Employment Discrimination Cases: Discovery to Beat Employer’s Motion for Summary Judgment

by E. Thomas Moroney, August 29, 2014

I recently participated in drafting two state court appeals on behalf of employees who lost their employment discrimination claims on summary judgment. That experience has given me some insights on what you might be able to do in discovery to avoid summary judgment.

First the basic law: Courts evaluate employment discrimination cases by asking three questions (the McDonnell Douglas approach: McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792). First, is there a prima facie case of discrimination? If so, has the employer offered competent evidence articulating legitimate non-discriminatory reasons which it contends motivated its conduct toward the employee? And, upon such showing by employer, has employee offered competent evidence that employer’s stated reasons were merely a pretext for a discriminatory motive? See Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 860-861; Morgan v. The Regents of the University of California (2000) 88 Cal.App.4th 52, 68; Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 198, 202-203.

Setting nuance aside, a prima facie case requires evidence that the employee: (1) belongs to a protected class; (2) was qualified to do the job; (3) was discharged or was subject to some other adverse employment action; and (4) was replaced by someone outside the protected class, other similarly situated employees outside the protected class were treated more favorably, and/or the employee has other evidence of discrimination. See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 200; Evans v. City of Houston (5th Cir. 2001) 246 F.3d 344, 348; Damon v. Fleming Supermarkets of Florida, Inc. (11th Cir. 1999) 196 F.3d 1354, 1359.

When an employer brings a motion for summary judgment, the employer must negate the employee’s right to prevail, including negating the prima facie case. See Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 861(“In a summary judgment motion, in an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.”); Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309 (“[I]n the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue.”); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216 (“Although the burden of proof in a [employment discrimination case] … ultimately rests with the plaintiff, in the case of a motion for summary judgment or summary adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.”).

The prima facie burden is so minimal that only a truly awful claim can be summarily rejected on grounds that the employee cannot establish a prima facie element: e.g, the 30 year old who brings an age discrimination claim.

Instead of turning on the prima facie elements, an employer’s motion for summary judgment typically relies on evidence that the employer acted for nondiscriminatory reasons. e.g, the employee’s poor performance or an economically driven reduction in force. For the employee to defeat the motion, he or she must offer sufficient evidence to raise a triable issue of fact concerning pretext — that the employer’s justification is a mere pretext for a discriminatory motive.

While likely necessary, it may not be sufficient to only raise a triable issue of fact as to whether the employer’s justification is false, i.e. that the employee’s performance was satisfactory or the company’s economic concerns unjustified. It is likely necessary because it is difficult to prove discrimination in the face of an employer’s undisputed evidence that it responded to the employee’s poor performance or the company’s economic realities. You can still prove discrimination in those circumstances if you show the employee was treated differently than others outside the protected class, but it is a more difficult claim. See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 225, 232 (In California — mixed-motives case: age discrimination as a substantial (not “but-for”) factor motivating the adverse employment decision).

It may not be sufficient because the employee is not bringing a claim for general unfairness or employer incompetence. So it is not enough to merely offer evidence that the employer was mistaken. Evidence, however, that the employer is lying is different and should be sufficient. The case law gets muddled on this issue. Some courts hold that evidence of falsity is insufficient. See McGory v. Applied Signal Tech. (2013) 212 Cal.App4th 1510, 1531-32 (“Disbelief of an employer’s stated reason for a termination gives rise to a compelling inference that an employer had a different unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one.”). But other courts see falsity as evidence of pretext. See Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146-148; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 863 (“[E]vidence that the employer’s claimed reason [for the employee’s termination] is false, “such that it conflicts with other evidence, or appears to have been contrived after the fact, “will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.”). In a case that clears the prima facie hurdle, evidence that the employer is lying about its justification should by itself be sufficient to defeat a motion for summary judgment. The confusion in the case law comes about when the record is not clear that the employer is lying or dissembling, and not merely that the employer is wrong.

But whether it is necessary or sufficient, the fact remains that, absent direct evidence of discriminatory intent (e.g, “I fired Bob because he is old”), discovery ought to painstakingly scrutinize the employer’s justification.

You may not need or be able to obtain everything, but here are some suggestions:

1. To test the employer’s performance justifications, you will want:

— To know who hired, supervised, promoted and disciplined the employee. Changes in the employee’s supervisors and managers may go a long way toward understanding how a long-tenured employee finds himself in trouble. Absent those changes, the employee is going to have some difficulty explaining how the person who hired or promoted him later acted for a discriminatory reason when the same manager/supervisor disciplined the employee.

— All the employee’s formal performance evaluations, and if possible, detailed testimony from those who gave both positive and negative evaluations.

— The employee manual and all other documentation concerning performance expectations and procedures that are to be followed when poor performance is identified. You should find out whether those expectations and procedures were applied and followed in your dispute, and whether they were applied and followed in other recent terminations, promotions, or evaluations.

— As much as possible, you need to rebut, in detail, the specific performance shortfalls identified by the employer. It is not going to be enough for the employee to say that he or she disagrees with the employer’s assessment of his or her performance.

— You will want every document and email concerning the employee’s performance.

— You should track down everything the decision-makers said about their reasons for acting, and also any scuttlebutt about the reasons for the employee’s termination.

— You will want to find other employees who had similar performance issues but were treated differently.

— If the employee was replaced, by whom (name, and as relevant: age, race, gender, sexual orientation), and when? Did the replacement employee take on the same job and responsibilities, if different, how was it different? What was the replacement employee paid? How did the replacement employee perform? What standards were applied to the replacement employee? Were the same evaluation procedures and standards followed?

In sum, you want to show not only that the employer’s poor performance rationale is unjustified, but that it is false, a lie, a pretext.

2. On economic justifications, reduction in force, and layoffs you will want:

— To again know who hired, supervised, and laid off the employee, noting any changes in supervisors or managers.

— The company’s detailed financial statements, and minutes from board of director and management meetings during which economic concerns were discussed.

— The employee manual and all other documentation concerning procedures for reductions in force and layoffs. Were those procedures followed in your dispute?

— You will want every document and email concerning the decision to layoff employees, and everything specific to laying off your employee.

— You should track down everything the decision-makers said about their reasons for acting, and also any scuttlebutt about the reasons for the employee’s termination.

— You will want to know who else was laid off, their position and salary. Were other people hired during this period? Did other employees take pay cuts, get raises? Other than cutbacks in force, did the company otherwise tighten its belt? You also will want to know about any other recent layoffs and reductions in force, and whether procedures were followed.

— And you will want most everything you also need to contest performance issues. You will want the performance information because the employer will often explain its layoff selections (even if prompted by economic reasons) by pointing to performance. You will want to obtain all the employee’s formal performance evaluations, and if possible, detailed testimony from those who gave both positive and negative evaluations.

— After termination, what became of the job the terminated employee had been doing? Were the employee’s responsibilities absorbed by others?

— If the employee was replaced, by whom (name, and as relevant: age, race, gender, sexual orientation), and when? Did the replacement employee take on the same job and responsibilities, if different, how was it different? What was the replacement employee paid? How did the replacement employee perform? What standards were applied to the replacement employee? Were the same evaluation procedures and standards followed?

Again, you need to show not only is the employer’s economic hardship rationale unjustified, but that it is false, a lie, a pretext.

3. Other evidence of discrimination or pretext: Raising a triable issue of fact as to the employer’s nondiscriminatory justification is important and may be sufficient; but you also want to try and develop other evidence of discriminatory motive such as: more favorable treatment of employees outside the protected class; inappropriate age, race, gender or sexual orientation comments; and evidence of employer’s dishonesty on relevant issues.

Discovery is expensive, and these claims are often brought on a contingency or fee-recovery basis. Nonetheless, if you want to avoid summary judgment, you should develop a detailed factual record that can withstand the employer’s summary judgment motion. The employer is going to bring that motion and will proffer substantial nondiscriminatory reasons for acting.  You will not be able to get everything in every case; but even if you can’t always get what you want; you might get what you need.