Hersant v. Department of Social Services

Facts

The statutory framework. Both federal and state law prohibit employers from discriminating against employees on the basis of age. (Hersant, supra, 57 Cal.App.4th at p. 1002; Gov. Code, § 12941, subd. (a); 29 U.S.C. § 621 et seq.) Government Code section 12941, subdivision (a), makes it unlawful to take adverse employment actions against a person over the age of 40 on the ground of age. (Hersant, supra, at p. 1003, fn. 2.) Although the state and federal age-discrimination statutes “differ[] in some respects, their objectives are identical, and courts of this state have looked to federal law to aid in the interpretation of analogous provisions of California statutes.” (Id. at p. 1002, fn. 1.)

The plaintiff and his demotion. Tom Hersant had worked for the State of California since 1964 and, at the time of the events, held a staff service manager II position as manager of the Department of Social Services’ Carlsbad regional child day-care licensing and monitoring office. (Hersant, supra, 57 Cal.App.4th at pp. 1000–1001.) On June 28, 1994, when he was 52 years old, Hersant was demoted one level and removed as manager of the Carlsbad office. (Id. at p. 1000.) After the demotion, his position was filled by a manager who had 21 years in state civil service and who was 45 years old at the time of his appointment — a man “also over age 40” but “7 years younger than Hersant.” (Id. at pp. 1001, 1006.)

The employer’s stated reasons. The Department’s position was that Hersant was demoted not for his age but for unsatisfactory job performance: it accused him of inefficiency, insubordination, neglect of duty, dishonesty, and misuse of state property. (Hersant, supra, 57 Cal.App.4th at pp. 1000, 1006.) The charges arose from three areas. First, the Department alleged Hersant, without his superiors’ knowledge and contrary to Department policy, artificially inflated his office’s caseload by failing to close at least 468 cases that policy required be closed, instructing staff instead to keep files open and to change the subject facilities’ mailing addresses to that of the Carlsbad office — a practice the Department said corrupted its data base and caused needless expenditure of state funds. (Id. at pp. 1006–1007.) Second, the Department alleged Hersant sent a memo announcing his intention not to follow a policy requiring termination of certain civil penalty proceedings where a district attorney declined to prosecute, with no copy to his supervisor, Davis. (Id. at p. 1007.) Third, the Department alleged Hersant conducted a promotional interview without including a district office manager on the panel as he had been instructed. (Ibid.)

The plaintiff’s rebuttal and his evidence of animus. In opposition, Hersant offered evidence that each stated basis was invalid: there was no Department policy requiring case closures for unpaid fees; his office had a uniquely aggressive fee-collection procedure that identified closures sooner; the address changes were a clerical measure done on staff recommendation and not designed to corrupt statistics; he was unaware the civil-penalty policy had been formally adopted; and he had tried, unsuccessfully, to find a district manager available for the interview panel before proceeding rather than delay. (Hersant, supra, 57 Cal.App.4th at pp. 1007–1008.) Hersant also offered evidence he believed showed age-discriminatory animus: a declaration from Fred Dumont, a former district manager who, at age 59, retired three years early because of supervisor Davis’s alleged harassment and micromanagement, and who noted Davis’s concerns about his hearing and health; and evidence that Davis took no action against another regional manager, Mary Delmast, age 51, whose office had comparable closure deficiencies. (Id. at pp. 1008–1009 & fn. 6.) Dumont and Hersant concluded they were victims of age discrimination after learning Davis and a Department lawyer had inquired into Hersant’s “age and seniority.” (Id. at p. 1008.)

Procedural history

Hersant filed a form complaint on May 3, 1995, against the Department and his immediate supervisor, Davis, alleging he was demoted on the basis of his age in violation of the California Fair Employment and Housing Act. (Hersant, supra, 57 Cal.App.4th at p. 1000.) After answering, the Department moved for summary judgment, arguing the demotion rested on unsatisfactory performance rather than age. (Ibid.) The trial court (Judith McConnell, Judge) granted the motion, finding Hersant “had failed to present evidence that his demotion was based on age discrimination” and concluding that “all of Hersant’s bases for believing he was discriminated against on the basis of age were speculations.” (Id. at p. 1001.) Hersant appealed, contending the existence of triable issues of fact made summary judgment error. (Ibid.) The Court of Appeal affirmed in a unanimous opinion, and the California Supreme Court denied review on January 14, 1998. (Id. at pp. 1009–1010.)

Issue

The decisive question was the showing an employee must make to defeat an employer’s summary-judgment motion in a FEHA age-discrimination case after the employer has come forward with a legitimate, non-age-based reason for the adverse action. As the court framed it, “[t]he exact showing required by an employee to avoid summary judgment in the face of evidence by an employer of a non-age-based reason for an adverse action is a matter of disagreement.” (Hersant, supra, 57 Cal.App.4th at p. 1003.) Specifically, is an employee’s prima facie case alone enough to reach a jury, or must the employee produce affirmative evidence that the stated reason is false or pretextual or that animus drove the decision? Applied to the record, the question reduced to “whether Hersant offered substantial evidence that the nondiscriminatory reasons for demotion given by Department were false, or presented evidence of a discriminatory animus or a combination of the two such that a reasonable trier of fact could conclude Department engaged in intentional age discrimination.” (Id. at p. 1007.)

Holding

Reasoning

The de novo standard and the burden-shifting framework. The court reviewed the grant of summary judgment de novo, “not bound by the trial court’s stated reasons or rationales,” accepting as true the facts and reasonable inferences in the opposing party’s evidence. (Hersant, supra, 57 Cal.App.4th at pp. 1001–1002.) It then situated the analysis within the familiar burden-shifting structure drawn from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248: an employee “must ultimately prove that the adverse employment action taken was based on his or her age,” and because direct evidence is “seldom available,” courts use shifting burdens — prima facie case, then the employer’s legitimate non-age-based reason, then a return of the burden to the employee. (Id. at pp. 1002–1003.) Establishing the prima facie case is “not an onerous” requirement; it asks only for circumstantial evidence from which “a reasonable inference of age discrimination arises.” (Id. at pp. 1002–1003.)

The Hicks problem. The heart of the opinion is the court’s engagement with the disagreement spawned by St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 over what an employee must show once the employer offers a non-discriminatory reason. The court read Hicks as cutting two ways. On one hand, Hicks “emphasized that liability could not arise merely from a showing that the employer’s stated nondiscriminatory basis for the adverse action was false,” and that “the ultimate issue was not whether the employer offered an unbelievable explanation . . . but whether the employer acted for a discriminatory reason.” (Hersant, supra, 57 Cal.App.4th at p. 1003.) On the other, Hicks said that disbelief of the employer’s reasons, “particularly if . . . accompanied by suspicion of mendacity,” may, with the prima facie elements, “suffice to show intentional discrimination.” (Id. at pp. 1003–1004.)

Choosing the predominant view. Surveying the field, the court identified three positions courts and commentators had taken: that the prima facie case alone always suffices to avoid summary judgment; that the employee must show both that the reason is false and that animus was the true reason; and an intermediate “predominant view” requiring the employee to “rebut the employer’s stated nondiscriminatory reason with substantial evidence of its falsity or present other evidence suggesting a discriminatory basis, or some combination of the two such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant, supra, 57 Cal.App.4th at p. 1004.) Noting that California courts had themselves split — Barber v. Rancho Mortgage & Investment Corp. (1994) 26 Cal.App.4th 1819 suggesting the prima facie case alone is enough, and Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 requiring “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual” — the court expressly “agree[d] with Martin and the predominant view.” (Id. at pp. 1004–1005.)

Why a prima facie case plus “unfairness” evidence is not enough. The court’s rationale was that the burden-shifting device “ultimately . . . does not change what the employee must prove.” (Hersant, supra, 57 Cal.App.4th at p. 1005.) That an employee “is the member of a protected class and has demonstrated triable issues concerning the appropriateness of the adverse action taken” does not “so readily demonstrate a discriminatory animus that it is alone sufficient to establish the fact of discrimination or alone sufficient to avoid summary judgment.” (Ibid.) Quoting the Third Circuit’s formulation in Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, the court held that the employee “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” (Hersant, supra, at p. 1005.) Rather, the employee must expose “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered reasons that a reasonable factfinder could find them “unworthy of credence.” (Ibid.)

Applying the standard: the prima facie case was met. The court accepted that Hersant cleared the prima facie hurdle. There was no dispute he was over 40 when demoted; through his own testimony and supporting declarations he made “a sufficient showing that he was performing his job satisfactorily”; and, “[a]ssuming it was necessary,” he showed he was replaced by a man seven years younger — “a differential that could reasonably be described as ‘significant.’” (Hersant, supra, 57 Cal.App.4th at pp. 1005–1006.) The court pointedly declined to decide whether the younger-replacement element is even a required part of a FEHA prima facie case, citing the unsettled state of the law after O’Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308. (Id. at p. 1003, fn. 3.)

Applying the standard: the rebuttal evidence fell short. The decisive failure came at the final step. Hersant had marshaled evidence “showing there was no validity to any of the stated bases for his demotion,” and the court canvassed it in detail — the absence of a fee-based closure policy, the innocent explanation for the address changes, his asserted ignorance of the civil-penalty policy, and his efforts on the interview panel. (Hersant, supra, 57 Cal.App.4th at pp. 1007–1008.) But the court held this established only that the Department’s actions might have been unreasonable, not that they were pretextual: “Hersant raised triable issues concerning whether the actions of Department were reasonable and well considered. A trier of fact could find either they were or they were not. What a trier of fact could not reasonably conclude, however, was that Department’s stated reasons were implausible, or inconsistent or baseless; it would not be reasonable to conclude they were pretextual and used merely to veil an act of age discrimination.” (Id. at p. 1009.)

The direct-animus evidence was speculation. Finally, the court rejected Hersant’s more direct evidence of bias. To “attribute Davis’s claimed harassment and ill treatment of Dumont and Hersant and her inquiries concerning Dumont’s hearing to age bias is simply speculation,” the court agreed with the trial court. (Hersant, supra, 57 Cal.App.4th at p. 1009.) Because neither the rebuttal nor the animus evidence met the substantial-evidence threshold, the trial court “acted correctly in granting Department’s motion for summary judgment,” and the judgment was affirmed. (Id. at pp. 1009–1010.)

Significance

Hersant supplied the formulation that has governed California summary-judgment practice in FEHA disparate-treatment cases for a quarter century. Faced with an open question — whether Hicks let a plaintiff reach a jury on the prima facie case plus disbelief of the employer’s explanation, or demanded more — the court chose the middle path and gave it a memorable, quotable shape: substantial evidence that the stated reason is “untrue or pretextual,” evidence of discriminatory animus, “or a combination of the two.” (Hersant, supra, 57 Cal.App.4th at pp. 1004–1005.) Equally consequential is the negative half of the holding — that triable issues about whether the employer’s decision was “sound,” “reasonable[,] and well considered” do not, without more, defeat summary judgment, because the suit “is not an action for general unfairness but for age discrimination.” (Id. at pp. 1005, 1009.) That distinction between business unfairness and unlawful discrimination remains the fault line on which many employer summary-judgment motions turn.

The decision’s reach is broader than its age-discrimination facts. By framing its rule for “an employee claiming discrimination” generally (Hersant, supra, 57 Cal.App.4th at p. 1004), Hersant became the standard citation for the pretext stage across FEHA theories, and the California Supreme Court later folded the same analysis into its definitive summary-judgment treatment in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. The holding also reflects an important limit: Hersant is a summary-judgment-burden case, not a recalibration of the substantive elements of an age claim. It assumes the plaintiff’s ultimate burden is to prove the adverse action “was based on his or her age” and asks only what quantum of evidence at the opposition stage permits a reasonable inference of that ultimate fact. (Id. at pp. 1002, 1005.) The court’s express refusal to decide whether the younger-replacement element is required leaves the prima facie contours to later cases. (Id. at p. 1003, fn. 3.)

Key quotes

“We agree with Martin and the predominant view that to avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant, supra, 57 Cal.App.4th at pp. 1004–1005.)

“It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for age discrimination.” (Id. at p. 1005.)

“The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. . . . Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’” (Id. at p. 1005.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The court expressly reserved whether the fourth prima facie element — replacement “by a significantly younger person” — is even required in a FEHA age claim, observing it is “not entirely clear that this last element is a required part of the employee’s prima facie case” and that, “[g]iven the manner in which we resolve this matter, it is not necessary we resolve the issue.” (Hersant, supra, 57 Cal.App.4th at p. 1003, fn. 3, citing O’Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308.) Relatedly, the court applied the replacement analysis only “[a]ssuming it was necessary [Hersant] do so,” leaving the question for another day. (Id. at p. 1006.) The opinion also does not delineate how much quantitatively constitutes “substantial” evidence of pretext, nor where the line falls between evidence that the employer’s reason is merely “wrong or mistaken” and evidence that it is “unworthy of credence” — a line-drawing problem left to case-by-case application. (Id. at p. 1005.) And because the court resolved the claim on the pretext step, it had no occasion to decide whether, and when, the prima facie case standing alone might in some circumstances suffice — the very Hicks question over which it noted the courts remained divided. (Id. at pp. 1003–1004.)