It seems as though half the published discrimination and retaliation cases in California involve the concept of "pretext" under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, or its California iteration, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. For those not familiar with the concept, it's this: the plaintiff in a discrimination or retaliation case based on circumstantial evidence must make a prima facia case that he or she was discriminated or retaliated against, after which the defendant must offer evidence of a legitimate, lawful reason for its action. At that point, the burden shifts back to the plaintiff to show that the employer's stated reason is pretextual.
How much evidence of pretext does the plaintiff need? Maybe not much, according to Mokler v. County of Orange (2007) ___ Cal.App.4th ___ . More after the jump.
Mokler is complicated factually: it was a combination hostile environment case (and there, the Court of Appeal held there was insufficient evidence and the trial court should have granted JNOV) and retaliation case. Mokler was employed by Orange County as executive director of the Office on Aging. She had dated board member of a non-profit Latino charity hoping to do business with her office, and there seems to have been a fair amount of evidence that she was bending rules to advantage the charity. The county fired her for directing a staff member to unfairly benefit the charity with which she had personal ties, for violating bidding policy by crafting a deliberately restrictive invitation for bids, and for insubordination.
Mokler contended that all of this was pretext, and that the real reason she was fired was for blowing the whistle on the county for illegally reorganizing her department (which would have violated California's whistleblower statute, Labor Code section 1102.5).
The Court of Appeal held that the following was substantial evidence to support a finding of pretext (a) Mokler had never received a negative performance review or reprimand; (b) she had received praise for "forging collaborative efforts" with Latino organizations such as the charity that she was now accused of being to close to; and (c) the county never criticized her end-run around the bidding process before she made her complaint of unlawful activity. In other words, it didn't take much. . . .
Comments