantial evidence of illegal intent.  Under the McDonnell Douglas framework, first the plaintiff must offer evidence establishing a prima facie case of illegal adverse employment action (e.g., adverse employment action motivated by discrimination or retaliation).  The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.  Finally--and this is where courts often get hung up and defendants trick busy trial judges---the McDonnell-Douglas opinion discussed that, on remand in that case, the plaintiff "must . . . be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext."  411 U.S. at 804.  "In short . . . [the plaintiff] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision."  Id. at 805.

Can you guess what defendants do with this language?  They focus on and attack the plaintiff's attempted showing (or lack of showing) of pretext, because the McDonnell Douglas opinion talks about pretext, pretext, pretext.  And that leaves trial judges with an easy method of granting summary judgment for the defendant, since employer-defendants can always come up with some made-up reason for the adverse employment action that the plaintiff often can't dispute very well (like having all of the plaintiff's coworkers toe the company line and say that the plaintiff had an attitude problem and pissed off the boss).

Sure, there are other cases that gave employees language that pretext is not the be-all, end-all.  But the Light case is so good for plaintiffs because (1) it's the most recent pronouncement from the Court of Appeal on this issue and (2) it lays out very clearly---and with language that is much harder to ignore---that pretext is straight-up not required. 

And add in this guiding language in Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243 (2009), and plaintiffs are better equipped to defeating questionable summary-judgment motions: "[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper.  Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be."  Nazir, 178 Cal. App. 4th at 286.

For employer defendants, the line is becoming clearer: with the burden for winning on summary judgment so high, it may make sense to focus on identifying any issue that can be truly decided as a matter of law. Place that front and center (e.g., clear evidence of a breakdown in the interactive process due solely to the plaintiff's own conduct) rather than betting the whole motion on something that is a disputed issue of fact. Being mindful of LightNazir, and the other opinions coming down in this area can better inform your strategy when thinking about incredibly expensive summary-judgment motions.

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