CalEmployeeRights

Direct Evidence of Age Animus Not Enough To Show Decision Makers Were Influenced

       In a 2-1 unpublished decision, in Adam v. Kempthorne (9th Cir. 2008) 04-17458, the Ninth Circuit upheld the lower court's decision rejecting plaintiff scientists' Age Discrimination in Employment Act ("ADEA") and other federal claims against the U.S. Geological Survey ("USGS") where direct evidence of age-based animus permeated the work environment.  Some of the evidence from the record included the following:

* The Director of the USGS, Dr. Gordon Eaton, asking an audience, "What is the difference between Jurassic Park and the Geological Division of the Geologic Survey?"and responding with the answer, "One is an amusement park filled with dinosaurs and the other is a movie."

* A poster about a meeting to discuss the USGS' workforce reduction with a cartoon caption stating "You gotta help me, Mom...This assignment is due tomorrow, and Gramps doesn't understand the new tricks." Click on the graphic to the right to see this poster.

* A 1993 official report explaining the USGS' "Vision for the 21st Century" describing that "[s]ome segments of the USGS currently are suffering from an aging, high-grade workforce", which is "a critical problem that must be addressed...."

What Does It Take To Establish Pretext? Not That Much

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.