What Showing Must a Plaintiff Make to Avoid Summary Judgment in an Age Discrimination Case?

By Susan K. Eggum

The Age Discrimination in Employment Act (ADEA), 29 USC §§ 621-623, was adopted in 1967 to prohibit arbitrary age discrimination in employment. 29 USC § 621(b). It has been claimed by some, and I believe erroneously, that the Ninth Circuit's December 24, 1996, decision in Nidds v. Schindler Elevator Corporation, 103 F.3d 854 (9th Cir. 1996), requires a claimant to prove by direct evidence a pretext and a discriminatory reason for discharge in order to avoid summary judgment.

Nidds was a highly experienced, well-liked, 56-year-old elevator service mechanic when he and two other service mechanics were discharged by Schindler Elevator Corporation. Not long before Nidds was laid off, Schindler's District Service Supervisor told another service mechanic that he intended to get rid of all the "old timers" because they would not "kiss my ass." Shortly after Nidds was discharged, his route was assigned to a 25-year-old apprentice, who had passed his mechanic's test only 30 days earlier.

A classic age discrimination case? Not exactly. Nidds did file an age discrimination lawsuit against Schindler, but his case was dismissed on summary judgment. The reason? Although Nidds was able to establish a prima facie case of age discrimination, he was unable to produce sufficiently probative evidence of a "pretext." To establish a prima face case of age discrimination through circumstantial evidence, the plaintiff must show that he or she was:

- a member of a protected class;

- performing his or her job in a satisfactory manner;

- discharged; and

- replaced by a substantially younger employee with equal or inferior qualifications.

The fourth element has been treated with some flexibility. What the plaintiff must show, through direct, circumstantial or statistical evidence, is that the plaintiff's discharge occurred under circumstances giving rise to an inference of age discrimination. Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990). This inference can be established by showing that the employer had a continuing need for the discharged employee's skills and services, Wallis at 891, or by showing that others not in the employee's protected class were treated more favorably. Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1994).

In order to establish a prima facie case of age discrimination, the plaintiff must offer evidence that gives rise to an inference of unlawful discrimination. Sischo-Nownejad v. Merced Community College Dist., 775 F.2d 998, 1005 (9th Cir. 1991). That evidence may be direct or circumstantial, and very little is required. Messick v. Horizon Industries, Inc., 62 F.3d 1227, 1229 (9th Cir. 1995). The plaintiff's proof of a prima facie case establishes a presumption that the employer unlawfully discriminated against the plaintiff.

If the plaintiff establishes a prima facie case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. If the defendant articulates such a reason, then the burden shifts back to the plaintiff to prove that the employer's alleged reason for the adverse employment decision is a pretext for a discriminatory motive. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994); Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986).

In Nidds, the plaintiff was unable to show that the defendant's reasons for his layoff were pretextual. Nidds' employer met its burden by offering evidence that a downturn in work required some layoffs, and that it used a combination of factors, including performance, technical qualifications and seniority in deciding whom to discharge.

The Ninth Circuit's December 24, 1996 decision in Nidds has sparked some debate over what showing is required to avoid summary judgment. On the one hand, counsel for defendant- employers have argued that Nidds now requires the claimant to adduce direct evidence showing that the reason given for the discharge is a pretext and that the real reason was discriminatory. Magistrate Judge Coffin, in a recent ruling recommending summary judgment, and quoting from the original opinion in Nidds, points out that "[t]o demonstrate pretext, plaintiff's burden is essentially to answer the ultimate question of whether defendant has intentionally discriminated against her." Neeley v. Philips Electric, Inc., USDC for the District of Oregon, Civ. No. 96-6110-TC; March 7, 1997)(Findings And Recommendation, p. 7). On the other hand, claimants point out that, before or after the Ninth Circuit's December 24, 1996 decision in Nidds, summary judgment may be defeated with either direct or circumstantial evidence that the alleged reasons for the discharge were false, coupled with the plaintiff's prima facie case.

This debate as to what the December 24, 1996 Nidds decision requires has been put to rest by the Ninth Circuit's amended opinion in Nidds, issued on April 30, 1997. Nidds v. Schindler Elevator Corporation, 1997 WL 880609 (9th Cir. April 30, 1997). With the filing of the amended opinion, a majority of the panel voted to deny the petition for rehearing and suggestion for rehearing en banc, and no judge of the Ninth Circuit requested a vote on whether to hear the matter en banc.

Citing Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.C 1261 (1996), the amended Nidds decision makes clear that to defeat summary judgment the plaintiff must show either that the alleged reason for the discharge was false or that the true reason for the discharge was discriminatory. Id. at *5.

Equally important, with respect to proof of pretext, the amended Nidds opinion makes clear that a plaintiff need not adduce direct evidence of discriminatory intent, and that evidence of pretext, plus the prima facie case, is sufficient for the plaintiff to prevail:

At trial, [plaintiff] must prove "both that the [employer's alleged] reason was false and that discrimination was the real reason." However, if [plaintiff] persuades the jury that the defendant's alleged reason is false, then "[t]he factfinder's disbelief of the reasons put forward by the defendant . . . together with the elements of the prima facie cases . . . will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . . no additional proof of discrimination is required." Thus, to survive summary judgment, [plaintiff] is not required to provide direct evidence of discriminatory intent as long as a reasonable factfinder could conclude -- based on [plaintiff's] prima facie case and the factfinder's disbelief of [defendant's] reasons for discharge -- that discrimination was the real reason for [plaintiff's] discharge.

Id. at *4, *8 n.2 (citations to St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) omitted and emphasis added). The amended opinion concludes that summary judgment was appropriate because Nidds' evidence was not sufficiently probative to allow a reasonable factfinder to conclude either that the alleged reason for his discharge was false, or that the true reason for his discharge was a discriminatory one.

Just two weeks later, on May 15, 1997, a different panel of the Ninth Circuit decided Payne v. Norwest Corporation, ___ F.3d ___ (9th Cir. 1997), 1997 WL 251290, where it reversed the magistrate judge's ruling granting summary judgment against the plaintiff's claim of retaliation. In doing so, Payne explains that when the plaintiff can no longer rely on his prima facie case, and the burden shifts back to him to prove discriminatory motive, "very little evidence" is needed to defeat summary judgment:

In other words, Payne could no longer rely on his prima facie case; he needed to "tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id. (citations omitted). This burden is hardly an onerous one: "`the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext."

Payne v. Norwest Corporation, supra, at *1 (emphasis added).

Payne also cites the April 30, 1997 amended opinion of Nidds to explain that shifting reasons given by an employer for a discharge do give rise to a genuine issue of fact as to pretext since such shifting reasons suggest the possibility that the "official reasons" were not the true reason. Id. at *1.

Although it is for our District Court to determine whether the plaintiff's evidence is sufficiently probative, there is no doubt now that a plaintiff's prima facie case, combined with very little direct or circumstantial evidence of a pretext or discriminatory motive, will defeat summary judgment.