McDonnell Douglas Burden-Shifting Test: Not for the Jury!

In an unpublished decision in an age discrimination case filed under FEHA, California’s Second District Court of Appeals just affirmed what most employment law attorneys already know: the McDonnell Douglas burden-shifting test is to be used by the court in determing questions of law – typically whether or not the plaintiff can survive a defendant’s motion for summary judgment. (This test was essentially adopted in California by the California Supreme Court in Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 (2000)).

Plaintiff was a store manager for a Vons store in Fillmore, California. He was 52 years old when he was promoted to store manager. (That fact alone makes an age discrimination claim darn tough to prove unless the alleged discrimination happened years later!) Well, things for the store manager did not go well and after some unsatisfactory performance evaluations and “extremely low score” from his employees, the store manager was demoted to receiving clerk, bypassing the assistant manager position on the way down.

The case went to trial and the jury found no age discrimination. So plaintiff appealed arguing that the jury should have been instructed to use the McDonnell Douglas burden-shifting test to determine whether or not plaintiff was demoted because of his age.

It’s difficult to imagine this argument would succeed on appeal because it defies common sense and the law. The Court cited Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359 (2005):

A plaintiff in an employment racial discrimination case “has the burden of proving … that the plaintiff’s race was a substantial factor in the adverse employment decision.” That is the standard the jury must follow. The McDonnell Douglas burden-shifting test is “most useful at preliminary stages of litigation, such as summary judgment….” (Horsford, at p. 375.) But “[o]nce the case is submitted to the jury … these frameworks drop from the picture…. ”

Case right on point, apparently ignored.

The Court also quoted Caldwell v. Paramount Unified School District, 41 Cal.App.4th 189 (1995):

Whether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff’s prima facie showing, are questions of law for the trial court, not questions of fact for the jury.

There ya go!

Let’s set-aside for the moment the legal issues in this case and look at the facts of the case. The facts are the meat of the case. Sometimes lawyers forget this.

This case was an age discrimination case – which means plaintiff has to prove that he was demoted or fired or whatever because he was too old. When the plaintiff alleges this, the employer is automatically going to bring up the plaintiff’s shortcomings as an employee, and here, there were a lot.

Here’s a laundry list of plaintiff’s shortcomings as a Vons store manager: 

  • Store employees gave plaintiff an “extremely poor score”
  • received unsatisfactory performance evaluations from management and failed to improve
  • failed to maintain a “neat” store
  • he isolated himself in his office
  • ignored problems
  • did not respect employees
  • allowed employees to run the store without supervision
  • was preoccupied with his own personal problems
  • did not exercise management leadership
  • did not conduct inspections of his store
  • poor store performance
  • inventory control problems
  • failed to train the assistant store manager
  • would often leave the store to attend to personal business
  • low staff morale
  • told employees in a meeting that he did not want women on his management team 

Plaintiff must have put on a good show for his trial attorney because as these facts surely came out in discovery, this case doesn’t have the makin’s for a good age discrimination case, McDonnell Douglas or not!

Of course, with hindsight even the cloudy becomes clear, but this case should have been settled or never brought. Now all plaintiff has is a double-loss and a court opinion — though unpublished — that is accessible on Westlaw and Lexis, detailing all of his shortcomings as an employee for all to read.


Michael Chapman v. Safeway, Inc., 2012 WL 3580674.

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