A Motivating Reason: Chipping Away at Pretext

Isvoranu_Delia_webThe Judicial Council of California Civil Jury Instructions (CACI) offers only a few instructions in employment law. More often than not, to address the different nuances common in employment claims, practitioners must request special jury instructions which most judges are hesitant to apply. Two instructions that are found in CACI, however, are No. 2500 (that a plaintiff’s protected characteristic was a  “motivating reason” for the adverse employment action) and 2507 (defining a motivating reason as “a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision”). Neither instruction requires a jury to find that unlawful discrimination was the motivating or only reason for an adverse employment action. Nonetheless, these instructions are often requested by practitioners and given by judges in pretext cases where liability hinges on the protected characteristic being the sole reason for the employer’s decision. Several considerations suggest, however, that despite their common use in pretext trials, CACI 2500 and 2507 are not pretext instructions, but rather, instructions to be used in mixed-motive cases under a very different liability analysis.

Fair Employment and Housing Act (FEHA) discrimination claims are typically based on one of two theories: pretext or mixed-motives. The Supreme Court “made clear that ‘mixed-motives’ cases … are different from pretext cases such as McDonnell Douglas. … In pretext cases, ‘the issue is whether either illegal or legal motives, but not both, were the ‘true’ motives behind the decision. In mixed-motives cases, however, there is no one ‘true’ motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate.”[1] A plaintiff alleging mixed-motives must establish that the employer in fact acted, at least in part, because of a discriminatory reason. The employer, in turn, can present evidence that it also had legitimate reasons for the termination and that it would have taken the same action even absent the unlawful motive.[2]

On the other hand, in a pretext case applying the McDonnell Douglas burden-shifting analysis, the question becomes whether the plaintiff has shown that the challenged action resulted in fact from discriminatory animus rather than other causes, i.e., not from mixed motives.[3] Pretext alleges that the non-discriminatory reasons offered by the employer are false and that the protected characteristic is the only and true reason for the adverse employment action. Thus, it makes sense that under a mixed-motives theory, the employee can show that the protected characteristic was a motivating reason for the employer’s decision, although other, legitimate reasons also may have existed. At least two cases applying California law have deemed the motivating reason test to be “the so-called ‘mixed-motive’ test under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),” not a pretext test.[4]

Aside from the language of CACI 2500 and 2507 suggesting that they are mixed-motives instructions, so too does their legislative history. Despite the published versions of CACI 2500 and 2507 referencing a few pretext cases (one reason practitioners request these instructions in pretext actions), the “Sources and Authority” section of the 2007 first draft of CACI 2507 cited Desert Palace, Inc. v. Costa (2003) 539 U.S. 90, the seminal mixed-motives case which expressly decided the standard of proof in a mixed-motives discrimination claim and reiterated that “a motivating factor” is a mixed-motives instruction.[5] Also appearing in the 2007 draft was a reference to Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal. App. 4th 1361, 1379, another mixed-motives case, which held that, “In a mixed motive case, both legitimate and illegitimate factors contribute to the employment decision. Once the employee establishes … that an illegitimate factor played a motivating or substantial role in an employment decision, the burden falls to the employer to prove by a preponderance of the evidence that it would have made the same decision even if it had not taken the illegitimate factor into account.” For no known reason, the references to Desert Palace and Grant-Burton were deleted from the final version of CACI 2507, although the instruction continued to reference the motivating reason language appearing in those non-pretext cases.

The recent holding by the California Supreme Court in Harris v. City of Santa Monica (2013) P.3d, 2013 WL 452959, a mixed-motives case, further suggests that CACI 2500 and 2507 are not pretext instructions. In Harris, a probationary at-will employee had a history of performance problems, including two preventable accidents caused by her negligent driving and poor attendance. Fearing that she may be terminated, the plaintiff disclosed something she had known for a while but not yet divulged—that she was pregnant. Her employment was terminated, with the stated reasons being that she caused two accidents and missed work twice without giving the required notification.

The California Supreme Court outlined a new mixed-motive defense for employers facing FEHA discrimination claims and also required employees to first prove that the employer’s adverse-employment action was substantially motivated by the employee’s protected status.[6] In analyzing the suitability of a motivating reason instruction, the Harris court differentiated between mixed-motive and pretext cases:

In FEHA employment discrimination cases that do not involve mixed motives, we have adopted the three-stage burden-shifting test established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 ( McDonnell Douglas ). As explained in Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317…a plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.

The framework above presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate. By hinging liability on whether the employer’s proffered reason for taking the action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret out the “true” reason for the employer’s action. In a mixed-motives case, however, there is no single “true” reason for the employer’s action. What is the trier of fact to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer’s decision? That is the question we face in this case.[7]

The Supreme Court held that under a mixed-motive theory, the CACI 2500 (and therefore 2507) “a motivating reason” language is insufficient and that “the jury should instead determine whether discrimination was ‘a substantial motivating factor/reason.”[8]  This is a significant shift in the burden of proof in mixed-motives cases, although it remains to be seen how this new standard will be applied.

Harris did not directly address or resolve the applicability, or lack thereof, of CACI 2500 and 2507 when the plaintiff has pled discrimination based on pretext. However, Harris’ mixed-motives analysis of CACI 2500 and 2507 suggests that they are not proper instructions when the employee alleges that the employer’s decision was a pretext for discrimination.

Delia Isvoranu is a Partner with Sedgwick LLP.

[1] Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 260

[2] Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679, 702-703

[3] Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112. [“Plaintiff has not invoked the competing model of ‘mixed motive’ analysis, under which a case goes to the jury if there is evidence that an impermissible criterion ‘was a motivating factor for any employment practice’.”]

[4] Crommie v. State of Cal., Public Utilities Com’n (N.D.Cal.1994) 840 F.Supp. 719, 722. [see also, Reeves, supra, 121 Cal.App.4th at p. 112 [The “motivating factor” analysis is used under a mixed motive analysis.]

[5] Id. at pp. 91, 98, 102

[6] Id. at p.26

[7] Id. at *4

[8] Id. at p.26

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