41 Cal.App.4th 1523E, Caldwell v. Paramount Unified School Dist.

• Decision Date: 20 December 1995
• Citation: 48 Cal.Rptr.2d 448,41 Cal.App.4th 189
• Parties: E, 41 Cal.App.4th 189, 75 Fair Empl.Prac.Cas. (BNA) 171, 67 Empl. Prac. Dec. P 43,818, 105 Ed. Law Rep. 652, 95 Cal. Daily Op. Serv. 9724, 95 Daily Journal D.A.R. 16,877 Richard CALDWELL, Plaintiff and Respondent, v. PARAMOUNT UNIFIED SCHOOL DISTRICT, Defendant and Appellant. B082976.
• Court: California Court of Appeals Court of Appeals

Page 448

48 Cal.Rptr.2d 448

41 Cal.App.4th 1523E, 41 Cal.App.4th 189,

75 Fair Empl.Prac.Cas. (BNA) 171,

67 Empl. Prac. Dec. P 43,818, 105 Ed. Law Rep. 652,

95 Cal. Daily Op. Serv. 9724,

95 Daily Journal D.A.R. 16,877

Richard CALDWELL, Plaintiff and Respondent, v. PARAMOUNT UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

B082976.

Court of Appeal, Second District, Division 5, California.

Dec. 20, 1995.

As Modified on Denial of Rehearing Jan. 17, 1996.

Review Denied March 14, 1996.

Kohrs & Fiske, Conrad Kohrs, and Michelle R. Williams, Santa Monica, for Defendant and Appellant.

Gronemeier & Barker, Alexander A. Molina and Dale L. Gronemeier, Pasadena, for Plaintiff and Respondent.

ARMSTRONG, Associate Justice.

This case presents the sometimes knotty question of the proper application of the "shifting burdens of proof" applicable to employment discrimination cases as first set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (hereafter, McDonnell Douglas ). Due to the confusion which is attendant to application of this legal concept in various trial and pretrial proceedings, we discuss its purpose and use at length below.

Plaintiff Richard Caldwell ("Caldwell") sued Paramount Unified School District (the "District") ¹ for breach of contract, race and age discrimination in violation of the Fair Employment and Housing Act, and wrongful termination in violation of public policy. ² A jury returned a special verdict in favor of the District on the race and age discrimination claims, and determined that Caldwell had breached his contract of employment with the District. ³ Caldwell brought a motion for new trial and for judgment notwithstanding the verdict. The trial court granted the former motion and denied the latter. The District appeals the order granting Caldwell a new trial, while Caldwell appeals the denial of his motion for judgment notwithstanding the verdict. We affirm the trial court's denial of Caldwell's motion for judgment notwithstanding the verdict, vacate the new trial order, and remand the matter to the trial court with directions to enter judgment for the District.

FACTS AND PROCEDURAL HISTORY

Caldwell had been superintendent of the District for thirteen years when, on August 13, 1991, the Board of Education, by a three-to-two margin, elected not to renew his contract, which was due to expire on June 30, 1992. Caldwell presented evidence that his age was a factor in the decisions of Vivian Hansen and Janet Miller to vote for nonrenewal, and that his race was a factor in Joseph Montoya's no vote. These three individuals testified that neither age nor race played any part in their decisions, and detailed the nondiscriminatory reasons which led to their individual votes for nonrenewal.

The jury returned a special verdict, answering the following two questions in the negative: "Did defendant discriminate against plaintiff because of his race with regard to the employment contract?" and "Did defendant discriminate against plaintiff because of his age with regard to the employment contract?" Pursuant to the instructions on the special verdict form, the jury did not answer the questions "Was the proof of age [or race] discrimination direct or indirect?" or questions regarding the shifting burdens of production which apply to claims of discrimination based on indirect evidence. ⁴

As noted, Caldwell moved for a new trial and for a judgment notwithstanding the verdict. His principal contention was that Hansen's unrebutted statements, made to a reporter and appearing in a newspaper article, provided direct evidence of age discrimination. Among the statements cited by Caldwell in support of his motion for new trial was the following: "We're trying to restructure around the way students learn, not around the way we administer. Caldwell is 66 years old and he wanted an extension to 70. Not that age is important, but this is someone at the end of his career, not at the beginning." Caldwell argued as well that there was no substantial evidence to support the jury's finding that he had breached his contract of employment. Finally, Caldwell asserted that the court improperly instructed the jury on the plaintiff's burden of proof of age and race discrimination. The court rejected Caldwell's first two contentions, but agreed that it had incorrectly instructed the jury on the burden of proof of employment discrimination, and granted Caldwell a new trial on that basis.

CONTENTIONS

On appeal, the District contends that the trial court erred in granting Caldwell's motion for new trial since (1) the jury was properly instructed regarding the parties' respective burdens of proof, (2) any error was invited by Caldwell's submission of an instruction substantially similar to the instruction given, and (3) the error, if any, had no effect on the outcome, and thus did not constitute proper grounds for a new trial. Caldwell also appeals, contending that the trial court erred in denying his motion for judgment notwithstanding the verdict.

DISCUSSION

1. The District's appeal

At the outset, we note that both state and federal legislation prohibit employers from discriminating against employees on the basis of age or race. (Gov.Code, § 12940, subd. (a); 42 U.S.C. § 2000e et seq.; 29 U.S.C. § 621 et seq.) Although state and federal antidiscrimination laws "differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of the state statute. [Citations.]" (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316-1317, 237 Cal.Rptr. 884.)

a. McDonnell Douglas and the shifting burdens of proof

The issue giving rise to the District's assignment of error in this case is the shifting burdens of proof applicable to claims The Supreme Court first articulated the rules applicable to this type of employment discrimination case in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. There, plaintiff Green, a mechanic at McDonnell Douglas, was laid off in the course of a general reduction in McDonnell Douglas's work force. After his discharge, he engaged in disruptive and illegal activity against McDonnell Douglas as part of his protest that his discharge was racially motivated. When McDonnell Douglas later advertised for qualified mechanic positions, Green applied for re-employment, but was not offered a job. Green brought suit, claiming that McDonnell Douglas failed to rehire him on account of his race and his civil rights activities. McDonnell Douglas denied the charge, maintaining that its failure to rehire Green was due to his participation in unlawful conduct against his employer. After a bench trial, the District Court ruled that plaintiff's misconduct was sufficient to justify McDonnell Douglas's refusal to rehire, and that the latter's decision was based solely on plaintiff's participation in illegal activities. (Green v. McDonnell-Douglas Corp. (E.D.Mo.1970) 318 F.Supp. 846, 850-851.)

                of "disparate treatment" employment discrimination which rely on circumstantial evidence to prove discriminatory intent.  As the United States Supreme Court has explained, " '[d]isparate treatment' ... is the most easily understood type of discrimination.  The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin."  (Teamsters v. United States (1977) 431 U.S. 324, 335-336, fn. 15, 97 S.Ct. 1843, 1854-1855, fn. 15, 52 L.Ed.2d 396.)   In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.  In most cases, however, the plaintiff will be unable to produce direct evidence of the employer's intent, but will instead have to rely on circumstantial evidence and the inferences that may be drawn therefrom.  "Consequently certain rules regarding the allocation of burdens and order of presentation of proof have developed in order to achieve a fair determination of 'the elusive factual question of intentional discrimination.' "  (Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at p. 1306, 237 Cal.Rptr. 884, citing [41 Cal.App.4th 196] Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 255, fn. 8, 101 S.Ct. 1089, 1094, fn. 8, 67 L.Ed.2d 207.)
                

The Court of Appeals reversed. It held that "when a black man demonstrates that he possess the qualifications to fill a job opening and that he was denied the job which continues to remain open, we think he presents a prima facie case of racial discrimination." (Green v. McDonnell Douglas Corp. (8th Cir.1972) 463 F.2d 337, 353.) The court acknowledged that "an applicant's past participation in unlawful conduct directed at this prospective employer might indicate the applicant's lack of a responsible attitude toward performing work for the employer" (ibid.), that is, a legitimate, business-related reason to deny employment. The Court of Appeals concluded, however, that the plaintiff "should be given the opportunity to show that the[ ] reasons offered by the Company were pretextual, or otherwise show the presence of racially discriminatory hiring practices" which affected the employer's decision. (Ibid.) While the court concluded that "the district court did not use appropriate standards in determining whether McDonnell's refusal to hire Green was racially motivated" (ibid.), it did not articulate the standard to be applied on remand.

Against this backdrop, the Supreme Court addressed the question of the order and allocation of proof in a private action alleging employment discrimination. The Court held that the plaintiff must carry the initial burden of establishing a prima facie case of racial discrimination. This may be done, the Court said, "by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the...