Employment Discrimination Cases Just Got Harder to Prove: Court Improves Employers’ Chances of Winning Summary JudgmentAge Discrimination, Litigation
Winning a lawsuit against your employer is hard—the odds just aren’t in your favor. In 2009, the Harvard Law and Policy Review published an article about those odds, “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” The authors found that employees won their lawsuits against their employers only 15% of the time, whereas in non-employment law cases, plaintiffs won 51% of the time.
How do employers have such a good win percentage against their employees? One explanation is their use of motions for summary judgment.
What Is a Motion for Summary Judgment?
A motion for summary judgment is a motion asking the judge to summarily decide a case (or a specific cause of action within a case) without a trial. In essence, a party moving for summary judgment takes the position that both sides agree as to the important or material evidence. When the relevant law is applied to that evidence, the moving party declares that no trial is necessary because it is clear that it would win.
Employers love to use the motion for summary judgment to dismiss their employees’ cases against them, allowing them to avoid an expensive trial. It also doesn’t hurt that employers have historically had good success with these motions. A court decision from the Ninth Circuit (which many have considered one of the more plaintiff-friendly federal circuits) recently made it yet easier for defendant employers to win age discrimination lawsuits at the summary judgment stage. Let’s take a closer look at that case: Charles Merrick v. Hilton Worldwide, Inc.
The Facts of the Case
In 2012, Hilton Worldwide fired its employee, Charles Merrick, after employing him for 19 years. Merrick was the Director of Property Operations when he was fired, and at 60 years old, he was one of the oldest and highest-paid Hilton employees at his assigned hotel.
Hilton began conducting several rounds of layoffs starting in 2008, due to the economic downturn. Merrick made it through three rounds of layoffs, in 2008, 2009, and 2011. During the 2012 round of layoffs, Hilton ordered several of its hotels to reduce their payroll by 7–10%. Hilton clarified that when hotels were deciding which employees to let go, the primary criteria should be job performance and disciplinary issues. Other considerations included the length of time worked, the employee’s amount of guest interaction, and the employee’s involvement in revenue generation. Hilton stated that its aim was to fire the fewest number of employees necessary to reach the 7–10% payroll reduction target.
After considering Hilton’s layoff factors, the hotel fired Merrick. Even though Merrick’s performance and disciplinary history were unremarkable, Merrick was the second-highest-paid employee at his hotel, he had limited interaction with guests, and some of his job duties had been outsourced.
Merrick sued Hilton, alleging a variety of claims based on the premise that he was illegally terminated because of his age. Hilton filed a motion for summary judgment to dismiss all of Merrick’s claims. The district court granted that motion, ending Merrick’s case.
Merrick appealed only his age discrimination claim based on California’s Fair Employment and Housing Act (“FEHA”) to the Ninth Circuit Court of Appeals. The FEHA makes employees over the age of 40 a protected class and prevents employers from firing them on the basis of age.
A protected class is a legally recognized group of individuals who share a common, legally protected characteristic. Other examples of protected characteristics include race, national origin, and sex.
Unfortunately for Merrick, the Ninth Circuit affirmed the trial court and made it easier for employers to win at summary judgment. The Ninth Circuit based its decision on the McDonnell Douglas burden-shifting framework, ruling that Merrick’s case was unable to survive its third and final step.
What Is the McDonnell Douglas Burden-Shifting Framework?
This three-part test typically applies to federal discrimination cases. But because of the similarity between California’s FEHA and federal anti-discrimination laws, such as the federal Age Discrimination in Employment Act of 1967 (ADEA), California courts (and federal courts applying California law) utilize the McDonnell Douglas test.
The first step of the framework requires that an employee establish a prima facie case of discrimination. A prima facie case means that the basic requirements of the cause of action have been met. To pass this step, the employee only has to provide enough evidence to create a presumption of illegal discrimination.
In the second step, the burden shifts to the employer, which must show that what the employee claims was a discriminatory act was in fact nondiscriminatory and legally allowed. For instance, an employer may show that the employee wasn’t fired because of his age but rather because he was always late or performed poorly. Assuming the employer passes the second step, the burden shifts back to the employee for the third step.
In step three, the employee must present additional evidence to challenge the employer’s claimed legal and nondiscriminatory action. To do this, the employee must either show that the employer’s actions were a pretext for illegal discrimination or provide additional evidence of the employer’s discriminatory motive. A pretext is a made-up justification to conceal the real and improper reason for an action.
Applying the McDonnell Douglas Framework to Merrick’s Case
Merrick passed the first step: he was over the age of 40 when he was fired, his job performance was adequate, and he was fired in a manner that suggested discrimination.
Hilton passed the second step by submitting evidence that Merrick’s firing was due to the following nondiscriminatory reasons.
- Merrick’s salary was high enough that by only firing him, the hotel met its 7-10% payroll-reduction goal. Short of firing the general manager, whose position was deemed too critical to eliminate, meeting the payroll-reduction goal would otherwise require firing at least two Hilton employees.
- Merrick had little direct interaction with guests.
- There were already staff shortages in other departments that had a more direct role in revenue production than Merrick’s department.
It was at the third step that Merrick lost his case because he was unable to produce enough evidence either to show that Hilton’s reasons were an improper pretext or to prove that his firing was in fact based on his age. The court noted that Merrick had survived three prior rounds of layoffs, indicating that he was not judged for his age. Further, what evidence Merrick could produce to show pretext or a discriminatory motive was tenuous, easily explained away with legitimate business decisions, and, at best, circumstantial.
Merrick cited prior case law that said employees in employment discrimination cases need only produce “very little evidence” to survive summary judgment. However, the Ninth Circuit concluded that Merrick had not met even that standard.
The Ninth Circuit did not directly change the law for employees in employment discrimination cases. But it subtly raised the bar that employees need to clear to survive the third step of the McDonnell Douglas burden-shifting framework.
Summing It Up
- A motion for summary judgment allows a litigant to ask the court to decide a case (or part of a case) without a trial.
- For a court to grant a motion for summary judgment, the requesting party must show that there is no dispute as to the material facts in the case and that when the relevant law is applied to those facts, the requesting party should win.
- Under federal anti-discrimination laws and sufficiently similar state laws, courts apply the McDonnell Douglas burden-shifting framework to decide motions for summary judgment.
- The McDonnell Douglas test has three parts. First, the employee must present a prima facie case of discrimination. Second, the employer must then show that it had a nondiscriminatory reason for its actions. Finally, the employee must present evidence showing either that the claimed nondiscriminatory reason is a pretext or that the employer’s actions were still discriminatory.
- The Ninth Circuit Court of Appeals has made it more difficult for employees to survive summary judgment by implicitly requiring them to produce more evidence of discrimination to survive the third step of the McDonnell Douglas burden-shifting framework.
Have you been discriminated against at work because of your age? Were you laid off for a reason that doesn’t seem legitimate? Please contact our office to discuss your specific facts so you can make an informed decision about what to do next.