Godwin v. Hunt Wesson, Inc.
The Ninth Circuit reconciled its two competing lines of pretext authority: direct evidence of discriminatory motive — even “very little” of it — defeats summary judgment by itself, while circumstantial evidence must be “specific” and “substantial”; a passed-over saleswoman who produced both was entitled to a trial.
Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217
Federal authority — with subsequent development. A Ninth Circuit panel decision binding in the federal courts of the circuit and persuasive (not binding) in California state courts, where it matters because the plaintiff’s claim arose under the FEHA itself. Note: later Ninth Circuit authority has questioned the continued vitality of Godwin’s “specific and substantial” requirement for circumstantial evidence after Desert Palace, Inc. v. Costa (2003) 539 U.S. 90 — a development the Ninth Circuit itself flagged in Earl v. Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108, 1113. See the Significance section below before relying on that branch of the holding.
Discrimination
FEHA — sex discrimination / failure to promote
Pretext: direct vs. circumstantial evidence
Summary judgment reversed
In brief. A nine-year Hunt Wesson saleswoman was passed over for two marketing manager positions in favor of male candidates, and sued under the FEHA. The district court granted the employer summary judgment after demanding “substantial direct evidence” of discrimination at the pretext stage. The Ninth Circuit reversed, holding that ruling “conflates the standards” for “two different types of evidence — circumstantial and direct”: a plaintiff with direct evidence “need produce very little evidence of discriminatory motive to raise a genuine issue of material fact,” while circumstantial evidence of pretense must be “specific” and “substantial.” (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1220–1222.) Godwin had both — a decisionmaker’s reported statement that his colleague “did not want to deal with another female,” and an employer explanation missing from the contemporaneous record.
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
Marsha Godwin had been a member of the Hunt Wesson sales force for nine years when two marketing manager positions opened in the Rosarita and Wesson brands division. (Godwin, supra, 150 F.3d at p. 1219.) The vacancies arose in a telling sequence: Alcy Grimes — “the most senior female executive for the defendant” — resigned as senior marketing manager for the Wesson brand; Jim Ruschman, the Rosarita marketing manager, took her position, opening his own; and Ruschman persuaded Ron Guthier, the Director of Marketing, to create an additional Wesson marketing manager position to assist him. Godwin applied for both open positions. (Ibid.)
Guthier and Ruschman had primary responsibility for selecting the candidates. They considered Godwin and Jim Rossi for the Wesson position, and Godwin and Mark Smith for the Rosarita position, and “selected the male candidates over Godwin for both jobs.” (Godwin, supra, 150 F.3d at p. 1219.) The employer offered facially nondiscriminatory explanations — the men’s “better experience and more ‘easygoing’ personalities” — but Godwin contended she had direct and circumstantial evidence that the two men wanted the positions to go to males. (Id. at pp. 1219–1220.) Her evidence included the geography of the promotion itself: the selected candidates would reside on the “almost all-male 10th floor,” where the only female marketing manager, Louise De PreFontaine, “had caused dissension among the all-male employees.” (Id. at p. 1219.)
Godwin sued for general and punitive damages for gender discrimination in employment under the California Fair Employment and Housing Act. (Godwin, supra, 150 F.3d at p. 1219.) The claim was thus a state-law FEHA claim litigated in federal court — a point that matters to how the decision travels: “Because California law under the FEHA mirrors federal law under Title VII, federal cases are instructive.” (Ibid., citing Bradley v. Harcourt, Brace & Co. (9th Cir. 1996) 104 F.3d 267, 270, and Clark v. Claremont Univ. Ctr. & Graduate Sch. (1992) 6 Cal.App.4th 639, 662.)
Procedural history
The United States District Court for the Central District of California granted the employer’s summary judgment motion, “holding that the plaintiff did not offer sufficient evidence that the employer’s conduct was discriminatorily motivated” — and, more specifically, requiring Godwin “to present substantial direct evidence of discrimination at the pretext stage.” (Godwin, supra, 150 F.3d at pp. 1219–1220.) The Ninth Circuit reviewed de novo and reversed, remanding with each side to bear its own costs on appeal. (Id. at pp. 1219, 1222.) The opinion was amended August 31, 1998, shortly after filing.
The panel opened by acknowledging the doctrinal muddle it was resolving: “The issue in this case is a familiar one: what showing of pretext by a plaintiff in a sex discrimination suit is sufficient to overcome a defendant’s motion for summary judgment,” an issue “that has troubled the courts in their endeavors to follow the Supreme Court’s decisions in this field” — citing St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, and quoting the Seventh Circuit’s concession that “[t]he federal courts . . . have not been entirely clear on what constitutes a showing of pretext.” (Godwin, supra, 150 F.3d at p. 1219.)
Issue
At the third, “pretext” stage of the McDonnell Douglas framework, what quantum and quality of evidence must a plaintiff produce to create a triable issue as to the employer’s true motivation — and, in particular, was the district court correct to demand evidence that was simultaneously direct and substantial? (Godwin, supra, 150 F.3d at p. 1220.)
Holding
Reversed. Requiring “substantial direct evidence” at the pretext stage “is incorrect for it conflates the standards we have articulated for two different types of evidence — circumstantial and direct.” (Godwin, supra, 150 F.3d at p. 1220.) The circuit’s “apparently differing standards . . . are reconcilable, for they depend upon the nature of the plaintiff’s evidence”: “When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial” — it “need be ‘very little.’” (Id. at p. 1221.) Where direct evidence is unavailable, circumstantial “evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate.” (Id. at p. 1222.) Godwin satisfied both branches — direct evidence of gender animus by the decisionmakers, and specific, substantial inconsistencies between the employer’s litigation explanations and its contemporaneous records — so summary judgment should not have been granted. (Id. at pp. 1221–1222.)
Reasoning
The framework, and a deliberately low prima facie bar. The court rehearsed the three-step McDonnell Douglas allocation: a prima facie case that “gives rise to an inference of unlawful discrimination” (Burdine); the employer’s articulation of nondiscriminatory reasons; and the plaintiff’s showing of pretext, with the ultimate burden of persuading the trier of fact remaining always on the plaintiff (St. Mary’s). (Godwin, supra, 150 F.3d at p. 1220.) The prima facie threshold “is minimal and does not even need to rise to the level of a preponderance of the evidence.” (Ibid., quoting Wallis v. J.R. Simplot Co. (9th Cir. 1994) 26 F.3d 885, 889.) Godwin “unquestionably” cleared it: protected class, satisfactory performance, adverse action, and similarly qualified employees treated more favorably; and Hunt Wesson answered with its experience-and-personality explanation. (Ibid.)
Diagnosing the conflict in circuit law. The heart of the opinion is its candid audit of two divergent lines of Ninth Circuit authority at step three. One line — Lindahl v. Air France (9th Cir. 1991) 930 F.2d 1434, 1438, and its progeny — said the plaintiff “need produce very little evidence of discriminatory motive to raise a genuine issue of material fact.” (Godwin, supra, 150 F.3d at p. 1220.) The other — Bradley, Collings, Wallis, Steckl — said the plaintiff must produce “specific, substantial evidence of pretext.” (Id. at p. 1221.) Rather than choose, the court harmonized: “These apparently differing standards, however, are reconcilable, for they depend upon the nature of the plaintiff’s evidence.” (Ibid.) Direct evidence — “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption” (ibid., quoting Davis v. Chevron, U.S.A., Inc. (5th Cir. 1994) 14 F.3d 1082, 1085) — creates a triable issue “even if the evidence is not substantial.” Circumstantial evidence, by contrast, must be “specific” and “substantial” because it asks the factfinder to infer pretense. (Id. at pp. 1221–1222.)
Applying the direct-evidence branch. Godwin presented a statement by Ruschman to Hunt Wesson’s national sales manager that Guthier “did not want to deal with another female after having dealt with . . . Louise De PreFontaine.” (Godwin, supra, 150 F.3d at p. 1221.) “This comment directly suggests the existence of bias and no inference is necessary to find discriminatory animus.” (Ibid.) The court then dispatched the employer’s three counters. Hearsay: an admission by an agent within the scope of employment is admissible, and multiple hearsay is admissible “if each of the speakers was involved in the employer’s decision.” (Ibid., citing Breneman v. Kennecott Corp. (9th Cir. 1986) 799 F.2d 470.) Involvement: whether the sales manager participated in the decision “is for the trier of fact to resolve.” (Ibid.) Stray remark: unlike comments “uttered in an ambivalent manner and [is] not tied directly to [the plaintiff]’s termination” — the Merrick/Nesbit/Nidds genre of “We don’t necessarily like grey hair” and “old timers” — “Ruschman’s comment was not ambivalent and it is related directly to the positions that Godwin sought.” (Ibid.) The record held more: Grimes testified that during a sales-meeting presentation she was handed a “Barbie doll kit” containing two dildos and a bottle of Wesson oil, and that the company sponsored hunting and fishing trips that no women attended; Godwin testified the company president made derogatory comments about women at meetings. “In sum, Godwin’s direct evidence of discriminatory animus satisfies the required showing at the pretext stage.” (Ibid.)
Applying the circumstantial branch. Independently, Godwin showed “substantial evidence of the unreliability of the reasons proffered by the employer.” (Godwin, supra, 150 F.3d at p. 1222.) All of the evidence supporting the employer’s reasons came from statements, depositions and declarations “prepared after the employment decision was made and while this litigation was in progress” — which “alone is not disqualifying,” since “[s]imply because an explanation comes after the beginning of litigation does not make it inherently incredible” (ibid., quoting Lindahl, supra, 930 F.2d at p. 1438) — but here the contemporaneous record contradicted the litigation account in material ways. Although the declarations made “creativity” the most important selection criterion, “the criterion of ‘creativity’ does not appear in the contemporaneous memorandum prepared at the time of the selection”; and while “shifting explanations are acceptable when viewed in the context of other surrounding events . . . such weighing of the evidence is for a jury, not a judge.” (Ibid., quoting Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080.) The review notes in fact described Godwin as “creative” and as getting along well with others; the only negative personality references concerned an inability to get along with persons on the “tenth floor” — and “[b]ecause all of the marketing executives were male with only one exception, we cannot assume those generic negative references are necessarily gender neutral.” (Ibid.) Finally, one of the chosen men had received poor personality evaluations, and facts suggesting the chosen applicant “may not have been the best person for the job” are probative because they “suggest that [the explanation] may not have been the real reason for choosing [the chosen applicant] over the [plaintiff].” (Ibid., quoting Lindahl, at p. 1439.)
Conclusion. “Godwin’s indirect evidence of discriminatory motive, as well as her direct evidence was sufficient to raise genuine issues of fact as to whether Hunt Wesson’s nondiscriminatory explanations were the true reasons or whether they masked discriminatory motives.” (Godwin, supra, 150 F.3d at p. 1222.)
Significance
Godwin is the canonical statement of the Ninth Circuit’s two-track pretext standard, and its formulation became the working vocabulary of employment summary judgment practice on both sides of the state–federal line. Its structure was promptly restated in Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115, 1127, which distilled it into the now-familiar couplet — pretext shown “(1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ . . . or (2) directly, by showing that unlawful discrimination more likely motivated the employer” — and California’s courts adopted the same federal “specific, substantial evidence of pretext” formulation through Godwin’s companion authority Bradley: see Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (quoting Bradley v. Harcourt, Brace & Co., supra, 104 F.3d at p. 270). Because Godwin itself was a FEHA case, its direct-evidence branch — “very little” suffices — is regularly pressed in California oppositions whenever a decisionmaker’s own words betray bias.
The “Questioned” development. The circumstantial branch has had a rockier career, and candor requires saying so. In Desert Palace, Inc. v. Costa (2003) 539 U.S. 90, the Supreme Court — affirming the Ninth Circuit’s en banc decision — held that a Title VII mixed-motive plaintiff need not produce direct evidence, reasoning that circumstantial evidence is not inherently inferior proof. Ninth Circuit panels then divided over whether a heightened “specific and substantial” gloss for circumstantial pretext evidence survives that premise. The court itself has acknowledged the doubt: in Earl v. Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108, 1113, the panel recited Godwin’s standard while immediately adding a “But see” citation to Cornwell as “questioning the continued viability of Godwin after Desert Palace,” and observed that the standard “is ‘tempered’ by our observation that a plaintiff’s burden to raise a triable issue of pretext is ‘hardly an onerous one.’” California state courts, for their part, have continued to apply the “specific” and “substantial” formulation as a matter of state summary judgment practice, so the debate matters mainly to the emphasis — not the existence — of the plaintiff’s step-three burden.
Key quotes
“These apparently differing standards, however, are reconcilable, for they depend upon the nature of the plaintiff’s evidence. When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” (Godwin, supra, 150 F.3d at p. 1221.)
“Such evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.” (Godwin, supra, 150 F.3d at p. 1222.)
“[S]hifting explanations are acceptable when viewed in the context of other surrounding events. . . such weighing of the evidence is for a jury, not a judge.” (Godwin, supra, 150 F.3d at p. 1222, quoting Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080.)
“Because California law under the FEHA mirrors federal law under Title VII, federal cases are instructive.” (Godwin, supra, 150 F.3d at p. 1219.)
Practice pointer
For plaintiffs opposing summary judgment, Godwin supplies both a sorting rule and a proof template. Sort your evidence first: anything that “proves the fact [of discriminatory animus] without inference or presumption” — a decisionmaker’s own biased words about the position or the plaintiff’s group — goes in the direct-evidence column, where “very little” is enough and the employer’s admissibility objections (hearsay, non-decisionmaker, stray remark) are usually themselves fact questions. (Godwin, supra, 150 F.3d at p. 1221.) Then build the circumstantial column the way Godwin did: obtain the contemporaneous selection or termination documents in discovery and lay them against the employer’s litigation declarations — a criterion that first appears in a declaration prepared for the motion is a specific, substantial inconsistency, and comparative weakness in the chosen candidate compounds it. (Id. at p. 1222.) Anticipate the employer’s reliance on the stray-remarks cases by tying every biased comment to the decisionmakers, the decision, or the position at issue. For defendants, Godwin teaches that the “specific and substantial” formulation is not a safe harbor when the paper trail is inconsistent — and after Cornwell and Earl, quoting Godwin’s standard without acknowledging its “tempered” application invites correction. In California state court, cite the parallel state formulation (Horn, supra, 72 Cal.App.4th at p. 807) rather than assuming Godwin binds.
Open questions
Godwin announced its two-track rule without addressing how the tracks interact — whether direct and circumstantial evidence, each insufficient alone, can be aggregated at step three. (Chuang later answered yes, treating the approaches as non-exclusive and looking to “cumulative evidence.” (Chuang v. University of California Davis, supra, 225 F.3d at p. 1127.)) It did not define how much context strips a remark of “stray” status, resolving the question here on the comment’s direct tie to “the positions that Godwin sought” without a general test. (Godwin, supra, 150 F.3d at p. 1221.) It predates Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, and therefore never addressed whether prima facie evidence plus disbelief of the employer’s explanation can alone carry the plaintiff — the proposition Reeves confirmed and Chuang integrated into circuit law. And the largest open question is the one its “Questioned” signal reflects: whether the “specific and substantial” gloss for circumstantial evidence remains good law after Desert Palace’s teaching that circumstantial proof is not second-class evidence — a question the Ninth Circuit has managed by tempering rather than resolving (Earl, supra, 658 F.3d at p. 1113), and one that counsel should treat as unsettled until the court says otherwise en banc.