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UNITED STATES DISTRICT COURT
SOUTHWESTERN DISTRICT OF CALIFORNIA
JOE SMITH,
Plaintiff,
v.
GROCERIES, LTD., JOHN GREEN, MARY JONES, HARRY BROWN, FRANK SMITH and DOES 1 through 10, inclusive,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
FACTS
Plaintiff has worked for defendant Groceries, Ltd., at its store in Anytown, California, for 25 years. After he was promoted in his fourth year of employment, he worked as a journeyman grocery clerk until his termination. In that period, defendant Groceries, Ltd. never disciplined plaintiff and he never took time off for illness. As a result, plaintiff had accumulated a significant number of personal and sick days. When he was dismissed, plaintiff was 40 years old.
At the time of his termination, plaintiff's duties were primarily concerned with
ordering and stocking goods for the freezer department. His shift usually began at 1:30 a.m. When he finished stocking for the day, he worked a cash register until the end of his shift.
Shortly before he was fired, plaintiff contracted a severe case of poison oak rash. The day after the rash bloomed he was scheduled to work for eight hours beginning at 1:30 a.m. He worked that day until a little after 7:00 a.m. Although he was in pain, he worked until almost 7:00 to ensure that the freezer department's inventory was ordered and filled correctly.
At around 7:00, he approached John Green, the store's assistant manager, and showed him his poison oak rash. Although plaintiff often worked a cash register after finishing with his stocking duties, on this day he believed that his rash rendered him too unsightly for a position requiring customer contact. Instead, plaintiff asked Mr. Green if he could go home early and work only enough hours over the next few days to ensure that the freezer department was correctly stocked. Mr. Green agreed that plaintiff could go home and work only as much as he could over the next few days. Plaintiff went home believing that he could claim sick leave for the hours he had missed.
Plaintiff worked about five hours on each of the next three days. A few days later, plaintiff's name appeared on the accounting office's "exceptions list." Groceries, Ltd. has replaced a mechanical time clock with a scan card, which the employee passes through a slot to clock in and out. When the clock does not read the card, the employee's name appears on the exceptions list to allow a handwritten submission of an exceptions card.
Because plaintiff had never taken sick leave, he did not know the proper procedure. He assumed his name was on the exceptions list because defendant Mary Jones or defendant Green wanted him to fill out the full cards so that he could claim credit for his sick leave. He believed that he could take his sick leave by filling out his usual hours on the card for the days when he had been sick. Plaintiff therefore submitted time cards showing the hours he ordinarily worked. Defendant Green signed the cards without questioning plaintiff or telling him he had made an error.
Two weeks later, plaintiff was called into a meeting in the store manager's office with Mary Jones and Groceries, Ltd. security investigator Frank Smith. Mr. Smith accused plaintiff of deliberately filling out the exception cards to steal hours from the company. Mr. Smith told plaintiff he had witnesses that on three days plaintiff had not worked the full time he stated on the time cards. Plaintiff explained that he filled out the time cards desiring to take sick leave on the days involved. At the end of the meeting, plaintiff was told he was suspended pending investigation.
District Manager Harry Brown ordered plaintiff terminated, and he was terminated the following day. Plaintiff was temporarily replaced by Steve Gray, 31 years old. His permanent replacement was George Violet, 34 years old.
Plaintiff filed a complaint charging age discrimination with the California Department of Fair Employment and Housing and received his right-to-sue letter.
ARGUMENT
1. The standard on summary judgment
Summary judgment is properly granted when no genuine and disputed issues of material fact remain and the movant is clearly entitled to prevail as a matter of law. Fed. Rules Civ. Proc., rule 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The nonmoving party's evidence is to be taken as true, and all inferences are to be drawn most favorably to that party. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). The court does not weigh direct evidence of a genuine issue of fact that a party adduces against the movant's evidence, but submits it to the trier of fact for resolution. Ibid. In this case, plaintiff has raised a genuine issue of material fact about whether defendants' asserted reason for terminating him was merely pretext, and thus whether discrimination was the real reason. See St. Mary's Honor Center v. Hicks, 409 U.S. 502, 511 & n. 4 (1993).
2. Plaintiff has made out a prima facie case of age discrimination.
The Fair Employment and Housing Act prohibits discrimination in employment against persons over the age of 40. Cal. Gov't. Code §12941(a). California courts have interpreted this section in accordance with federal interpretation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq. Breitman v. May Company California, 37 F.3d 562, 565 (9th Cir. 1994), citing Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal.App.3d 1394, 245 Cal.Rptr. 606, 609. Age Discrimination in Employment claims are analyzed under the same standard used to analyze claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e through 20003-17. Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1436 (9th Cir. 1990).
As defendants point out, the plaintiff must establish a causal connection between his protected status and the adverse employment decision. Mixon v. Fair Employment and Housing Comm'n, 192 Cal.App.3d 1306, 1319, 237 Cal.Rptr. 884 (1987). This causal connection may be proved by establishing facts that create an inference of discrimination or by a showing of actual bias against complainant's group, or by other competent evidence. Ibarbia v. Regents of the University of California (1987) 191 Cal.App.3d 1318, 1328, 237 Cal.Rptr. 92, citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the well-known burden-shifting test to determine whether the plaintiff has evidence that raises an inference of discrimination, the
plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.
Id., at 1436-1437 (internal quotation marks omitted); see Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
The plaintiff establishes a prima facie case of age discrimination by showing (1) that he belonged to a protected class; (2) that he was performing satisfactorily in the position; (3) that he was discharged; and (4) that he was replaced by a substantially younger employee with equal or inferior qualifications. Breitman v. May Company, supra, 37 F.3d at 565. In this case, plaintiff was over the age of 40 years. He had never been disciplined because of his work performance. He was discharged and replaced by employees thirty-one and a thirty-four years old. He therefore has stated a prima facie case of age discrimination.
3. Plaintiff may show that the asserted reason for terminating him was mere pretext.
The fact that defendants have offered evidence of a legitimate, nondiscriminatory reason for plaintiff's discharge does not entitle them to summary judgment. Plaintiff may still produce admissible evidence raising a triable issue of fact material to defendants' showing. Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 203, 48 Cal.Rptr.2d 448. To survive summary judgment, plaintiff need not prove that the articulated reason is pretextual but only "tender a genuine issue of material fact as to pretext." Mundy v. Household Finance Corp. (1989) 885 F.2d 542, 546 (9th Cir. 1989). He must produce only enough evidence to allow a reasonable fact-finder to conclude that the true reason for his discharge was a discriminatory one. Nidds v. Schindler Elevator Corp., 103 F.3d 854, 859 (9th Cir. 1996), citing St. Mary's Honor Center v. Hicks, supra, 409 U.S. at 511. The fact-finder's disbelief of the defendant's reasons, together with the elements of the prima facie case, may show intentional discrimination. Ibid.
Defendants mis-paraphrase Nidds and Hicks to argue that, besides showing that the defendant's stated reason was pretext, plaintiff must put forth independent evidence of discrimination. In fact, Hicks made clear that a showing of pretext alone satisfies the plaintiff's burden of producing evidence even though it does not necessarily satisfy the burden of proof. Id., 409 U.S. at 511. Acting as trier of fact, the Hicks trial court found the defendant's stated reason for discharge to be pretextual, but nonetheless found that the plaintiff had failed to carry his burden of proof. Affirming, the Supreme Court held that, although the plaintiff may have met its burden of producing evidence, the trier of fact could find that he had not met his burden of proof. Id., at 511-512.
The Hicks court decided that "the construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in the factfinding process." Caldwell v. Paramount Unified School District, supra, 41 Cal.App.4th at 202. A presumption does not shift the burden of proof, and the plaintiff bears the ultimate burden of persuasion of discrimination. Hicks, supra, 509 U.S. at 512. As a result, a finding of pretext does not compel a finding of discrimination. Ibid.
The Court nonetheless affirmed that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . ." Id., at 511 (emphasis in original). Thus, even though the plaintiff must show "both that the reason was false and that discrimination was the real reason, . . . rejection of the defendant's proffered reason is enough at law to sustain a finding of discrimination." Id., at 511 n. 4 (emphasis in original). Under Hicks, a showing of pretext remains sufficient to sustain the plaintiff's legal burden, although it may or may not sustain the plaintiff's factual burden. Defendants cite Nidds as stating that the plaintiff must offer evidence of both pretext and discrimination, but Hicks made clear that the plaintiff may prove discrimination through evidence of pretext. Id., at 511 & n. 4. Defendants have confused plaintiff's legal burden of production and his factual burden of proof. Because the issue on summary judgment is whether the defendant is entitled to judgment as a matter of law, the court cannot decide whether the plaintiff has met his burden of proof.
The plaintiff meets the burden of showing that the proffered reason was pretextual either by persuading the court that a discriminatory reason more likely motivated the employer or by showing that the employer's proffered explanation is unworthy of credence. Samarzia v. Clark County, 859 F.2d 88, 91 (9th Cir. 1988), mod. o.g. 866 F.2d 1185 (9th Cir. 1989). In this case, defendants' explanation of the termination is simply not worthy of credence. Plaintiff had never taken sick leave before, and he thought that defendant Jones was asking him to complete the exception cards to allow him to take sick leave. Once plaintiff filled out the time cards, defendant Green signed them, although he had authorized plaintiff's partial absence during the days in issue. Plaintiff explained to those investigating the alleged discrepancy that he thought that was the proper way to take sick leave. Plaintiff has therefore raised enough evidence to allow a reasonable juror to conclude that defendants' proffered reason for plaintiff's termination is pretext, and defendants are not entitled to judgment as a matter of law.
CONCLUSION
Plaintiff has met his prima facie case by showing that he was terminated and replaced by a significantly younger employee. He has met his burden of showing that defendants' proffered reason for the discharge is pretextual. It is now up to the trier of fact to determine whether plaintiff has met his burden of proving that Groceries, Ltd. discriminated against him because of his age. Defendant's motion for summary judgment should be denied.