California Appellate Court Reinstates Age Discrimination Suit

An appellate court in California has reversed a trial court decision that dismissed an age discrimination and retaliation lawsuit brought by an El Segundo fire captain. Captain Scott Martinez accused the City of El Segundo and Fire Chief Chris Donovan of refusing to promote him to battalion chief due to his age and because he reported certain improprieties.

Martinez’s suit was dismissed by the Los Angeles County Superior Court, who concluded based on the McDonnell Douglas burden shifting test that the city has established a legitimate, non-discriminatory reason for not promoting him, and that he has no evidence that the city proffered reason was pretextual.

The California Court of Appeals disagreed, and reversed. Quoting from the decision:

• Martinez argues the trial court improperly granted summary adjudication on his FEHA discrimination claim by misapplying the McDonnell Douglas burden-shifting test.
• He argues that, after he sufficiently established his prima facie case for discrimination and then respondents provided evidence of a legitimate, nondiscriminatory purpose for not promoting him, the trial court erroneously ignored Martinez’s evidence of pretext and discriminatory motive.
• We find the trial court properly applied the burden-shifting test here; however, we disagree with its conclusion that Martinez’s evidence was insufficient to create a triable issue of fact regarding pretext.
• It is undisputed that Martinez met his initial burden to establish a prima facie case for discrimination.
• He offered evidence that he was in the protected age group, and was passed over for a promotion by a younger and arguably less qualified candidate.
• There was also evidence that the decision to promote an arguably less qualified candidate over a more qualified candidate had only occurred on one other occasion when the eligible candidate was under investigation.
• This evidence was sufficient to meet Martinez’s relatively low burden of proof at the prima facie stage to establish a presumption of discrimination.
• Respondents then rebutted the presumption by producing evidence that they declined to promote Martinez based on legitimate nondiscriminatory reasons; specifically, Martinez’s poor performance as acting battalion chief and Donovan’s evaluation of Martinez’s weaknesses.
• Martinez then offered additional evidence of discriminatory motive and pretext to attack respondents’ legitimate nondiscriminatory reasons.
• Most importantly, Martinez offered evidence that Donovan made a number of ageist statements directed to Martinez.
• Specifically, Martinez offered evidence that Donovan told him, “Hey, you’re the old guy around here,” “get on the bus. We’re going to leave you behind. You know, you old guys, you’ve got to get with these technology times. You’ve got to get with the future. You’ve got to move forward.”
• For purposes of summary judgment, these statements, among other evidence, create a dispute of fact regarding the reason that Donovan refused to promote Martinez.
• A jury could conclude the ageist statements reflect Donovan’s intent to discriminate, and the jury could choose to discredit Donovan’s asserted reason that Martinez performed poorly in the temporary post.
• This is especially true here, where Martinez has offered other evidence that respondents’ failure to promote him was an aberration, and there was evidence that he may have been more qualified than the candidate who was promoted as shown by the results of the battalion chief examination.
• Martinez also offered other evidence that the decision not to promote him was pretextual.
• This included “me too” evidence of other Fire Department employees, who allegedly suffered age discrimination at the hands of Donovan.
• Martinez offered statements from three other Fire Department employees who were in his protected age group, and who claimed that Donovan had either pressured them to retire based on age or replaced them with substantially younger employees.
• While respondents assert this “me too” evidence is not admissible to meet Martinez’s burden as it was not sufficiently similar to Martinez’s circumstances, we disagree.
• Like Martinez, these other Fire Department employees made claims that Donovan discriminated against them based on age; therefore, they were admissible to show discriminatory motive.
• In sum, under the totality of the circumstances, Martinez’s additional evidence was sufficient to create a triable issue of fact on whether respondents’ legitimate nondiscriminatory reasons to not promote Martinez were pretextual.
• With respect to Martinez’s prima facie burden, the parties do not dispute Martinez’s complaints constituted protected activity. Rather, they dispute whether Martinez presented evidence that respondents took adverse employment actions against him and whether Martinez established a causal link between the protected activity and respondents’ actions.
• We also conclude Martinez established a triable issue of fact on whether there was a causal link between the protected activity and respondents’ actions.
• For the reasons discussed above, we find Martinez sufficiently created a triable issue of fact on whether respondents acted with retaliatory animus.
• The judgment is reversed. Appellant shall recover his costs on appeal.

Incidentally, two other members of the El Segundo Fire Department filed suits alleging age discrimination. Here are links to those cases:

Battalion Chief Shawn Bonfield

Fire inspector William Hatcher

Here is a copy of the decision: