Schechner v. KPIX-TV: Ninth Circuit Issues Disparate Treatment Age Discrimination Decision

In Schechner v. KPIX-TV (9th Cir. 5/29/12) --- F.3d ---, the Ninth Circuit Court of Appeal addresses the use of statistical evidence in disparate treatment age discrimination cases. The Court summarized the case as follows:

Plaintiffs William Schechner and John Lobertini were television news reporters at KPIX-TV, one of the two San Francisco affiliates of CBS Broadcasting, Inc. They were laid off after CBS issued a directive requiring each of its affiliates to reduce its annual budget by ten percent. Schechner and Lobertini were sixty-six and forty-seven years old, respectively, when they lost their jobs. They brought suit alleging that KPIX discriminated against them on the basis of age and gender, in violation of California law. The district court [N.D.Cal., Judge Marilyn Hall Patel] granted KPIX’s motion for summary judgment, dismissing all of Plaintiffs’ claims. We affirm. We write to clarify that a plaintiff can make out a prima facie case of disparate-treatment age discrimination using statistical evidence, even where that evidence does not account for the defendant’s legitimate nondiscriminatory reason for the discharge.

The district court properly applied the McDonnell Douglas burden-shifting analysis, but erred in collapsing the three-step analysis into a single step.  "We clarify that a plaintiff’s statistical evidence need not necessarily account for an employer’s proffered non-discriminatory reason for the adverse employment action to make a prima facie case of discrimination."  

The employee in an age discrimination case makes a prima facie case of disparate treatment “by demonstrating that he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an inference of discrimination.’ ”

The plaintiffs' proffered statistical evidence of discrimination satisfied the fourth element of this test, even though it failed to account preemptively for the defendant’s proffered non-discriminatory reasons for discharge:  

Consistent with our precedents, we conclude that a plaintiff who submits statistical evidence that shows a stark pattern of age discrimination establishes a prima facie at step one of the McDonnell Douglas  framework. We hold that statistical evidence does not necessarily fail to establish a prima facie case because it does not address the employer’s proffered non-discriminatory reasons for the discharge. We do not hold that any statistical evidence of disparate treatment, regardless of its strength, will be sufficient to establish a prima facie case.

The Court then held that the defendant had met its burden of showing that it had a legitimate, non-discriminatory reason for its layoffs, and that the plaintiffs had failed to meet their burden of showing that this reason was pretextual.

The opinion is available here.