The Mcdonnell Douglas Test

Under the McDonnell Douglas test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792), the plaintiff must first establish a prima facie case of discrimination by showing (1) she is a member of a protected class, (2) she was qualified for the position she held or was attempting to obtain, (3) she either lost her job or promotion and (4) some other circumstance, such as the fact the job in question was given to someone who was not in a protected class or remained open, suggests a discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 at p. 355.) At trial, once the plaintiff has established a prima facie case of discrimination, a presumption of discrimination arises and the employer has the burden of showing there were legitimate, nondiscriminatory reasons for its employment action. (Id. at p. 356.) However, if the employer meets that burden, "the presumption of discrimination disappears." (Ibid.) At that point the plaintiff must then "have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Ibid.) Importantly, the ultimate burden of persuasion "on the issue of actual discrimination remains with the plaintiff." (Ibid.) In Guz the court found in the context of a motion for summary judgment, and notwithstanding the plaintiff's prima facie case, an employer's evidence of lawful reasons for its decision about the plaintiff must be met by substantial contrary evidence of discrimination. The court stated: "Even where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer's proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff's favor. . . . 'Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. . . . .Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case . . . .' Summary judgment for the employer may thus be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at pp. 361-362.) In Guz the plaintiff alleged he was terminated from his employment because of his age. In making a motion for summary judgment, his employer offered evidence plaintiff's work unit was eliminated and its tasks were transferred to another office. The employer also offered unrebutted testimony that in selecting certain members of the discontinued unit for transfer to the new unit and in filling other open positions in the new unit, the employer had done so based on supervisors' assessments of the retained employees' particular skills and not on the basis of their age. In response to this motion, the plaintiff offered evidence most of the employees who were not transferred from the discontinued unit were older than the two employees who were transferred and that two of the three vacant positions in the new unit were filled with younger employees of the company. Because the employer had presented a strong, credible case, the plaintiff's dismissal was for reasons unrelated to age, and the inferences to be drawn from the data he relied upon were relatively weak, the court in Guz found the employer was entitled to summary judgment. (Guz, supra, 24 Cal.4th at pp. 369-370.)