Navigating — continued from Previous Page
nondiscriminatory reason for the chal- lenged action. (Id. at 355-356.) If the defendant succeeds at that second stage, the presumption of discrimination disap- pears from the case and the burden shifts back to the plaintiff to show the defense’s “legitimate” reason is really a pretext. This process has been colorfully described as “the ‘pretext’ tail [wagging] the whole anti-discrimination dog.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 [16 Cal.Rptr.3d 717].) To show an employer’s “legitimate”
reason is false or pretextual, “‘[an employee] cannot simply show that the employer’s decision was wrong or mistak- en.’” (Hersant v. Department of Social
Services (1997) 57 Cal.App.4th 997 [67 Cal.Rptr.2d 483].) This is because the fac- tual dispute at issue is whether discrimina- tory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. (Ibid.) Therefore, to overcome the alleged “legitimate, non- discriminatory reason,” the employee “must demonstrate such weaknesses, implausibilities, inconsistencies, inco- herencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them “unworthy of credence,” . . . and hence infer “that the employer did not act for the [asserted] nondiscriminatory reasons.” [Citations.] ...’ [Citations.]” (Ibid.)
For example, showing that the
employer’s purported explanation changed over time (between the original incident and the time of depositions); showing that similarly situated employ- ees not of the race or sex of the plaintiff did the same actions but were treated differently; and, in retaliation cases, showing that there is a close proximity in time between the employee’s protect- ed action and the allegedly retaliatory employment decision have all been rec- ognized as sufficient to defeat a defen- dant’s claim of “legitimate” reason for its action. As the foregoing suggests, pretext
can be shown in multiple ways and, of course, is case specific.
The evidence does not show the decision-maker harbored retaliatory animus. A favorite recurring theme raised by
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defense counsel is that plaintiff cannot show that the person who made the key adverse employment decision harbored retaliatory animus against the plaintiff. But this is not the proper test. As long as a plaintiff “can establish that retaliatory animus on the part of one or more con- tributors to the decision was a substantial contributing factor in bringing about his dismissal,” it would not matter that the decision-maker did not personally harbor that animus. (Reeves, supra, 121 Cal.App.4th at 113.) To illustrate why this holding is both
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logical and necessary, Reeves posited a hypothetical. The court began by assum- ing that a supervisor, “annoyed by a work- er’s complaints about [unlawful conduct] might decide to get rid of that worker by, for instance, fabricating a case of miscon- duct, or exaggerating a minor instance of misconduct into one that will lead to dis- missal.” (Reeves, supra, 121 Cal.App.4th at 108.) Next, the court assumed that a dif- ferent manager “accepting the fabricated case at face value may decide, entirely without animus,” to discharge the worker. (Ibid.) The court concluded that “[i]t would be absurd to say that the plaintiff in such a
See Navigating, Page 66
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