Clark v. Claremont University Center

Facts

FEHA and Title VII both “prohibit employers from discharging or otherwise discriminating against a person on the basis of race in compensation, terms, conditions, or privileges of employment,” and although the state and federal schemes “differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of the state statute.” (Clark, supra, 6 Cal.App.4th at p. 662; Gov. Code, § 12940, subd. (a).) The dispute arose from a tenure denial at Claremont Graduate School, where a candidate is evaluated successively by the department, an interdepartmental Appointments, Promotions, and Tenure (APT) Committee, and the administration, with the board of fellows holding ultimate authority. (Id. at pp. 643–645.)

Reginald Clark, hired in 1979, was the school’s first and only Black faculty member during his tenure and would have been its first tenured minority professor had tenure been granted. (Clark, supra, 6 Cal.App.4th at pp. 646, 656.) His department chair had told him at hiring he could expect tenure in three or four years if his book was published, and helped him craft a publication “gameplan.” (Id. at pp. 646, 653–654.) Clark published a book with the University of Chicago Press, described by outside reviewers as “a major breakthrough and benchmark in the field,” and all five external scholars recommended tenure. (Id. at pp. 650–651.) The trial record was studded with explicitly racial conduct: a department chair told Clark to “pass the dinner rolls, ‘boy’”; a colleague called him “Calhoun,” a stereotypical Black character; and during a departmental tenure meeting Clark overheard one professor say, “us white people have rights too,” and another say he did not know how he “would feel working on a permanent base [sic] with a black man.” (Id. at pp. 648–649, 652–653.) The department recommended tenure five-to-three, but the APT Committee voted against Clark four-to-one, and President Maguire — after an investigation in which one professor admitted the “us white people have rights, too” remark — upheld the denial. (Id. at pp. 643, 655–657.)

Procedural history

Clark filed a FEHA action alleging disparate treatment and disparate impact. (Clark, supra, 6 Cal.App.4th at pp. 658–659.) The first trial ended in a mistrial; at the second, the court directed a verdict against the disparate-impact theory, leaving only disparate treatment. (Id. at p. 660.) The jury found Claremont liable, awarded $1 million in compensatory damages and $16,327 in punitive damages, and the court awarded attorney fees of $419,633.13. (Id. at pp. 643, 661.) The trial court denied Claremont’s motions for new trial and judgment notwithstanding the verdict. (Id. at p. 661.) The Court of Appeal affirmed and awarded Clark costs and fees on appeal. (Id. at pp. 643, 670.) The opinion is certified for partial publication: only Part I (sufficiency of the evidence) is published; parts II through VII — addressing instructional error, evidentiary rulings, the jury-trial right, and the damage and fee awards — are unpublished and not citable under California Rules of Court, rule 8.1115. (Id. at p. 639 [notice]; id. at pp. 661, 669.)

Issue

The published issue was whether substantial evidence supported the jury’s finding that Clark was denied tenure because of his race, and, embedded in that inquiry, two recurring questions of FEHA proof: (1) what causation standard governs a disparate-treatment claim, and (2) whether a plaintiff challenging a tenure denial reached through several layers of review must prove discriminatory intent at each layer. (Clark, supra, 6 Cal.App.4th at pp. 661–662, 665–666.)

Holding

Reasoning

The McDonnell Douglas framework governs FEHA disparate treatment. Because direct evidence of intent is usually lacking, the court applied the federal three-stage allocation of proof: the plaintiff establishes a prima facie case; the employer articulates a legitimate, nondiscriminatory reason; and the plaintiff proves that reason a pretext. (Clark, supra, 6 Cal.App.4th at pp. 662–664.) The employer’s burden is one of production only — “the burden of persuasion never shifts to the employer; it remains at all times with the employee” — and articulating a legitimate reason “is significantly less than proving the absence of discriminatory motive.” (Id. at pp. 663–664.) In tenure cases the fourth prima facie element is relaxed: it may be satisfied “by showing that tenure positions ‘were open at the time plaintiff was denied tenure, in the sense that others were granted tenure in the department during a period relatively near to the time plaintiff was denied tenure.’” (Id. at p. 663, fn. 5.)

Causation: pretext as “but for,” animus need not be sole. The court anchored its causation standard in McDonnell Douglas and McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, explaining that “pretext” refers to “‘but for’ causation,” and that the employee “need not show ‘he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies.’” (Clark, supra, 6 Cal.App.4th at p. 665.) The synthesis the court adopted from Mixon v. Fair Employment & Housing Com. is the line most often cited from Clark: “while a complainant need not prove that racial animus was the sole motivation behind the challenged action, he must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.” (Ibid.) The practical meaning is that mixed motives do not defeat liability so long as race was a determinative cause.

The infection theory: discrimination at one stage taints the whole. The court’s signature contribution addresses multilevel decisionmaking. Adopting the reasoning of Roebuck v. Drexel University (3d Cir. 1988) 852 F.2d 715, it held that a tenure plaintiff “‘need not prove intentional discrimination at every stage of the review process,’” because even where each evaluator performs a de novo review, “‘at each stage of the process the evaluator had available and considered the reports and recommendations of each previous evaluator,’” so “‘it plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision.’” (Clark, supra, 6 Cal.App.4th at pp. 665–666.) Applied to the facts, the jury could find that Chairman Briner gave Clark a “discriminatory review” on publications and “misled Clark by describing publication requirements that were more lenient than the ones [he] ultimately applied,” and that this discriminatory rating “carried over into the APT Committee’s proceedings and tainted that determination as well.” (Id. at pp. 666–668.) The court explained that the tenure process “is not compartmentalized,” with the departmental review the “most significant step,” laying groundwork the later levels expressly relied upon. (Id. at pp. 668–669.)

The president’s independent review did not cleanse the process. Claremont argued that the discriminatory remarks came only from education-faculty members, not the APT Committee or President Maguire, and that Maguire’s investigation broke any causal chain. The court rejected the argument as a matter of law: “Clark is not required to prove intentional discrimination at each level of the review process.” (Clark, supra, 6 Cal.App.4th at p. 668.) Although Maguire had an “impressive record of civil rights activism,” the record permitted an inference that he “intentionally ignored substantial evidence of discrimination at the most critical juncture . . . and simply rubber stamped the APT Committee’s decision which was also infected by discrimination,” particularly given impeachment of his shifting testimony about the “us white people have rights, too” remark. (Id. at pp. 669–670.)

The catalogue of evidence the jury could weigh. The court grounded its sufficiency holding in a concrete inventory of proof, useful as a template for what makes a multilevel-discrimination verdict stick. The jury was entitled to rely on “the evidence that Chairman Briner misled Clark concerning publication requirements and gave him a discriminatory review; the conceded remark by Professor Kerchner (‘us white people have rights, too’) who wrote a negative letter to the APT Committee; the evidence that Dreyer’s lukewarm support for Clark before the APT Committee was a subterfuge for discrimination; the statistical evidence that Claremont had never granted tenure to a minority professor; the testimony by other scholars concerning the excellence of Clark’s work . . . ; the granting of tenure to other nonminority professors . . . who had less substantial publishing records; and Claremont’s use of changing, unwritten publication standards to justify its denial of tenure to Clark.” (Clark, supra, 6 Cal.App.4th at p. 668.) Borrowing from Roebuck, the court rejected the notion that each decision is a “‘watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from . . . every other decision,’” reasoning that once an employer “‘discloses a[] . . . race-biased mindset, it is certainly a permissible inference that the mindset is not focused solely on the individual employee.’” (Id. at p. 667.)

The deferential standard of review sealed the verdict. To overturn for insufficiency, the court “would have to find the inferences drawn by the jury wholly inappropriate.” (Clark, supra, 6 Cal.App.4th at p. 669.) Because “different inferences may reasonably be drawn from undisputed evidence,” the jury’s conclusion had to be accepted unless “only one inference could be drawn” or the inference was “conclusively rebutted by other evidence.” (Ibid.) The court distinguished the employer’s age-discrimination authorities (involving corporate reductions in force, not multilevel tenure review) and observed that the case was “unusual, not because of Clark’s claims, but because of Clark’s strong evidence of improper motive.” (Id. at p. 670.)

Significance

Clark is a foundational California authority for two propositions practitioners use constantly. First, its “infection” or “cat’s paw” logic: in any multilevel or multi-actor employment decision — tenure review, progressive discipline, layoff ranking, or a recommendation chain ending with a neutral final decisionmaker — discrimination at one stage can taint the ultimate decision, and the plaintiff need not show bias at every level. Second, its causation formulation, that animus need not be the “sole motivation” so long as it is a “but for” cause, was an important mixed-motive marker for FEHA. A note of doctrinal currency is warranted: the California causation standard later evolved. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the Supreme Court held that a FEHA plaintiff must show the protected characteristic was a “substantial motivating factor,” and recognized a same-decision limitation on remedies — a framework that refines the “but for” language Clark borrowed from the federal cases. Counsel relying on Clark’s causation passage should pair it with Harris. The reader should also keep the publication limit in view: only Part I is citable; the court’s treatment of damages, fees, and instructions in parts II through VII is unpublished.

A final word on McDonnell Douglas at the verdict stage. Clark stresses that the employer’s second-stage burden is one of production only — “the burden of persuasion never shifts to the employer; it remains at all times with the employee” — and that articulating a legitimate reason “is significantly less than proving the absence of discriminatory motive.” (Clark, supra, 6 Cal.App.4th at pp. 663–664.) Once the employer carries that burden, the presumption “‘drops from the case’” and the factfinder decides “‘whether it believes the employer’s explanation . . . or the employee’s.’” (Id. at p. 664.) That is why the deferential substantial-evidence standard proved decisive on appeal: with competing inferences available, the court was bound by the jury’s choice unless it was “wholly inappropriate.” (Id. at p. 669.) The framework structures proof; it does not survive as a rigid screen to verdict, after which the question collapses into ordinary credibility-weighing an appellate court will rarely disturb.

Key quotes

“[W]hile a complainant need not prove that racial animus was the sole motivation behind the challenged action, he must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.” (Clark, supra, 6 Cal.App.4th at p. 665.)

“[I]t plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision.” (Id. at p. 666.)

“President Maguire’s independent investigation and review of Clark’s case does not insulate Claremont from liability as a matter of law.” (Id. at p. 669.)

Read the full opinion (Justia) →

Practice pointer

Open questions

Because the opinion is published only as to sufficiency of the evidence, it expressly does not resolve — in any citable way — the issues litigated in parts II through VII, including the agency and burden-of-proof instructions, the admission of evidence, the right to jury trial, and the propriety of the $1 million compensatory award and the fee award. (Clark, supra, 6 Cal.App.4th at p. 661 [issues]; id. at p. 669 [“Text omitted”].) The decision also predates the modern California causation standard, so it does not address how the “substantial motivating factor” test of Harris v. City of Santa Monica and that case’s same-decision limitation on remedies interact with the “infection” theory — in particular, whether an employer can concede taint at one stage yet limit relief by proving it would have denied tenure anyway. And while Clark holds that a tenure plaintiff need not prove discrimination at each level, it does not delineate how attenuated a biased input may be before a jury may no longer infer that it influenced the final decision; the court emphasized the “strong evidence” before it (id. at p. 670) without marking that outer boundary.