RUSHING, P.J.
The Fair Employment and Housing Act, Government Code sections 12900 et seq. (FEHA), prohibits an employer from firing a worker in retaliation for the worker's complaining about incidents of sexual harassment in the workplace. (Gov.Code, § 12940, subds. (h), (j).)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff William McLeod Reeves worked for defendant Safeway Stores, Inc. (Safeway) as a food clerk from May 1969 until his discharge in July 1998. In or before late 1997, he became aware of conduct that he believed constituted sexual harassment of female employees in the store where he worked. The main offenders seemed to be Brian Sparks and Steve Prodes, the night manager. At least two female workers complained to plaintiff about the problem, and at least one of them asked him to speak to store management about it. In December 1997, and several times thereafter, plaintiff complained to store manager Fred Demarest. Plaintiff testified that Demarest seemed resentful and sought to "trivialize" the complaints, initially saying something to the effect that women were "not such pure innocent things" as plaintiff supposed, and later telling plaintiff, "Bill, as far as I'm concerned, unless these gals come to me and complain about it ..., the problem exists between your ears." Demarest testified that in response to plaintiff's complaints he asked "many employees" if they were experiencing sexual harassment, and "got absolutely nothing back that was conclusive or that even hinted of sexual harassment." However Stephanie Alves testified that she herself complained directly to Demarest, with no apparent result, about an episode of what she considered sexual harassment by Sparks and Prodes. She also heard store manager Henry Sukovaty refer to plaintiff sarcastically as "Mr. Sexual Harassment."
District manager Moira Susan Hollis testified that "if someone makes a complaint to the store manager about sexual harassment, the store manager is supposed to ... give that complaint to [the human resources department]" for investigation. She further testified that Demarest behaved inappropriately if, as he and plaintiff testified, he conducted his own investigation rather than referring plaintiff's complaints to human resources.
Although plaintiff's shift ended at midnight, he sometimes remained past that time to socialize with co-workers. Demarest testified that he "asked" plaintiff "on a couple of occasions not to enter the store after closing." Plaintiff asserted that coworker Ricky Bloor had relayed a statement by Demarest that plaintiff "should not stay too long" after his shift ended. Plaintiff declared that he "respected" this request. Contrary to repeated suggestions in Safeway's brief, there is no evidence, controverted or otherwise, that Demarest ever gave plaintiff an order, instruction, or directive on this point, as distinct from a request or suggestion.
At 12:00 a.m. on May 31, 1998, plaintiff ended his last shift before taking a few days' vacation. He left the store shortly after midnight, but returned almost immediately in response to an urgent need to use the rest room.
Juarez testified that when she refused to admit plaintiff to the store, he became very agitated and irate, and began swearing. She said he "shoved [her] through the door to enter into the store," pushing her backwards with both hands. Brian Sparks testified in deposition that he saw the door hitting Juarez and defendant's "hand pushing her," and that, right after the incident, plaintiff approached Sparks and another employee in the parking lot to say he had pushed Juarez "gently" out of his way. However, plaintiff denies that he
After entering the store plaintiff went to a back room where he encountered Sparks. Plaintiff told Sparks that Juarez had "hassled" him "about getting back into the store to use the bathroom." He added that Juarez was a "fucking waste of air." On his way up the stairs he encountered Barbara Flagen-Spicher, who demanded an apology, which he gave her, for his language.
Meanwhile Juarez had called the police. When they arrived, Juarez told them plaintiff had pushed her. There is no indication that they took a report, or indeed took the matter seriously. Plaintiff testified that after advising him to take the matter up with his union, they left him talking to Juarez. He himself then left, but returned about an hour later in hopes of seeing fellow clerk Staci Siaris at the beginning of her shift. He testified that he wanted to give her some reading material, repay a small debt, and tell her about the incident with Juarez. He followed her into the store while carrying a lit cigarette. He testified that he had forgotten he had a cigarette in his hand, and that he left the store after a few seconds.
About 7:15 the next morning, after the store had opened, plaintiff returned in the hope of talking to Demarest about the previous night's incident. He knew that Demarest was on vacation but thought he might come in to check the books. When Demarest did not appear, plaintiff lingered around the store, making a series of purchases. During this time he spoke to several employees and customers. Two workers testified that he had alcohol on his breath.
When Demarest returned to work the next day (June 2, 1998), Juarez told him about her confrontation with plaintiff. He discussed the incident with Sparks and Flagen-Spicher, but never with plaintiff, who returned from vacation on June 7. On June 8, Demarest called Safeway's Security Department and spoke with security officer Darrell Harrison. Harrison testified that Demarest told him, "I have a problem at the store. Mr. Reeves is suspected of pushing Sandy Juarez, his front end manager, and I'd like you to take a look at it. I started a preliminary investigation. I talked to a couple employees. This is what they're telling me. It's obviously a security issue, possibly workplace violence, and come in and take over the investigation." There is no evidence that Demarest spoke to human resources before
On June 10, 1998, Demarest and Harrison summoned plaintiff away from his checkstand and told him they wanted to ask some questions. Plaintiff was troubled by the seriousness of their tone and said he wanted to arrange for union representation. Harrison postponed the meeting for that purpose while placing plaintiff on suspension. On June 17, plaintiff met with Harrison, another Safeway security agent, and a union representative. Plaintiff testified that the investigators asked him to recount the events of the evening of May 31 and peruse "a thick stack of Safeway rules." He told them that while he "did get in [Juarez's] face," he "didn't physically touch her." They asked why other witnesses would lie about what happened, and he said that there had been some incidents of sexual harassment and "other continuing problems" that might have supplied motives. Plaintiff explained that Sparks, in particular, felt "a lot of resentment ... for me after I had complained to him [sic] and after Sparks had apologized to four females in the store for having harassed them." Asked again if he explained these matters to investigators, he testified that Sparks and Prodes "did ... come up."
On or before June 30, 1998, Harrison called district manager Hollis to tell her the results of his investigation.
Hollis did not review plaintiff's personnel file before deciding to dismiss him. She considered the length of his service to Safeway but was unaware of his several commendations and did not consider them. She was unfamiliar with his version of the incident, including his claimed need to use the restroom, and did not know whether Harrison had talked to plaintiff during his investigation. She was also unaware of any reasons for any of the witnesses to shade the truth, and in particular had no knowledge that plaintiff had complained about sexual harassment prior to his discharge.
At some point after his phone call to Hollis, Harrison prepared a 10-page "Investigation
On July 1, 1998, Hollis sent plaintiff a letter stating that he was terminated "for violation of company policy and/or procedures." On March 4, 1999, the Department of Fair Employment and Housing sent him a "Right-to-Sue Notice." A year later, plaintiff brought this action charging Safeway and fictitious defendants with violating FEHA by discharging him in retaliation for his complaints about sexual harassment. Safeway moved for summary judgment, contending that plaintiff could not establish a causal link between these complaints and his discharge, and that even if he could, Safeway had a legitimate reason for the discharge which plaintiff could not show to be pretextual. The court rejected the first argument, finding that plaintiff had made a threshold showing of a causal link. However, the court ruled that "Defendant met its burden of showing that it had a legitimate, non-discriminatory reason for terminating Plaintiff," and that "Plaintiff failed to raise a triable issue of material fact in this regard." The court granted the motion, and entered judgment for Safeway. Plaintiff filed this timely appeal.
DISCUSSION
I. Defective Statement of Undisputed Facts
At the threshold we observe that defendant has made our task—and that of the trial court—considerably more burdensome by its failure to comply with the requirement of Code of Civil Procedure section 437c, subdivision (b)(1), that the moving party set forth "plainly and concisely all material facts which the moving party contends are undisputed." (Italics added.) Instead of stating clearly those material facts which actually are without substantial controversy, defendant offers a number of obliquely stated "facts" that are material only to the extent they are controverted, and uncontroverted only to the extent they are immaterial. For instance, defendant asserts various "undisputed facts" in terms not of relevant events but of what a witness has said about events, e.g., two Safeway employees "stated that Plaintiff followed them out of the store, telling them that he had moved Sandy Juarez out of the way by lightly/gently pushing her aside." It seems indisputably
This stratagem takes an arguably even worse turn in Safeway's assertion of "facts" in the form of supposed perceptions by witnesses. Thus it is said to be undisputed that "Brian Sparks overheard" something, and that "Sandy Juarez and Staci Siaris both witnessed" something. Ordinarily, however, the perceptions of witnesses are simply not "material facts," as that term is used in the summary judgment statute. The relevant question is whether the underlying facts—the events or conditions witnesses say they perceived—are established without substantial controversy. Defendant merely clouds the inquiry into that question by formulating the operative facts in the intermediate form of a witness's perceptions or statements.
We believe trial courts have the inherent power to strike proposed "undisputed facts" that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis. (See § 437c, subd. (b)(1).) Here, however, the court reached the merits of the motion, and we will do likewise.
II. Defense of Ignorance
On appeal from an order granting summary judgment "we must independently examine the record to determine whether triable issues of material fact exist. [Citations.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143 (Saelzler).) The question is whether defendant "`"conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." [Citation.]' [Citation.]" (Ibid.; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674, 25 Cal.Rptr.2d 137, 863 P.2d 207; see Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 335, fn. 7, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Guz) ["the issue ... is simply whether, and to what extent, the evidence submitted for and against the motion ... discloses issues warranting a trial"].) We must "consider[] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz, supra, 24 Cal.4th at p. 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) Moreover, "we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. [Citations.]" (Saelzler, supra, 25 Cal.4th at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar) [trial court must view evidence and inferences "in the light most favorable to the
Safeway first asserts that because Hollis did not know about plaintiff's complaints of sexual harassment, plaintiff cannot possibly show that his discharge was caused by those complaints. There is no doubt that a necessary element of plaintiff's case is a "causal link between [his] protected activity and the employer's action. [Citation.]" (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522.) After all, FEHA prohibits adverse treatment "because of" protected activities. (Gov.Code, § 12940, subd. (h).) However, on this record Hollis's ignorance of plaintiff's protected activities is not enough, by itself, to either conclusively negate this element or to establish plaintiff's inability to prove it at trial.
Defendant cites cases holding that an employer cannot be liable for retaliation (or discrimination) if it was unaware of the plaintiff's protected activities (or attributes). (Cohen v. Fred Meyer, Inc. (9th Cir.1982) 686 F.2d 793, 796 (Cohen); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70, 105 Cal.Rptr.2d 652 (Morgan); see Gunther v. County of Washington (9th Cir.1979) 623 F.2d 1303, 1316 (Gunther); McCollum v. Bolger (11th Cir.1986) 794 F.2d 602, 610 (McCollum); Talley v. United States Postal Service (8th Cir.1983) 720 F.2d 505, 508 (Talley); Moore v. Reese (D.Md.1993) 817 F.Supp. 1290, 1298 (Moore).) These cases are rooted in the commonsense notion that one cannot be motivated by an event or condition of which one is wholly ignorant. I may have many reasons to plant a tree in front of my neighbor's window, but retaliation for his trespassing on my property cannot be one of them if I have no inkling of his having done it. By the same practical logic, if a worker's protected activities are completely unknown to his or her employer, no act by the employer can be said to have been taken "because of" those activities.
This concept—which for convenience we will call the "defense of ignorance"— poses few analytical challenges so long as the "employer" is conceived as a single entity receiving and responding to stimuli as a unitary, indivisible organism. But this is often an inaccurate picture in a world where a majority of workers are employed by large economic enterprises with layered and compartmentalized management structures. In such enterprises, decisions significantly affecting personnel are rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of "the employer" may be fraught with ambiguities, untested assumptions, and begged questions.
The issue in each case is whether retaliatory animus was a but-for cause of the employer's adverse action. (See Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665, fn. 6, 8 Cal.Rptr.2d 151 (Clark), quoting McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 282, fn. 10, 96 S.Ct. 2574, 49 L.Ed.2d 493 [plaintiff need not show action was taken "`solely on the basis of his race'"; "`no more is required to be shown than that race was a `but for' cause'"]; Brown v. Smith (1997) 55 Cal.App.4th 767, 783, 64 Cal.Rptr.2d 301
This point was implicitly recognized in Clark, where the court wrote that a plaintiff claiming discrimination in the denial of academic tenure "`need not prove intentional discrimination at every stage of the review process.... [I]t plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision.' [Citation.]" (Clark, supra, 6 Cal.App.4th at pp. 665-666, 8 Cal.Rptr.2d 151, quoting Roebuck v. Drexel University (3d Cir.1988) 852 F.2d 715, 727.)
Again the point may be easily illustrated. A supervisor annoyed by a worker's complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. Another manager, accepting the fabricated case at face value, may decide, entirely without animus, to discharge the plaintiff. It would be absurd to say that the plaintiff in such a case could not prove a causal connection between discriminatory animus and his discharge. The situation is equivalent to one in which the supervisor simply fires the worker in retaliation for protected conduct. The supervisor's utilization of a complex management structure to achieve the same result cannot have the effect of insulating the employer from a liability that would otherwise be imposed.
Of the pertinent cases we have reviewed, the vast majority may be understood to acknowledge, at least by implication, that ignorance of a worker's protected activities or status does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision. (See Fisher v. Vassar College (2d Cir.1997) 114 F.3d 1332, 1338, fn. 4 (en banc) ["the fact of multiple decision-makers should not insulate decisions permeated by the discrimination
A few decisions fail to reflect this awareness.
Here defendant's claim of ignorance focuses exclusively on the undisputed fact that district manager Hollis, who made the formal decision to terminate plaintiff's employment, did not know of plaintiff's complaints about sexual harassment. But it is clear that Hollis was not the only actor who materially contributed to plaintiff's discharge. Judging from her deposition testimony, her decision really amounted to little more than the ratification of Harrison's recommendation, which was itself the penultimate event in a chain commencing with a report to Demarest from night manager Juarez, followed by Demarest's referral to Safeway's security department, which produced a debatably evenhanded "investigation" by Harrison (see following part), which concluded with the recommendation adopted by Hollis. Hollis's decision to discharge plaintiff was based entirely on
III. Nonretaliatory Motive
A. Principles
Defendant's second argument is, in essence, that plaintiff failed to present sufficient evidence of retaliatory animus to effectively controvert defendant's showing that his discharge rested on a genuinely held, nonretaliatory motive, i.e., a belief that he had engaged in serious misconduct warranting dismissal.
Both parties seem to accept that defendant's claim of a legitimate nondiscriminatory reason for discharging plaintiff should be analyzed within the three-step analytical framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (McDonnell Douglas).
Here it is undisputed that Safeway has articulated a legitimate nondiscriminatory reason for its actions with respect to district manager Hollis, who made the ultimate decision to discharge plaintiff.
B. Cat's Paw
As previously noted, ignorance of an occasion for retaliation can only constitute a defense as to those actors who were in fact ignorant of the plaintiff's protected activities. Similar principles apply to characterizing an action as resting on a discriminatory or nondiscriminatory motive. To establish an entitlement to judgment as a matter of law, it is not enough to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action. If a supervisor makes another his tool for carrying out a discriminatory action, the original actor's purpose will be imputed to the tool, or through the tool to their common employer.
The clearest explication of this concept was provided by Judge Posner in Shager v. Upjohn Co., supra, 913 F.2d 398. The district court there granted the employer's motion for summary judgment, in part because the plaintiff had been discharged by decision of a "Career Path Committee," whose members did not appear to have acted with discriminatory animus. In reversing, Judge Posner wrote that the committee's decision to fire the plaintiff did not necessarily insulate the employer from the age-related animus exhibited by the plaintiff's supervisor Lehnst; rather the decision "was tainted by Lehnst's prejudice" because he "not only set up Shager to fail by assigning him an unpromising territory but influenced the committee's deliberations by portraying Shager's performance to the committee in the worst possible light." (Id. at p. 405.) In language with distinct parallels to the facts a jury might find here, Judge Posner explained further: "Lehnst's influence may well have been decisive. The committee's deliberations ... were brief, perhaps perfunctory; no member who was deposed could remember having considered the issue. A committee of this sort, even if it is not just a liability shield invented by lawyers, is apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible evidence that one of his sales representatives should be discharged; the committee was not conversant with the possible age animus that may have motivated Lehnst's recommendation. If it acted as the conduit of Lehnst's prejudice—his cat's-paw—the innocence of its members would not spare the company from liability.
The Supreme Court cited Shager with approval in Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633. Moreover, in Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 151-152, 120 S.Ct. 2097, 147 L.Ed.2d 105 (Reeves), the court substantially adopted such a theory, holding that an employer was not entitled to judgment as a matter of law where a discharged worker presented evidence of age-based animus on the part of his supervisor and where, although the decision to terminate was made by the company president (the supervisor's wife), the supervisor could be found principally responsible for the decision. The "cat's paw" model, or a functional equivalent, has also been adopted or referred to approvingly in all but one of the federal circuits.
We have no doubt that California law will follow the overwhelming weight of federal authority and hold employers responsible where discriminatory or retaliatory actions by supervisory personnel bring about adverse employment actions through the instrumentality or conduit of other corporate actors who may be entirely innocent of discriminatory or retaliatory animus. We now consider the application of these principles to the facts of record.
C. Application
The situation here is more complicated than in Shager because the process leading to plaintiff's dismissal involved not two principal actors but four: Juarez, who reported the May 31, 1998 confrontation with plaintiff as a battery; Demarest, who reported the incident to security as an instance of "possible workplace violence"; Harrison, who conducted an investigation of the incident; and Hollis, who adopted Harrison's recommendation and formally discharged plaintiff. To establish an entitlement to judgment Safeway had to address the conduct, role, and motives of each of these actors; instead it addressed only the role and motives of the last, Hollis. This showing was arguably insufficient to carry Safeway's threshold burden on summary judgment, because it failed to show that "the employer" acted for a legitimate nondiscriminatory reason or that plaintiff could not prove otherwise. However, even if Safeway is assumed to have carried its moving burden, thereby shifting the burden to plaintiff to raise one or more material triable issues of fact, we find that the record does raise such issues because it justifies an inference that lower level actors engaged in retaliation under circumstances justifying an imputation of their conduct and motives to Safeway.
We address the role of the first actor, Juarez, only in passing, because neither party has directed any attention to the question of whether her position would justify an imputation of her motives to Safeway. (See fn. 9, ante.) We note only the bare possibility that she may have occupied some sort of supervisory role, and might be found to have engaged in retaliation, as suggested by Stephanie Alves's listing of Juarez among the coworkers by whom she had been sexually harassed at Safeway. Another employee testified that a few days after the incident, when he asked Juarez what had happened, and whether "Bill had pushed her or knocked her down," she replied, "`He touched me, and that's all there is' or `all it takes.'"
Whatever the role of Juarez may have been, the evidence presents ample basis for finding retaliatory motives and conduct on the part of plaintiff's unquestioned supervisor, Demarest. There is evidence that Demarest resented and opposed plaintiff's efforts to secure relief for the women in the store from what plaintiff believed (with the agreement of at least some of them) was a pattern of sexual harassment. Demarest did not relay these complaints to human resources (as Hollis said he should have done), but professed to have conducted an investigation of his own (as she said he should not have done). A jury could doubt the zeal and sincerity with which the investigation was conducted, and even question whether it occurred, given Demarest's denial that anyone corroborated plaintiff's complaints—a denial which stands in stark contrast to Stephanie Alves's testimony that she directly complained to Demarest, with no discernible effect. The record contains other evidence that Demarest showed insensitivity, at best, to matters of gender: He assigned a female worker to paint the men's room, and he made comments to two other female workers that they found overly personal and offensive—telling one that she "needed to start working out" and that he was going to pull out all her gray hairs.
Further, Demarest's conduct following receipt of Juarez's report could be found to be retaliatory in character. Although he apparently had ample time and opportunity to speak to plaintiff about the underlying incident, he did not do so. Instead he acted entirely on the basis of accounts from Juarez and Sparks, each of whom had a reason—which could well have been
Finally there is substantial evidence that Demarest knew such a referral was substantially certain to result in the dismissal of a 29-year veteran employee. He testified that every case he ever referred to security resulted in dismissal where it involved "an allegation of improper conduct" comparable to the allegations against plaintiff.
This brings us to the third actor, Harrison. Again the record is devoid of direct evidence that he acted without retaliatory motive. The record includes no testimony by him concerning his reasons for recommending that Hollis dismiss plaintiff. Defendant made some attempt to establish as an undisputed fact that Harrison was unaware of plaintiff's protected activities, but the attempt failed. Harrison's only positive denial of knowledge in deposition concerned awareness that plaintiff had complained about Sparks, and even that testimony could be found both equivocal and controverted. When asked whether he recalled plaintiff speaking of "complaints by a woman of sexual harassment describing a sniffing incident," Harrison replied, "No. [¶] ... [¶] Sniffing, no." Asked whether he recalled plaintiff mentioning that he had complained about Sparks's behavior, Harrison said, "No. I don't recall that." His memory also failed him with respect to why his file on plaintiff's case contained a copy of "the corporate policy on the prevention of sexual harassment that is signed by Bill Reeves."
Likewise Harrison acknowledged that he probably asked plaintiff whether he "ha[d] anything against any individuals," or thought "anyone doesn't like you." Harrison could not recall plaintiff's answers, and when he was specifically asked in deposition whether plaintiff "mention[ed] anything about [sexual harassment]," he seemed uncertain or evasive, replying, "I'm trying to recall. He mentioned something about pulling the girls' hair, and that's what kind of stuck in my mind. And I didn't know if that was a physical situation or a description that he was using." Either way, of course, the phrase may be found to suggest either an incident or an ongoing course of sexual harassment.
While Harrison's deposition testimony on these matters may support conflicting interpretations, "the task of disambiguating ambiguous utterances is for trial, not for summary judgment." (Shager, supra,
Read most favorably to plaintiff, as is required on summary judgment, this evidence raised a triable issue of fact as to whether plaintiff told Harrison about the complaints of sexual harassment plaintiff had relayed to Demarest. Defendant made no affirmative showing to the contrary. Nor did it attempt to show that Harrison acted for honestly held nondiscriminatory reasons, and even if it had, the evidence supports an inference that Harrison acted as a sort of institutionalized "cat's paw" to effectuate the retaliatory intentions of supervisors by substantiating their claims of misconduct and presenting the claims, thus reinforced, to upper management.
The evidence supports an inference that Harrison's investigation of the alleged misconduct was not truly independent, but was heavily skewed to favor the ostensibly tentative conclusions of the reporting supervisor, Demarest. Describing his general role in deposition, Harrison hypothesized a situation where two employees are arrested in the act of stealing and stated, "I know [when] dealing with Ms. Hollis . . ., if we have a case that solid termination is inevitable." (Italics added.) We note the contrast between this construction, which contemplates having a "solid case" against an employee, and a more neutral construction such as, "When the facts are that clear, dismissal is inevitable." A fact finder would be entitled to infer that an investigator who speaks and thinks in terms of "solid cases" against workers is revealing a predisposition to confirm disciplinary charges rather than objectively ascertain their truth. This in itself is not actionable, but it means that such an investigator is of necessity a cat's paw—a conduit for imputation of discriminatory animus—as to any supervisor who wishes to discriminate against a worker by exploiting a disciplinary process predisposed to confirm all charges.
A fact finder could easily find that Harrison conducted just such a predetermined investigation. His report describes Juarez as "Victim"—not "complainant" or "accuser"—and plaintiff as "Suspect"—not "accused." Insofar as it concerns the all-important confrontation between Juarez and plaintiff, its purported "account of what ... occurred" depends exclusively on the accounts of Juarez and Sparks—one of whom had committed herself to a claim of battery by attempting to escalate plaintiff's reentering the store into a police incident, and the other of whom had an obvious and substantial motive to wish plaintiff ill. Plaintiff's own account of the
Further, in describing plaintiff's account Harrison uses vaguely disparaging language, stating most strikingly, "Reeves claimed that he had an attack of diarrhea due to medication he was taking." (Italics added.) In an appendix to the report Harrison attempted to debunk this "claim" on grounds a fact finder could find highly conjectural and partisan.
Moreover, Harrison could be found to have presented plaintiff's "case" to Hollis in a highly unbalanced way, making it appear "solid," largely by failing to tell her about the numerous potential ameliorating circumstances. These included plaintiff's claim of an urgent biological necessity for reentering the store, the potential reasons for Sparks and Juarez to exaggerate plaintiff's conduct, and the presence at the store of a claimed atmosphere of sexual harassment that might have colored the decision of the complaining supervisor, Demarest, to treat plaintiff's conduct as an issue for security rather than for human resources.
More basically, and in marked contrast to Harrison's searching examination of plaintiff's excuse for re-entering the store, there is no evidence that he ever questioned Demarest's view that the incident was a case of "workplace violence." Indeed there is no evidence that he thought it was his function to do so—or for that matter, to investigate exculpatory information of any kind. A jury could find a telling lack of thoroughness in the fact that, for all the time that passed between the incident and Harrison's call to Hollis, two witnesses who gave exculpatory testimony in deposition were never interviewed.
A fact finder could conclude that Harrison saw his function not as gathering objective evidence to pass to Hollis but as lending credence to Demarest's report that "workplace violence" had occurred. From this it follows that whether or not Harrison personally felt retaliatory animus towards plaintiff, the purpose and effect of his involvement was merely to effectuate the will of Demarest. He made himself a tool, witting or unwitting, for a supervisor who might wish, as Demarest could be found to wish, to retaliate against workers for protected activities.
We emphasize that our analysis is confined to evaluating inferences which may, but need not, be drawn from this record. It is not for us to say whether they represent the best or only inferences. Our task must end with the conclusion that they are inferences a reasonable fact finder could draw. Here a rational fact finder could
DISPOSITION
The judgment is reversed.
WE CONCUR: PREMO and ELIA, JJ.
FootNotes
"Mixed motive" analysis was formerly held unavailable unless the plaintiff offered "direct" evidence of discriminatory motive— whatever that means. (Price Waterhouse, 490 U.S. at pp. 277-278, 109 S.Ct. 1775.) However Congress and the Supreme Court have lifted that restriction for at least some federal claims. (Desert Palace, 539 U.S. at pp. 101-102, 123 S.Ct. 2148.) This raises the possibility —some would say "hope"—that the "mixed motive" approach may displace all but the first stage of the McDonnell Douglas framework. That framework is perfectly serviceable when confined to its proper field of operation, but its frequent misconstruction has led too many courts to replace basic principles of procedure, evidence, and logic with elaborate and essentially arbitrary obstacles to relief.
Foremost among these is the notion, which pervades innumerable decisions, that on summary judgment in a case of this kind, the "ultimate issue" is "pretext." (Hugley v. Art Institute of Chicago (N.D.Ill.1998) 3 F.Supp.2d 900, 906, fn. 7.) Certainly "pretext" is a useful term for encapsulating certain recurring concepts or patterns in a discrimination case, but calling it the "ultimate issue" is like saying, in a traffic case where two drivers give mutually irreconcilable testimony about who had the green light, that the "ultimate issue" is "perjury." In both cases one can decide the real ultimate issue—the state of the traffic signal, or the role of discriminatory animus—without deciding that one version of events was perjurious, or that a stated reason was "pretextual." We do not doubt that a general correlation exists between pretext and discrimination: If the fact finder in a FEHA case refuses to credit an employer's innocent explanation, and finds that the employer really acted for retaliatory or discriminatory reasons, it will usually be accurate to also conclude that the innocent explanation was a "pretext." The confusion arises when the correlative conclusion is viewed as a necessary prerequisite, so that the "pretext" tail wags the whole anti-discrimination dog. As conceived by the high court in McDonnell Douglas and its sequelae, "pretext" is merely one way of raising an inference of discrimination-not an indispensable precondition to such an inference.
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