Takeaway: This is, on the whole, a helpful case for employers. It is a reminder that even with the FEHA’s strong protections for employees, plaintiffs must still provide sufficient evidentiary support to meet their burden to show discriminatory motive. Here, a highly qualified plaintiff who was significantly older than selected candidates was not able to meet her burden.
At the same time, to avoid providing support for a potential claim, employers should be mindful that employees’ performance reviews capture accurately how their performance is actually viewed.
The U.S. District Court for the Southern District of California granted summary judgment on three of four claims of age discrimination brought by a former employee. While the individuals selected for four positions were an average of 30 years younger, the court held that the plaintiff failed to meet her evidentiary burden to demonstrate discriminatory motive by her former employer.
The plaintiff, a former part-time assignment editor at the defendant’s television station, brought her age discrimination claims under California’s Fair Employment and Housing Act (FEHA). Her primary set of claims stemmed from the defendant’s decisions not to hire her four separate times for internal positions, opting in each instance to select a significantly younger person for the role.
In order to demonstrate age discrimination under the FEHA, a plaintiff must show:
- She was a member of a protected class.
- She was qualified for the position at issue or was satisfactorily performing her current position.
- She suffered an adverse employment action.
- Other circumstances to suggest discriminatory motive.
A claim may be established through direct evidence or through presumption (indirect evidence). The plaintiff argued she could demonstrate her claim in both ways.
The court quickly dismissed the plaintiff’s argument that e-mailed comments made by decision-makers were direct evidence of age discrimination. Such comments included a desire to infuse the station newsroom with “innovative,” “bold” and “fresh” thinking and a view that the newsroom had not “progressed with the times.” The court found that while such comments may allow a reasonable inference of a preference for younger individuals, it “is an inference nonetheless” and thus not direct evidence, which must, if believed, prove the fact of animus without inference.
The court moved on to consider indirect evidence, using the familiar McDonnell Douglas analysis. The court found that the plaintiff established her prima facie case, as she was in her 60s, was denied four positions in favor of individuals who were significantly younger and was entitled to a prima facie presumption that she was qualified, as three of the positions were for a full-time assignment editor position and the plaintiff had worked at the defendant for seven years as a part-time assignment editor.
The defendant provided evidence that the individuals selected were more qualified than the plaintiff. The court found this met the defendant’s burden to produce a legitimate, nondiscriminatory reason for its hiring decisions.
The plaintiff then had the burden to provide evidence to permit a rational inference that the defendant’s proffered reason was pretextual and that its actual motive was discriminatory. The court considered the four hiring decisions and found, for three of them, that the plaintiff could not meet this burden.
For one position, the court found that while the plaintiff demonstrated she was qualified based on her “extensive experience” at the station, she had not demonstrated that she was more qualified than the hired applicant.
For a second position, the court found that even though the defendant did not comply with a company policy that would have granted the plaintiff an interview, the plaintiff had not argued that she would have been selected had she been interviewed. The court again found the plaintiff had not shown she was more qualified than the selected candidate.
For a third position, the court found that the plaintiff had shown significantly more experience and qualifications than the hired applicant. Yet, the court found that the plaintiff, who had recently indicated she could not work the hours required for the role, had not provided evidence to contradict the defendant’s view that this was a disqualifying factor.
Finally, for a fourth position, the court found that the plaintiff had met her evidentiary burden to survive summary judgment by, in part, presenting evidence that the defendant’s stated view that the plaintiff was less qualified than the selected candidate was contradicted by the plaintiff’s recent favorable performance reviews. The court found a rational inference could be drawn that this disconnect supported a finding of discriminatory motive. The plaintiff’s case was allowed to proceed for this one position.
Leonard v. KFMB-TV LLC, S.D. Cal., No. 20cv1612-LL-KSC (March 22, 2022).
Marc J. Scheiner is an attorney with Duane Morris LLP in Philadelphia.