Circumstantial Evidence

No Trial Needed: Ninth Circuit Confirms Summary Judgment Appropriate Where Discrimination Plaintiff Can’t Rebut Legitimate Business Reasons

Employers faced with discrimination claims must determine if summary judgment is a viable means to dispose of those claims. A recent Ninth Circuit decision provides some additional ammunition for employers moving for summary judgment going forward.

In affirming summary judgment on August 16, 2017, the Court in Merrick v. Hilton Worldwide, Case No. 14-56853, 2017 WL 3496030, held that “context is key when a plaintiff alleges age discrimination based on circumstantial evidence” and, on the facts before it, affirmed summary judgment for the employer. Id. at *8. Plaintiffs fond of quoting the standard for summary judgment articulated in Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) – which held that a plaintiff in an employment discrimination case needs to produce “very little evidence” to defeat summary judgment – will need to contend with the more nuanced picture of summary judgment requirements that Merrick paints.

In Merrick, Plaintiff alleged that his employment was terminated in violation of the California Fair Employment and Housing Act (“FEHA”) when he was laid off as part of a reduction-in-force, allegedly because of his age.  After concluding that Plaintiff had established a prima facie case and that Hilton produced evidence that it terminated Plaintiff’s employment for legitimate, non-discriminatory business reasons, the Court found that Plaintiff failed to produce sufficient evidence to allow a jury to conclude that age was a “substantial motivating factor” in the decision, i.e., that Hilton’s reasons for termination were false or the true reason for the termination decision was discriminatory.  Specifically, “the evidence as a whole [was] insufficient to permit a rational inference that the employer’s actual motive was discriminatory” considering the substantial evidence the employer tendered supporting the business justification for his selection:

  • lost profits during a preceding economic downturn
  • a series of layoffs over several years, the overall age of the workforce
  • the fact that Plaintiff survived previous layoffs despite having also been a member of a protected class at the time of those layoffs, and
  • the business reasons for selecting his position for elimination.

Faced with this evidence, the Merrick court emphasized that a plaintiff “must do more than establish a prima facie case and deny the credibility of [the employer’s] witnesses”; if she does nothing more, summary judgment should be granted. Merrick, 2017 WL 3496030, at *5.

In affirming summary judgment, the Merrick court cited to a line of Ninth Circuit cases – Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000), Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996); and Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994) – that had affirmed summary judgment where a plaintiff failed to adduce adequate proof of pretext.  This contrasts with the Chuang line of cases that could be read to suggest that less is required of plaintiff.

The Merrick decision thus underscores that the summary judgment standard for discrimination cases in the Ninth Circuit is not as lax as some plaintiffs may suggest. Merrick‘s analysis was predicated on the familiar McDonnell-Douglas burden-shifting framework—which the Court held applied to state law discrimination claims under FEHA just as it would to federal Title VII claims—and thus has implications for any claims in federal court analyzed under that framework.