Circumstantial Evidence of Pretext

Pretext: something that is put forward to conceal a true purpose or object; an ostensible reason; excuse.

Example: The leaders used the insults as a pretext to declare war.

Here’s a case from the USDC-Northern District of California in which the plaintiff in a FEHA claim alleged racial discrimination in which the Court, in denying in part and granting in part defendant’s MSJ, had a very good discussion on pretext. Plaintiff did not timely file her FEHA claims so they were dismissed, but her claim for wrongful termination in violation of public policy survived, albeit “narrowly” as the Court described.

Defendant, Xerox, said it had legitimate, non-discriminatory reasons for terminating plaintiff because plaintiff’s customers had complaints, she violated company policy by having a second full-time job (horrors!), she failed to meet sales expectations and her poor sales performance generally.

But plaintiff used circumstantial evidence that Xerox fired her because of her race. She pointed to various facts which, if believed by a jury, supported her contention of racial discrimination.

As all lawyers in this area know, it’s the rare discrimination case where there’s a smoking gun proving discrimination. People are savvier now than before and so it is usually the plaintiff’s burden to show the Court all of the circumstantial evidence suggesting discrimination because no one in his or her right mind would send an email saying, “Let’s fire her because she’s black!” or “Let’s get rid of him because he’s too damn old!” or leaving voice mails with similar sentiments.

So in cases like this, the Courts should allow the case to go to a jury. Obviously there are frivolous cases and cases where it is obvious the employer was not engaged in discrimination. But if the plaintiff can show facts, which if believed by a jury would support plaintiff’s contention of discrimination, the case should go to trial because that’s what trials are for – to determine facts, and sometimes, what those facts mean.

As Judge Haywood S. Gilliam, Jr. said, “But the Ninth Circuit has repeatedly held in no uncertain terms that in fact-intensive discrimination cases “the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by a factfinder, upon a full record.” quoting Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 499 (9th Cir. 2015).

You can read Judge Gilliam’s decision here.

Sakeenah McCullough, et al. v. Xerox Corporation
USDC – Northern District of California, Case No. 13-cv-04596-HSG

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