McDonnell Douglas burden-shifting analysis in California

2025(See Yanowitz, supra, 36 Cal.4th at p. 1062 [“triable issues of fact as to whether [employer’s] heightened response . . . was retaliation”]; see also Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172 [“Showing disparate treatment or policy enforcement is a permissible means to establish pretext.”].) 7 Both parties assume the McDonnell Douglas burden shifting test for FEHA retaliation also applies to section 6310 retaliation.

2025(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) “FEHA retaliation claims are subject to the McDonnell Douglas burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942 .) Gardea contends she engaged in a protected activity by reporting Kissinger’s alleged “discriminatory and harassing racial remarks” to Escoto, Savastano, and Williams.

2025(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 354–355 (Guz).) The California Supreme Court has made it clear, however, that the traditional McDonnell Douglas burden-shifting test was designed for use in cases involving a single motive for the adverse action, that is, in “cases that do not involve mixed motives.” 17 (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris).) As the Court explained, this “framework . . . presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate

2023(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 333-334 .) In order to establish a prima facie case of retaliation under the McDonnell Douglas burden-shifting analysis, a plaintiff must show that he or she engaged in a protected activity, suffered an adverse employment action, and that “‘a causal link existed between the protected activity and the employer’s action.’” (Bareno, supra, 7 Cal.App.5th at p. 560 .) A “close temporal connection” between a medical leave and an adverse employment action can be “‘“strongly suggestive of retaliation.”’” (Id. at p. 571.) 3.

2026(Arteaga, supra, 163 Cal.App.4th at p. 353 [while temporal proximity may satisfy the prima facie burden in the first step of the burden-shifting process, “temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for termination”].) There is no merit to Kalin’s claim the trial court “fundamentally misapplied the McDonnell Douglas burden-shifting analysis by failing to properly scrutinize the evidence of pretext once Defendants offered their 24 purportedly legitimate reasons for the adverse

2017(Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 [ 60 Cal.Rptr.3d 45 ] (Loggins).) In order to establish a prima facie case for retaliation as required by the first prong of the McDonnell Douglas burden-shifting analysis, an employee must show “(1) he or she engaged in a ‘protected activity . . .’ [such as taking leave for a CFRA-protected purpose,] (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1

2023(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 333-334 .) In order to establish a prima facie case of retaliation under the McDonnell Douglas burden-shifting analysis, a plaintiff must show that he or she engaged in a protected activity, suffered an adverse employment action, and that “‘a causal link existed between the protected activity and the employer’s action.’” (Bareno, supra, 7 Cal.App.5th at p. 560 .) A “close temporal connection” between a medical leave and an adverse employment action can be “‘“strongly suggestive of retaliation.”’” (Id. at p. 571.) 3.

2023(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [applying McDonnell Douglas burden- shifting to claim of retaliation under FEHA]; Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560 [“CFRA retaliation claims . . . are subject to the McDonnell Douglas burden-shifting analysis [citation].”].) Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination or retaliation claim, the burden shifts to the employer to rebut the presumption of discrimination or retaliation by offering a legitimate, nondiscriminatory reason for

2022(Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 .) As discussed, we have applied the McDonnell Douglas burden-shifting analysis to Robertson’s claims and find that they cannot survive summary adjudication.

2017(Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 [ 60 Cal.Rptr.3d 45 ] (Loggins).) In order to establish a prima facie case for retaliation as required by the first prong of the McDonnell Douglas burden-shifting analysis, an employee must show “(1) he or she engaged in a ‘protected activity . . .’ [such as taking leave for a CFRA-protected purpose,] (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1

2022Code, § 1278.5 whistleblower protections]; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 [applying McDonnell Douglas framework to whistleblower provisions in Gov.

2022(See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52 , 67–69 (Morgan); Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 ; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz) [applying McDonnell Douglas to a discrimination claim under FEHA; citing cases]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [applying McDonnell Douglas to a FEHA retaliation claim; citing cases].) As we explained in Guz, the high court established the McDonnell Douglas framework for trying claims of intentional discrimination — there, intentional emplo

2022(See Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144-1145 (Trop) [McDonnell Douglas burden-shifting test applies in discrimination cases except in the rare instance where there is direct evidence of discriminatory motive]; DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550 [“ ‘ “McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination” ’ ”] (DeJung); see Title VII and the California Fair Employment and Housing Act, Cal. Practice Guide Employment Litigation, Ch. 7-A, § 452 [“If the direct evidence of a biased motivat

2015(Mokler, supra, 13 157 Cal.App.4th at p. 138 ; see DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 549 (DeJung).) The McDonnell Douglas burden-shifting framework applies only to claims based on circumstantial evidence.

2025(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 354–355 (Guz).) The California Supreme Court has made it clear, however, that the traditional McDonnell Douglas burden-shifting test was designed for use in cases involving a single motive for the adverse action, that is, in “cases that do not involve mixed motives.” 17 (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris).) As the Court explained, this “framework . . . presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate

2017In Harris v. City of Santa Monica (2013) 56 Cal.4th 203 , 152 Cal.Rptr.3d 392 , 294 P.3d 49 ( Harris ) the California Supreme Court recognized the traditional McDonnell Douglas burden-shifting test was intended for use in cases presenting a single motive for the adverse action, that is, in "cases that do not involve mixed motives." ( Id. at p. 214, 152 Cal.Rptr.3d 392 , 294 P.3d 49 .) As the Court explained, this "framework ... presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate.

2021(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250 .) Here, in granting summary adjudication on Choochagi’s CFRA claim, the trial court found that Barracuda had established a “legitimate, non-retaliatory reason for [Choochagi’s] termination,” and that Choochagi failed to “present evidence” in opposition to show that “Barracuda’s proffered reason was pretextual” and that the “single day he requested and took off . . . 1 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . 11 was a substantial motivating factor in his termination.” The trial court thus stated its str

2020(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250 .) Here, in granting summary adjudication on Choochagi’s CFRA claim, the trial court found that Barracuda had established a “legitimate, non-retaliatory reason for [Choochagi’s] termination,” and that Choochagi failed to “present evidence” in opposition to show that “Barracuda’s proffered reason was pretextual” and that the “single day he requested and took off . . . 1 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . 11 was a substantial motivating factor in his termination.” The trial court thus stated its str

2022(See Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144-1145 (Trop) [McDonnell Douglas burden-shifting test applies in discrimination cases except in the rare instance where there is direct evidence of discriminatory motive]; DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550 [“ ‘ “McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination” ’ ”] (DeJung); see Title VII and the California Fair Employment and Housing Act, Cal. Practice Guide Employment Litigation, Ch. 7-A, § 452 [“If the direct evidence of a biased motivat

2016(Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 68 .) If the employer produces evidence showing a legitimate reason for the adverse employment action, ‘the presumption of retaliation “ ‘ “drops out of the picture” ’ ” ’ [citation], and the burden shifts back to the employee to provide ‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or 19 pretextual.” (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1108-1109 (Loggins).)8 California courts have split regarding how the McDonnell Douglas burden-shifting frame

2023While the McDonnell Douglas test provides a method of analyzing employment discrimination questions in the summary judgment context, “[t]he central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 ; see Guz, supra, 24 Cal.4th at p. 361 , fn. omitted [“the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanati

2022(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193 [“Like claims for discrimination, retaliation claims are subject to the McDonnell Douglas burden-shifting analysis.”]; Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 830 [applying McDonnell Douglas framework to whistleblower claim under Health & Saf.

2019(See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 , 802, 93 S.Ct. 1817 , 36 L.Ed.2d 668 ; Guz v. Bechtel National , Inc. (2000) 24 Cal.4th 317 , 354, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ( Guz ) [California has adopted the McDonnell Douglas burden-shifting framework for discrimination claims alleging disparate treatment]; Rashdan v. Geissberger (9th Cir. 2014) 764 F.3d 1179 , 1182 [title VI] ; Trigueros v. Southwest Airlines (S.D.Cal., Aug. 30, 2007, No. 05-CV-2256-L(AJB) ) 2007 WL 2502151 , pp. *1-2, 2007 U.S.Dist.

2019(See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 ; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz) [California has adopted the McDonnell Douglas burden-shifting framework for discrimination claims alleging disparate treatment]; Rashdan v. Geissberger (9th Cir. 2014) 764 F.3d 1179, 1182 [title VI]; Trigueros v. Southwest Airlines (S.D.Cal., Aug. 30, 2007, No. 05-CV-2256-L(AJB)) 2007 U.S.Dist.

2017(See Weigel v. Target Stores (7th Cir. 11 1997) 122 F.3d 461, 464 [“in failure to accommodate claims the McDonnell Douglas framework is ‘unnecessary and inappropriate’ ”].) Finally, the FEHA prohibits an employer from harassing an employee “because of . . . physical disability.” (§ 12940, subd. (j)(1).) Cornell’s claim of disability harassment requires a showing “ ‘that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].’ ” (Hope

2017(See *927 Weigel v. Target Stores (7th Cir. 1997) 122 F.3d 461 , 464 ["in failure to accommodate claims the McDonnell Douglas framework is 'unnecessary and inappropriate' "].) Finally, the FEHA prohibits an employer from harassing an employee "because of ... physical disability." ( § 12940, subd. (j)(1).) Cornell's claim of disability harassment requires a showing " 'that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].' " ( H

2017(See Reid v. Google, Inc. (2010) 50 Cal.4th 512 , 520, fn. 2, 113 Cal.Rptr.3d 327 , 235 P.3d 988 ( Reid ); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 354, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ["[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes"].) The McDonnell Douglas test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.

2017(See Reid v. Google, Inc. (2010) 50 Cal.4th 512 , 520, fn. 2, 113 Cal.Rptr.3d 327 , 235 P.3d 988 ( Reid ); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 354, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ["[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes"].) The McDonnell Douglas test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.

2026(Harris, supra, 56 Cal.4th at pp. 214–215; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 , 111 & fn. 11 (Reeves) [“ ‘pretext’ is merely one way of raising an inference of discrimination—not an indispensable precondition to such an inference”].) As our Supreme Court explained in Harris, the McDonnell Douglas test “presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate.

2025(See Yanowitz, supra, 36 Cal.4th at p. 1062 [“triable issues of fact as to whether [employer’s] heightened response . . . was retaliation”]; see also Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172 [“Showing disparate treatment or policy enforcement is a permissible means to establish pretext.”].) 7 Both parties assume the McDonnell Douglas burden shifting test for FEHA retaliation also applies to section 6310 retaliation.

2024(E.g., Zampierollo-Rheinfeldt v. Ingersoll-Rand De P.R., Inc. (1st Cir. 2021) 999 F.3d 37, 50 (Zampierollo-Rheinfeldt) [“If the plaintiff ‘provides direct evidence of discrimination, the issue may be put to a finder of fact without further ado.’ ”].) Zampierollo-Rheinfeldt is instructive.

2023(Shelley v. Green (9th Cir. 2012) 666 F.3d 599, 607 [“The McDonnell Douglas test is used on summary judgment, not at trial.”]; Costa v. Desert Palace, Inc. (9th Cir. 2002) 299 F.3d 838, 855 , fn. omitted [“it is not normally appropriate to introduce the McDonnell Douglas burden-shifting framework to the jury”]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 [“the construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be 10. understood and applied by the jury in

2023(Shelley v. Green (9th Cir. 2012) 666 F.3d 599, 607 [“The McDonnell Douglas test is used on summary judgment, not at trial.”]; Costa v. Desert Palace, Inc. (9th Cir. 2002) 299 F.3d 838, 855 , fn. omitted [“it is not normally appropriate to introduce the McDonnell Douglas burden-shifting framework to the jury”]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 [“the construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be 10. understood and applied by the jury in

2023(Serri v. Santa Clara University, supra, 226 Cal.App.4th at p. 862 [“ ‘substantial responsive evidence’ ” must be produced demonstrating the existence of a material triable controversy as to pretext or discriminatory animus].)2 Assuming, as CUA contends, that the McDonnell Douglas burden-shifting analysis applies in this contractual context, we find the City adequately shifted the burden of producing evidence when it put forward non- discriminatory reasons for declining to assign more waste hauling projects to CUA.