In Schechner v. KPIX-TV, No. 11–15294, 2012 WL 1922088 (9th Cir. May 29, 2012), the Ninth Circuit Court of Appeals held that a plaintiff may establish a prima facie case of disparate treatment age discrimination using statistical evidence, even where that evidence does not account for a defendant’s legitimate non-discriminatory reasons for the adverse employment action.  However, the court found the plaintiffs’ statistical evidence insufficient to demonstrate that the defendant’s proffered reasons for the adverse employment action were pretextual.

The plaintiffs in Schechner were two general assignment news reporters, ages 47 and 66, who alleged that the television station KPIX-TV discriminated against them on the basis of age and gender under California law when the station laid the reporters off as part of a reduction in force (“RIF”).  KPIX-TV contended that the plaintiffs were selected for the RIF, which was the result of a budget cut, based on when the station’s general assignment reporters’ contracts expired.  According to KPIX-TV, it excluded specialty reporters and news anchors from consideration in the RIF.

Plaintiffs’ statistician concluded that the individuals terminated in the RIF were, as a group, older than the group of employees not laid off, and that the disparity between the two groups was statistically significant.  However, plaintiffs’ expert acknowledged that his analyses did not exclude news anchors from the group of employees subject to layoffs and did not account for employees’ contract expiration dates.  In other words, the plaintiffs’ expert report did not account for the decision-making process that KPIX-TV contended it followed.

The district court granted summary judgment for KPIX-TV on the ground that the plaintiffs failed to establish a prima facie case of age discrimination because their statistical evidence did not account for the defendant’s proffered legitimate non-discriminatory reason for discharge.

The Ninth Circuit disagreed with the district court, holding that “a plaintiff who submits statistical evidence that shows a stark pattern of age discrimination establishes a prima facie [case] at step one of the McDonnell Douglas framework.”  The court went on to hold that “statistical evidence does not necessarily fail to establish a prima facie case because it does not address the employer’s proffered non-discriminatory reasons for the discharge.”  The Ninth Circuit made clear, however, that it did “not hold that any statistical evidence of disparate treatment, regardless of its strength, will be sufficient to establish a prima facie case.”

Despite finding that plaintiffs satisfied the prima facie burden, the court ultimately affirmed the district court’s grant of summary judgment for KPIX-TV on the ground that plaintiffs did not carry their burden under the third step of the McDonnell Douglas analysis, which requires that a plaintiff prove that the employer’s legitimate, non-discriminatory reasons for its adverse employment action are pretextual.  In addition, the Ninth Circuit made clear that use of statistical evidence does not per se establish a prima facie case of disparate treatment age discrimination.