Free Appendix - District Court of California - California

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such circumstances, any independent circumstantial evi-

dence of discrimination is insuffcient to raise a rational
inference that Bechtel acted on grounds of prohibited bias.

Where an age-protected worker is directly replaced by a person not significantly younger, there may be no
basis to suspect a motive of

prohibited bias. (E. g., Max-

field v. Sinclair Intern. (3d Cir. 1985) 766 F.2d 788, 793;
cf. O'Connor v. Consolidated Coin Caterers Corp.

At the outset, Bechtel insists that an inference of intentional age discrimination is negated solely by the fact that Shaeffer, an older employee, assumed most of the duties Guz was performng before he was laid off. Guz

(1996) 517 U.S. 308 (116 S. Ct. 1307, 1~4 ~. ~d. .2d
433) (O'Connor) (logical inference of age discnmmnation may arise where replacement is significantly younger,

responds by citing facts he claims amount to a prima
facie showing that age bias infected the various personnel decisions leading to his release. Stripped to its essentials, Guz's case relies on the facts that despite his own qualifications and satisfactory performnce, (1) he, then

even if not below statutorily protected age). But where
jobs are eliminated and duties reallocated durg a gen-

eral work force reduction, the issue of discrimiatory motive becomes more complicated. In the context of a work force reduction, it has been said that the plaintiffs
failure to prove his direct" 'replacement by a younger

age 49, and thee of the other five BNI-MI employees (respectively ages 50, 45, and 44) were termnated by
Bechtel after that unit's elimination, while the only two

persons retained, Wraith, age 41, and Siu, age 34, were the youngest of the group, and (2) two of the three persons later hied by SFRO-MI while Guz was on holding status--Wallace, age 43, and Stenho, age 38--were significantly younger than he.

employee is "not necessarily fatal" , " to a claim of discrimination; instead, he need only show, prima facie, that persons signficantly younger, but otherwise similarly
situated, were" 'treated more favorably.' " (Nidds, supra,

113 F.3d 912, 917, quotig Washington v. Garrett (9th

Cir. 1994) 10 F.3d 1421, 1434; but see, e.g., Barnes v.
GenCorp Inc. (6th Cir. 1990) 896 F.2d 1457, 1465;

Simpson v. Midland-Ross Corp. (***388) (6th Cir.
1987) 823 F.2d 937,942-944 (Simpson). )

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LEXSEE 24 CAL. 4TH 317

JOHN GUZ, Plaintiff and Appellant, v. BECHTEL NATIONAL, INC., et al., Defendants and Respondents.

No. S062201.

SUPREME COURT OF CALIFORNIA
24 CaI. 4th 317; 8 P.3d 1089; 100 CaI. Rptr. 2d 352; 2000 CaI. LEXIS 7498; 16 i.E.R. Cas. (BNA) 1345; 84 Fair EmpI. Prac. Cas. (BNA) 64; 142 Lab. Cas. (CCH) P59,072; 2000 CaI. Daily Op. Service 8230; 2000 Daily Journal DAR 10929

October 5, 2000, Decided

NOTICE:
(EDITOR'S NOTE: PART 2 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.)

Law Offces of Steven Drapkin and Steven Drapkin for the Employers Group as Amicus Curiae on behalf of
Defendants and Respondents.

Lloyd C. Loomis for California Employment Law Coun-

PRIOR HISTORY: Superior Cour of the City and
County of San Francisco. Super. Ct. No. 964836. William J. Cahill, Judge.

cil as Amicus Curiae on behalf of Defendants and Respondents.

Cour of Appeal of Californa, First Appellate District, Division Four. A072984.

JUGES: Opinon by Baxter, J., with George, C. J.,
Mosk, Werdegar, Chin, and Brown, JJ., concurng. Concuring opinon by Mosk, J. (see p. 370). Concuring opinon by Chin, J., with Brown, J., concuring. (see p. 371). Concuring and dissenting opinion by Kennard, J.
(see p. 378).

DISPOSITION: For the reasons set forth herein the
judgment of the Cour of Appeal is reversed. The c~use is remanded to the Cour of Appeal for fuher proceedings consistent with this opinon.

OPINION

(*367) (**1121) (***388) A number of federal

COUNSEL: Bianco & Murhy, Stephen M. Murhy;
Quackenbush & Quackenbush and Wiliam C. Quackenbush for Plaintiff and Appellant.

decisions have applied the more-favorable-treatrent
priciple to conclude, on facts somewhat analogous to

those before us, that a prima facie inference of discrimination can arise from evidence that during a work force reduction, a satisfactory age-protected worker was laid

Thomas W. Osborne and Melvin Radowitz for the
American Association of Retired Persons as Amicus

Curiae on behalf of Plaintiff and Appellant.

off, while younger employees were retained in similar jobs, or were reassigned to positions for which the plaintiff also qualified. (E.g., Jameson v. Arrow Co. (11 th Cir.
1996) 75 F.3d 1528, 1533 (older layoff

Paul, Hastings, Janofsky & Walker, Paul Grossman, Paul W. Cane, Jr., John C. Oakes; Thelen, Marrin, Johnson &

candidate applied

for new assignment fittng his qualifications, but was

Bridges, Thelen Reid & Priest, Curis A. Cole, Janet F. Bentley, Clarice C. Liu, Michael Hallerud and Thomas
M. Mcinerney for Defendants and Respondents.

rejected for younger person); Cronin, supra, 46 F.3d
196, 204 (during work force reduction, employer located positions for younger, but not older, employees); Branson v. Price River Coal Co. (10th Cir. 1988) 853 F.2d

Gibson, Dun & Crutcher, Pamela L. Hemmnger and Kathleen M. Vanderziel for Californa Chamber of Commerce as Amicus Curiae on behalf of Defendants
and Respondents.

768, 771 (employer fired older employees but retained younger employees in similar positions); Coburn v. Pan American World Airways, Inc. (D.C. Cir. 1983) 711 F.2d 339, 342 (229 App.D.C. 61) (evidence that during work force reduction, plaintiff was "disadvantaged" in favor of

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younger person); see also Hebert v. Mohawk Rubber Co.

(1st Cir. 1989) 872 F.2d 1104, 1111 (evidence that while age-protected worker was laid off, younger workers were retained in the same position).

numerical favoritism of younger workers arose within an extremely small employee pool, cours have rejected any
consequent inference of intentional bias on grounds,

(**1122) However, in other cases where alleged

nel decision when filling the three later open positions, so that two of the three, rather than only one of the thee, were filled by persons older than Guz, Guz would have no statistical claim that Bechtel's failure to consider him for those jobs was the result of age discrimination.
(***389) Any

arguable discriminatory inference is

fuher diluted by other age-based evidence from which a

among others, that the sample was too miuscule to
demonstrate a statistically reliable discrimatory pattern. (See, e.g., Falls v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 745-746 (showing that a greater percentage of over-40 than under-40 workers were laid off is nonprobative because the relevant sample, 51 employees, was too small for statistical reliability); Sengupta v. Morrison-Knudsen Co., Inc. (9th Cir. 1986) 804 F.2d 1072, 1076 (showing that, among 28 employees, four of five laid off were Black did not establish prima facie case; statistical sample too small); see also Simpson, supra,

contrary conclusion might be drawn. Thus, while it is not dispositive that, consistent with Guz's earlier recommendation, his own duties went to an older worker, Shaeffer,

that fact signficantly undermines any suspicion that
chronological age influenced Guz's dismissaL. Similar

doubt arises from the fact that at age 52, Vreim, one of
the three workers later selected for an open position in SFRO-MI, was also older than Guz.

Moreover, an issue arises whether the younger persons with whom Guz seeks comparison were younger
enough to raise a logical suspicion of intentional age bias. Cours have differed about the exact gap in age that
is significant for puroses of a discriminatory inference.

823 F.2d 937, 943 (even if "age-weighted departe"
evidence, based on statistics, established prima facie
case, it was insuffcient to withstand employer's strong

showing of performnce-based reasons, where sample
was based on only 17 persons); cf. Mayor v. Educa-

(See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir.
1999) 181 F.3d 24, 31 (applying Massachusetts law:

tional Equality League (1974) 415 U.S. 605, 611 (94 S. Ct. 1323, 1329, 39 L. Ed. 2d 630) (where citien committee appointed by mayor had only 13 positions, statistical showing of race discrimination in appointments was not reliable where a change of only one person "meant an 8 change in racial composition").)
Here, for several reasons, we conclude the comparative-age evidence cited by Guz, even if barely adequate to demonstrate a prima facie case, is insuffcient for tral
in the face of Bechtel's strong contrary showing that its

prim facie case is established where duties of 49and 48year-olds were partially assumed by 25-year-old); Schiltz v. Burlington Northern R.R. (8th Cir. 1997) 115 F.3d 1407, 1413 (five-year age gap between plaintiff applicant and persons selected is not significant); Barber v. CSX Distribution Services (3d Cir. 1995) 68 F.3d 694, 699
(eight-year difference between plaintiff and successful

applicant is significant); Healy v. New York Life Ins. Co.

(3d Cir. 1988) 860 F.2d 1209, 1214 (replacement of 56year-old senior manager by person nine years younger is

reasons were umelated to age-related bias. In the first
place, the statistical inferences to be drawn from Guz's

significant); Douglas v. Anderson (9th Cir. 1981) 656
F.2d 528, 533 (replacement of 54-year-old bookstore

raw age comparisons are not nearly as (*368) strong as he implies. As suggested above, the premise that Bechtel purosely favored two workers on the basis of youth when deciding which BNI-MI employees to retain is
weakened, for statistical puroses, by the small size of that unit, which included only six persons. A similar analysis applies to the three other positions for which

manager by person five years younger is significant).) One federal circuit follows the rule that any gap less than

10 years is presumptively insignifcant, but the plaintiff can overcome the presumption with other evidence that the employer (**1123) considered his age significant. ( Hartley v. Wisconsin Bell, Inc. (7th Cir. 1997) 124 F.3d
887, 892-893; see also Richter, supra, 142 F.3d 1024,

1029.)
(*369) Here, Wraith, one of the two reassigned

Guz claims, or implies, he should have been considered
at SFRO-MI. 28

28 Thus, if Bechtel, when eliminating BNI-MI, had made only one different personnel decision, i.e., had retained BNI-MI's manager, Goldstein,
age 50, and had laid off the 34-year-old Siu, the

BNI-MI employees, and Wallace, who took one of the later open positions at SFRO-MI, were, like Guz, in their mid-career 40's. Wraith, at 41, was eight years younger
than the 49-year-old Guz, and Wallace, at 43, was only
six years younger. There is no independent indication

effect on Guz would be unchanged, but the statistics would indicate that Bechtel had favored

whatever that Bechtel considered the age differences

among these three workers significant. Of the four
younger persons Guz alleges were treated more favora-

workers over 40. Similarly, if SFRO-MI's manager, Tevis, had made only one different person-

bly than he, only two were over 10 years younger. Guz
does not dispute that one of these two, the 38-year-old

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Stenho, was uniquely qualified for her SFRO-MI job; she was hired, at the specific request of Bechtel Civil, to provide service to that offce, where she had previously worked. (See discussion, ante.) Under these circumstances, Guz's arithetic does not, in our view, strongly

clares that Marks "does not affect existing law"
governing state age discrimination claims, and

states the Legislatue's "intent that the use of salary as the basis for differentiating between employees when termnating employment may be

support a logical inference" 'that (Bechtel's) employment
decision(s) (were) based on a(n) (ilegal) discriminatory

criterion.''' (O'Connor, supra, 517 U.S. 308,312 (116 S. Ct. 1307, 1310), quoting Teamsters, supra, 431 U.S. 324,
358 (97 S. Ct. 1843, 1866), first thee brackets added,

found to constitute age discrimination if use of that criterion adversely impacts older workers as
a group." (Gov. Code, § 12941., italics added.) Guz has occasionally insinuated that Bechtel's decisions, particularly the elimination of BNI-MI and the retention of Siu, were discriminatory efforts to reduce salaries by releasing higher-paid

italics omitted.)

Any inference that Guz's raw age comparisons indicate age-based discrimiation is fuer blured by the

weak evidence that the workers retained or hied over
him were similar or comparable except for their dates of bir. Guz does not appear to dispute that the six individual members of the eliminated unt, BNI-MI, performed distinct duties at disparate ranks and levels of responsibility. The available SFRO-MI positions were also distinct, and it appears essentially undisputed that those jobs were filled by persons who fit their individual requirements as well as, or better than, Guz. As previously noted, most of these positions required considerable

older workers. However, Guz has never made a developed claim to that effect, and he has never
cited section 12941.1. In any event, while Bechtel

concedes that Johnstone sought to save costs by eliminating BNI-MI, any evidence that the motive was to eliminate senior salaries is no greater
or different than the evidence that the decision

disfavored older workers directly. Nor did Tevis's

decision to select one junor employee, Siu, for a
junor position have a disparate impact on older

workers as a group.
In sum, even without considering Bechtel's explana-

computer facility, while Guz's skills in ths area were
mediocre at best. The qualifications for Stenho's position

essentially excluded any other candidate for that job. These (***390) variances undermne any rational conclusion from the raw age data that age was a significant factor in Bechtel's decisions to choose others instead of
Guz. 29

tion, Guz's evidence raised, at best, only a weak suspicion that discrimiation was a likely basis (*370) for his release. Against that evidence, Bechtel has presented a plausible, and largely uncontradicted, explanation that it eliminated BNI-MI, and chose others over Guz, for reasons umelated to age. Indeed, Guz has raised little argument against Bechtel's fuer claim that, even if he was

29 In his deposition, James Tevis indicated that the SFRO-MI position for which Christine Siu
was hied was a junor one, commensurate with
her salary grade, three steps lower than Guz's.

minimally (**1124) qualified for the positions he lost, those persons who were actually chosen better fit Bechtel's needs.

Tevis conceded he considered Siu's salary level in

selecting her for the job. Before 1999, both state
and federal decisions had rejected the premise

Under these circumtances we conclude, as a matter of law, that Guz has failed to point to evidence raising a triable issue that Bechtel's proffered reasons for its actions were a pretext for prohibited age discrimination.

that prohibited age discrimination may be shown
solely by evidence that the employer's actions

Bechtel is therefore entitled to summary judgment on
this claim.

were taken for economic reasons often related to worker age, such as comparative salaries. ( Hazen
Paper Co. v. Biggins (1993) 507 U.S. 604 (113 S.

CONCLUSION

Ct. 1701, 123 L. Ed. 2d 338) (firing oflong-term employee to prevent immnent vesting of pension
rights did not violate federal age discrimination

For the reasons set forth herein, the judgment of the Cour of Appeal is reversed. The cause is remanded to
the Cour of Appeal for fuher proceedings consistent

law); Marks v. Loral Corp. (1997) 57 Cal. App.
4th 30, 42-64 (68 Cal. Rptr. 2d 1) (costor com-

with this opinion.

pensation-based personnel decisions which tend to disfavor higher paid older workers are no basis for claim of "disparate impact" age discrimiation
under either state or federal statutes). In 1999,

George, C. J., Mosk, J., Werdegar, J., Chin, J., and
Brown, J., concured.

CONCUR BY: MOSK; CHIN; KENNAR
CONCUR

however, the Legislatue amended the FEHA to
overrle Marks. ( Gov. Code, § 12941., added

by Stats. 1999, ch. 222, § 2.) The new statue de-

MOSK, J.

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. I concur in the majority opinion. I write separately to clanfy what may appear to be an inconsistency between
parts II and iv of that opinion.
employment. These possibilities remain to be determned on remand and, if appropriate, at triaL.

In part II, the majority hold that there was insuffcient evidence from which a reasonable jury could conclude that Bechtel National, Inc.'s (BNI) business reorganization was merely a pretext to termnate John Guz. There is therefore no triable issue that BNI breached its implied contractual obligation by failing to follow the "progressive discipline" policy promised in its policy manual to its employees before they are discharged for poor performnce. The majority do not decide, however,
whether there is a triable issue regarding BNI's breach of

CHIN, J., Concuring.
I agree with the majority. I write separately to state ~nother reason the trial cour correctly granted summary Judgment against plaintiff John Guz on the age discrimination claim: Even after "extensive discovery" (maj.

opn., ante, at p. 327), Guz has produced no credible evi-

dence that defendants Bechtel National, Inc., and Bechtel

Corporation (collectively Bechtel) discharged him behis age. (**1125) Bechtel, the moving part on summary judgment, has met its burden of showing that
cause of

its own layoff policies, and leave this question to the
Cour of Appeal on remand. If the Cour of Appeal con-

Guz cannot state a prima facie age discrimination case.
Accordingly, Bechtel had no duty even to rebut Guz's

cludes (***391) there is (*371) such a triable issue and if Guz is able to prove at trial that these policie~
were breached, and that if he had been fairly considered for a position as dictated in the policies, he would more likely than not have retained his job, then Guz wil have
proved a contractual wrongful termnation and be eligi-

age discrimiation claim, although I agree that it also did
so.

JUGMENT

(*372) i. THE LEGAL STANDAR FOR SUMMARY

ble for the usual damages associated with such a termation.

To prevail at trial, indeed, to avoid a nonsuit, the
plaintiff bears the burden of establishig a prima facie case of discrimiation. (See generally McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (93 S. Ct. 1817, 36 L. Ed. 2d 668); maj. opn., ante, at pp. 354-355; Cald-

In part iv, the majority conclude that there is insufficient evidence from which a reasonable jur could conc~ud~ ~at ~NI's termation of Guz was based on age
discnmmnatton. In so doing, the majority view this case
as fittng into the class of cases discussed in Reeves v.

well v. Paramount Unifed School Dist. (1995) 41 Cal. A?p. 4th 189, 203-204 (48 Cal. Rptr. 2d 448). I agree
with the majority regarding what this prima facie burden is. It is not onerous, but the plaintiff must show that the
employer's actions, if unexplained, support an inerence

Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148-149 (120 S. Ct. 2097, 2109, 147 L. Ed. 2d 105), in

wh~ch "although the plaintiff has established a prima facie case and set forth suffcient evidence to reject the
defendant's explanation, no rational factfinder could conclude that the action was discriminatory." The Reeves
cour elaborated, by way of example, that "an employer

that they were more likely than not based on a prohibited
discriminatory criterion. (Maj. opn., ante, at p. 355.)

Specifically, the plaintiff must show some "circumstance

(that) suggests discriminatory motive." (Ibid.; see also
O'Connor v. Consolidated Coin Caterers (***392)

would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscrimiatory reason for the employer's decision, or if the plaintiff
created only a weak issue of fact as to whether the em-

Corp. (1996) 517 U.S. 308, 312 (116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433). i
1 Much of the concuring and dissenting opinon is irelevant to the majority's holding. The majority does not suggest that age discrimination is

ployer's reason was untre and there was abundant and
uncontroverted independent evidence that no discrimination had occured." (530 U.S. at p. 148 (120 S. Ct. at p. 2109).) Although the question is close, I agree with the majority that, in light of Guz's concessions as to the nondiscriminatory natue of many of BNI's actions and in
light of the weakness of Guz's prim facie case tÌs case

lawful; it clearly is not. ( Gov. Code, § 12941,
subd. (a); see maj. opn., ante, at p. 353, fn. 19.)

The majority merely holds that the evidence in
this case does not suggest Bechtel engaged in age discrimination. For example, the discussion of Marks v. Loral Corp. (1997) 57 Cal. App. 4th 30 (68 Cal. Rptr. 2d 1) (conc. & dis. opn. of Kennard, post, at p. 382) is utterly irelevant. Bechtel never asserted a right to discharge older workers
in favor of lower-salaried younger workers to

fits into the relatively narrow class of cases ref~rred to in
Reeves.

Nonetheless, although BNI apparently had a nondis-

criminatory reason for termnating Guz, that is not to
conclude that it necessarily complied with its own contractuallayoff policies. Nor does it negate the possibility that had it so complied, Guz would have retained his

save salaries.

. Some un~ertainty curently exists regarding the way this rule apphes to an employer's motion for summary

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judgment in a discrimiation action. (Maj. opn., ante, at pp. 356-357.) Californa's traditional rule was that to prevail on summary judgment, a "defendant must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a
material issue of fact that requires the process of a triaL."
( Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107 (252 CaL. Rptr. 122, 762 P.2d 46). In 1992 and

150 (65 CaL. Rptr. 2d 112); Addy v. Bliss & Glennon
(1996) 44 Cal. App. 4th 205,216 (51 CaL. Rptr. 2d 642).

I believe the Cour of Appeal cases can generally be reconciled. The recent decisions recognize that Code of Civil Procedure section 437c, subdivision (0)(2), significantly (***393) changed California sumary judgment law. To prevail on summary judgment, the defendant no

1993, however, the Legislature amended Code of Civil
Procedure section 437c, the statute concernng summary judgment. (See generally Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 581-584 (37 CaL. Rptr. 2d

longer must conclusively negate the plaintiffs case.
Given the diffculty of proving a negative, such a test is often impossibly high. However, the statute also places an initial burden on the defendant in order to prevail on summary judgment. As explained in Scheiding, tle differences in the cases can largely be described as differing
degrees of caution rather than outright disagreement.

653). Today, as relevant, Code of Civil Procedure section 437c, subdivision (0)(2), provides that a defendant

has met its burden on summary judgment "of showing

that a cause of action has no merit if that part has shown that one or more elements of the cause of action. . . cannot be established, or that there is a complete defense to

(ScheMing, supra, 69 CaL. App. 4th at pp. 82-83.) That case quoted with approval (ibid.) most of the following
discussion in Hagen v. Hickenbottom (1995) 41 CaL.
App. 4th 168 (48 CaL. Rptr. 2d 197): "We cannot agree

that cause of action. Once the defendant. . . has met that burden, the burden shifts to the plaintiff. . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff. . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth tle specific facts showing that a trable issue of material fact exists as to that cause of action or a defense thereto."

with those who may be understood to suggest that a
moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove its

case. It is clear to us, from the requirement. . . that a
defendant have 'shown that one or more elements of the
cause of action. . . cannot be established' ( Code Civ.

Proc. , § 437c, former subd. (n)(2) (now subd. (0)(2)); . .

of these amendments in a discrimiation case. The
Cours of Appeal have, however, considered this question in detail, and not always consistently. (See, e.g., the exhaustive discussion in ScheMing v. Dinwiddie Construction Co. (1999) 69 CaL. App. 4th 64,69-83 (81 Cal.
Rptr. 2d 360) (ScheMing).) Some cours have held that to
prevail on summary judgment, tle defendant need

(*373) This cour has not yet considered the effect

.), that a defendant must make an affrmtive showing in support of his or her motion. Such a showing connotes something significantly more than simply 'pointig out to
the. . . cour' that 'there is an absence of evidence': before (*374) the burden of

producing even a prima facie

merely point to the plaintiffs lack of evidence establishing a prima facie case. ( Hersant v. Department of Social
Services (1997) 57 CaL. App. 4th 997, 1002 (67 CaL.

case should be shifted to the plaintiff in advance of trial, ~ defendant who cannot negate an element of the plainttffs case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie

case. But where such a showing can be made we consider it both fair to the defendant and consistent with

Rptr. 2d 483) ("The burden-shiftng system requires the employee first establish a prima facie case of age discrimination"); Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal. App. 4th 798, 806 (85 Cal. Rptr. 2d 459); Caldwell v. Paramount Unifed School Dist., supra, 41 CaL. App. 4th at p. 203 ("Thus, (**1126) the
burdens of proof for puroses of a defendant's motion for

effcient admnistration of justice that the plaintiff be called upon, on risk of summary judgment, to make a prim facie case." (Id. at p. 186.)
I thnk this discussion aptly summarizes the law. To prevail on summary judgment in a discrimination case, the defendant must show that the plaintiff both has not established and cannot reasonably expect to establish a prim facie case. A defendant can meet the former burden merely by showing tle absence of evidence of discrimination. But that is not enough. The defendant must also show, by direct or circumtantial evidence, that the plaintiff cannot reasonably expect to obtain a prima facie
case. This latter showing, however, is not impossibly

summary judgment are precisely the same as those man-

dated by McDonnell Douglas"). Others have required the defendant to prove the "plaintiffs inability to prove
its own case. . . ." ( Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal. App. 4th 952, 959 (65 CaL. Rptr. 2d 821), italics omitted.) Others have suggested that because the moving part must negate the ?laintiffs right to prevail on a particular issue, the burden
is reversed on summary judgment. ( Sada v. Robert F.

diffcult. If a plaintiff has had the full opportty to obtain discovery and to present all available evidence in

support of a discrimination claim, and stil has failed to

Kennedy Medical Center (1997) 56 CaL. App. 4th 138,

establish a prima facie case, the trial cour may reasona-

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bly infer that the plaintiff cannot do so. If the plaintiff
cannot present a prima facie case, a nonsuit at trial would be inevitable. ( Code Civ. Proc., § 581c; Caldwell v.
Paramount Unifed School Dist., supra, 41 Cal. App. 4th

employees other than Guz filled while Guz was on holding status, younger employees filled two, and an older employee filled only one. This fact is meaningless. Even
the sampling (see post), Guz does not tell us the average age of persons eligible or considered for these positions. If a majority of those
aside from the miuscule size of

at pp. 203-204.) In that case, the trial cour should grant
summary judgment and avoid a useless triaL.

II. THE LEGAL STANDARD APPLIED TO THIS
CASE
Bechtel has shown that Guz had a full opportty to

persons were younger than Guz, a majority of those given the positions would likely also be younger. Guz "did not even attempt to place his figures in a relevant
context so as to make them meanigfuL. . . . (P) . . . (H)e neglects vital informtion regarding the pool of applicants and whether, for example, qualified older employees were available or applied for those jobs. . . .

discover and present all available evidence, and that he nonetheless has not stated a prima facie case of age dis-

crimination. This showing meets Bechtel's burden of establishig that Guz cannot state a prim facie case, thus entitling it to sumary judgment on this cause of
action. Despite extensive discovery, Guz can point to no comments by anyone during his entire lengthy (**1127) history with Bechtel suggesting age played a role in employment decisions in general, or in his case in partcu-

(E)mployee statistics unaccompanied by evidence regarding qualified potential applicants from the relevant
labor market. . . lack() probative value." ( Simpson v.

Midland-Ross Corp. (6th Cir. 1987) 823 F.2d 937, 943.) Guz's related arguments regarding his qualifications relative to those retained does not aid him. "As cours are not
free to second-guess an employer's business judgment,
this asserton (that plaintiff

lar, no meaningful statistical evidence, no evidence even of a possible financial or otler motive for Bechtel to get rid of its older workers. He cites no evidence suggesting
that age was a significant factor in Bechtel's layoff decision. 2

was equally or more qualified

than the people retained) is inufficient to permt a finding of pretext." ( Branson v. Price River Coal Co. (10th Cir. 1988) 853 F.2d 768, 772.) "Thus, plaintiffs general
dispute concernng his job performnce, in the absence of any other evidence of age discrimiation, does not
provide a suffcient basis for a jur to infer that (the em-

2 Contrary to the implication of the concuring

and dissenting opinon (conc. & dis. opn. of Kennard, post, at p. 385, fn. 4), I do not suggest evidence of age discrimiation must be direct rather than circumtantiaL. My point is that Guz has presented no meaningful evidence whatsoever, direct or circumstantial, suggesting age discrimiation.
(***394) It is tre that Guz was a member of the

ployer) termnated plaintiff on the basis of his age." ( Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d
743, 747.)

The second circumtance Guz cites comes closest to presenting evidence that might suggest age discrimiation: Of tle six persons in his unit, Bechtel retained the

protected class, but that fact alone proves nothing. In a reduction in force, many qualified, productive workers, (*375) both within and outside a protected class, lose their positions. Older workers may be laid off just like
younger ones. The laws against age discrimination do not " 'require() that younger employees be fired so that employees in the protected age group can be hied.' " ( Earley v. Champion Intern. Corp. (1lth Cir. 1990) 907 F.2d
1077, 1083; see also Vaughan v. MetraHealth Compa-

youngest two. This fact also fails to arouse suspicion for several reasons.
First, a group of six is simply too small to be statistically significant. "For (the plaintiff) to show a prima facie case of disparate treatment based solely (*376) on
statistics he must show a ' "stark" pattern' of discrimination unexplainable on grounds other than age." ( Palmer

v. United States (9th Cir. 1986) 794 F.2d 534, 539; Rose
v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417,

nies, Inc. (4th Cir. 1998) 145 F.3d 197, 204 (age discrimination laws are not "something akin to a strict seniority protection system"); Jameson v. Arrow Co. (11th
Cir. 1996) 75 F.3d 1528, 1532-1533.) Accordingly, "the

1423.) In Mayor v. Educational Equality League (1974)

415 U.S. 605 (94 S. Ct. 1323, 39 L. Ed. 2d 630), the
United States Supreme Cour found of "no significance" statistics based on a group of 13, "(i)n large part. . . because the number of positions. . . was too small to provide a reliable sample." ( Id. at p. 611 (94 S. Ct. at p.
1329); see also id. at p. 612 (94 S. Ct. at p. 1329).)

decision to discharge a qualified, older employee is not
inherently suspicious. . . . In a (reduction in force), qualified employees are going to be discharged." ( Brockle-

hurst v. PPG Industries, Inc. (6th Cir. 1997) 123 F.3d
890, 896.)

(***395) A change of only one person "meant an 8% (**1128) change in racial composition." ( /d. at p. 611
(94 S. Ct. at p. 1329). Here, the numbers are even

Like the concuring and dissenting opinion, Guz relies largely on two circumstances to support the age discrimination claim. The first is that, of three positions that

smaller. A single change--retaining the 50 year old and
laying off the 34 year old--would not have affected

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Hechtel's actions towards Guz in the slightest but would
have made the statistics show action

person with someone substantially younger. Only one
person in the group in this case--the 34 year old--was

sons. Many cases have found no statistical significance

favoring older per-

with groups larger than six. (E.g., Vaughan v. Metra-

substantially younger than Guz.
Third, the members of the group of six had different qualifications and performed different duties. "(A) plain-

Health Companies, Inc., supra, 145 F.3d at p. 203 ("a
sample of seven employees. . . is too small for reliable

analysis"); Brocklehurst v. PPG Industries, Inc., supra,
123 F.3d at p. 897 (group of 14 is too small); Fallis v. Kerr-McGee Corp., supra, 944 F.2d at p. 746 (group of

tiffs statistical evidence must focus on elimiating nondiscriminatory explanations for the disparate treatment

nie "is too small to provide reliable statistical results");
Simpson v. Midland-Ross Corp., supra, 823 F.2d at p.

by showing disparate treatment between comparable individuals." ( Falls v. Kerr-McGee Corp., supra, 944 F.2d at p. 746.) "(T)here must be evidence that (those
over 40) had positions and performnce ratings that were comparable to (those under 40) who were retained." ( Id. at p. 747.) Here, the group was quite disparate. One, for
example, was a secretary, who had duties not remotely
similar to Guz's.

943 & fn. 7, and cases cited (reliance on a sample of 17
is "suspect"); Sengupta v. Morrison-Knudsen Co., Inc.

(9th Cir. 1986) 804 F.2d 1072, 1076 (group of 28 is too

small).

Second, Bechtel did not systematically replace older

persons with substantially younger ones. Of the six in Guz's group, all but one were in their 40's (or 50); one was 34. The replacement of a worker with another "substantially younger than the plaintiff' ( O'Connor v. Consolidated Coin Caterers Corp., supra, 517 U.S. at p. 313
(116 S. Ct. at p. 1310)) might look suspicious, but not

(***396) Fourh, any slight weight we may give to plaintiffs statistics is negated by the fact that Guz's own duties were largely assumed by someone older than he. (Maj. opn., ante, at p. 366.) This fact, even if not itself dispositive, eliminates any suspicious inference that may be drawn from Bechtel's retainng the two youngest of
Guz's group. "(T)he fact that (the employer) replaced

these actions. Hartley v. Wisconsin Bell, Inc. (7th Cir. 1997) 124 F.3d 887 considered the "QUESTION: how much older than a replacement does a plaintiff have to be in order to pass O'Connor's test?" ( /d. at p. 892.) "Whle
we suspect that the answer depends to some extent on the

(plaintiff) with ( an) even older (employee) contradicts (plaintiffs) claims of discriminatory animus." ( Brocklehurst (**1129) v. PPG Industries, Inc., supra, 123 F.3d at p. 897.)
Guz also argues that Bechtel did not follow its own
fair layoff procedures, and tlat ths circumstance sup-

circumstances in a case, we consider a ten-year difference in ages (between the plaintiff and her replacement)
to be presumptively 'substantial' under O'Connor. In

cases where the disparity is less, the plaintiff may stil
present a triable claim if she directs the cour to evidence that her employer considered her age to be significant. In

ports his discrimiation claim. The arguent is factually dubious but even if correct would fail to suggest age dis-

crimination. A mere failure to follow forml internal
policies does not support a discrimination claim. In
Vaughan, the employer had an "elaborate Downsizing
Policy. . . memorialized in a l44-page Downsizing

that instance, the issue of age disparity would be less relevant. . . . (P) . . . Ten years is a reasonable threshold
establishig a 'significant' and 'substantial' gap, which is

what O'Connor demands. Yet the line we draw is not so bright as to exclude cases where the gap is smaller but
evidence nevertheless reveals the employer's decision to

be motivated by the plaintiffs age." ( /d. at p. 893.)

(*377) This assessment seems reasonable. In a given case, the plaintiff might be able to show that an
age difference of less than 10 years was significant to the

ManuaL" ( Vaughan v. MetraHealth Companies, Inc., supra, 145 F.3d at p. 200.) ", . . Cooper, who made the decision to discharge (the plaintiff), admitted he was not familiar with the Downsizing Manual, (and) had never read it . . . ." (Ibid .) Thus, the "district cour noted, . . various differences between the Downsizing Manual and
Cooper's actual decision-making process." ( Id. at p.

employer. For example, if some important contractual right vested at the age of 50, then replacing a 49 year old

201.) (*378) But this showing was not suffcient to support the discrimiation claim. "The plaintiff must
have developed some evidence on which a juror could reasonably base a finding that discrimiation motivated the challenged employment action." (/d. at p. 202.) The employer's failure "to follow its own Manual. . . does not even hint that the real motive was age discrimiation. 'The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the
employer was motivated by ilegal discriminatory intent.'

with someone younger, even if less than 10 years
younger, might be replacing a person witl someone sub-

stantially younger. But no such evidence exists here. Absent any evidence that Bechtel considered the age differences of persons in their 40's to be significant, I would find them insignificant. Without more, choosing among various persons in their 40's gives no cause to suspect age discrimination. Specifically, replacing a 49 year old with a 41 year old is not, by itself, replacing a

Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.

1995). Federal cours cannot ensure that business decisions are always informed or even methodicaL." (Id. at p.

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203; see also Rose v. Wells Fargo & Co., supra, 902
F.2d at p. 1422; Moore v. Eli Lily & Co. (5th Cir. 1993) 990 F.2d 812,819,)

Guz. Shortly thereafter, SFRO-MI created three new positions, two of which it filled with workers younger
than Guz, The younger workers were between seven and 15 years younger tlan Guz. Even though Guz was wiling to take a grade cut and pay cut, Bechtel did not con-

Guz's inability to present any credible evidence to establish his age discrimiation claim supports the superior cour's grant of summary judgment in Bechtel's favor.
Brown, J., concured.

sider him for (** 1130) the new SFRO-MI positions,
and it discharged him.
Guz's lawsuit against Bechtel alleged various causes

of action, including one for age discrimination in viola-

DISSENT BY: KENNAR
DISSENT

moved for sumary judgment, asserting, as relevant
here, these reasons for the termnation: (1) It elimiated
BNI-MI, where Guz was employed, because of a "downtu in workload" and to consolidate costs; (2) Guz's

tion of Californa's Fair Employment and Housing Act (FEHA). ( Gov. Code, § 12941, subd. (a).) i Bechtel

KENNAR, J., Concuring and Dissenting.

Californa statutory law prohibits employers from
discriminating against workers over the age of 40. In ths case, an employee sued his employer after it eliminated
his job in the wake of a corporate reorganiation and

tasks were then assumed by existing workers at SFRO-

MI; and (3) the younger employees chosen to fill the SFRO-MI positions were better qualified for those particular positions than Guz.

then passed him over in favor of younger workers when otler positions became available. At the time of his discharge, the employee had worked for his employer 22
years, and he was 49 years old.

1 Furher undesignated statutory references are to the Governent Code.
Guz disputed these reasons as "pretextual." He pre-

The employee's various causes of action included

one for age discrimiation, on which the tral cour
granted summary judgment for the employer. The Cour of Appeal disagreed. Unlike the majority here, I would
affrm the judgment of the Cour of AppeaL. I agree,
however, with the majority's resolution of

the employee's

otler causes of action.

I

This matter comes to us after the trial cour granted
defendant employer's motion for summary judgment.

Under Californa law, a moving part is entitled to summary judgment only when no "triable issue of material
fact" remains for triaL. ( Code Civ. Proc., § 437c , subd.

sented evidence that (1) he was qualified for each of the positions filled at SFRO-MI; (2) in elimnating BNI-MI and termnating him, Bechtel failed to comply with its internal Reduction-in-Force Guidelines (which required that all affected employees be ranked by job skills and functions), thereby depriving him of a fair, objective, and consistent evaluation in comparison with others; and (3) Bechtel's asserted reasons for eliminating BNI-MI--cost savings and a reduction in workload--were demonstrably false because SFRO-MI had to add a total of five positions to cover the work transferred from the six-member BNI-MI unt.
Ruling that Guz had failed to show that Bechtel's
proffered reasons were a pretext for age discrimination,

(0)(1) & (2).) In reviewing an order grantig or denying summary judgment, "we examine the facts presented to the trial cour and determne their effect as a matter of
law." ( Parsons v. Crown Disposal Co. (1997) 15 Cal.
4th 456,464 (63 Cal. Rptr. 2d 291,936 P.2d 70).)

the trial cour granted summary judgment. The Cour of Appeal reversed, concluding that material issues of fact on Guz's FEHA claim were in dispute and needed to be
resolved by a full triaL.

worked for Bechtel National, Inc. (BNI), a wholly owned

(*379) (***397) In 1993, plaintiff John Guz

II
As relevant here, the FEHA prohibits an employer from discharging "any individual over age 40 on the

subsidiary of Bechtel Corporation (Bechtel). Guz was one of six employees in BNl's management information
unit (BNI-MI); he was a financial reports manager, making $ 71,280 a year. That year, during a phase of corporate reorganiation, Bechtel eliminated BNI-MI and

ground of age." (§ 12941, subd. (a), italics (*380)
added.) "(T)he practice of age discrimination, like other
form of invidious discrimination, 'foments domestic

transferred its fuctions to Bechtel's San Francisco Regional Offce Management Information Group (SFROMI). Reassigned to SFRO-MI as part of this transfer were BNI-Ml's two youngest members, both of whom
held lower grade positions and earned lower salaries than

strife and unrest' in the workplace ( Gov. Code, § 12920),

making for a more stressful and ultimately less productive work environment." ( Stevenson v. Superior Court
(1997) 16 Cal. 4th 880, 895 (66 Cal. Rptr. 2d 888, 941

P.2d 1157). Thus, the FEHA's express policy condenn-

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ing discrimination against older workers benefits the
public at large. (Ibid.)

Corp. (3d Cir. 1994) 32 F.3d 768, 777; Freeman v.
Package Machinery Co. (1st Cir. 1988) 865 F.2d 1331, 1335, fn. 2. (replacement by a younger person not an
element of prima facie age discrimination case).

Here, plaintiffs case is based on a theory of "dispa-

rate treatment," meaning that because of his age (49
years at the time of discharge), Bechtel treated him less favorably than it did younger workers. (See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718,1730 (35 Cal. Rptr. 2d 181); Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421.) "The ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the

Once the discharged employee has established a
prima facie case of discrimiation, there is a presumption

of unlawful discrimination by the employer. (Hicks ,
supra, 509 U.S. 502, 506 (113 S, Ct. 2742, 2746-2747);

Burdine, supra, 450 U.S. at p. 254 (101 S. Ct. at p.
1094). As the high cour has explained: "A prima facie

plaintiff was the victim of intentional discrimiation." ( Reeves v. Sanderson (2000) 530 U.S, 133, 153 (***398) (120 S. Ct. 2097, 2111, 147 L. Ed. 105) (Reeves).)
In disparate treatment cases, Californa cours apply the test that the United States Supreme Cour articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792,802-803 (93 S. Ct. 1817, 1824-1825,36 L. Ed. 2d

case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if
otherwise unexplained, are more likely than not based on the consideration of impermssible factors. (Citation.)

And we are wiling to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any
underlying reasons, especially in a business settng.
Thus, when all

668) (McDonnell Douglas) to assess such cases when
brought under federal

legitimate reasons for rejecting an appli-

law. ( Martin v. Lockheed Missiles & Space Co., supra, 29 CaL. App. 4th at p. 1730.) This test governs the allocation of the burden of production

cant have been eliminated as possible reasons for the employer's actions, it is more likely than not tle employer, whom we generally assume acts with some reason, based his decision on an impermssible consideration such as race (or age)." ( Furnco Construction Corp.

and the order for the presentation of proof at the tral of a
discrimination case. (Reeves, supra, 530 U.S. at pp. 142-

143 (120 S. Ct. at p. 2106); St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 506 (113 S. Ct. 2742, 27462747, 125 L. Ed. 2d 407) (Hicks).)

v. Waters (1978) 438 U.S. 567, 577 (98 S. Ct. 2943,
2949-2950, 57 L. Ed. 2d 957), italics omitted.)

Under the McDonnell Douglas test, a plaintiff employee claiming discrimination has the intial burden to establish "by a preponderance of the evidence, a 'prima facie' case of. . . discrimination." (Hicks, supra, 509 U.S.
at p. 506 (113 S. Ct. at p. 2747); Texas Dept. of Commu-

If the trier of fact ffnds the discharged employee's prim facie case persuasive, and the employer remains silent in the face of the just-described presumption of

unawful discrimination, the trial cour "must enter
judgment for the plaintiff because no issue of fact remains in the case." (Burdine, supra, 450 U.S. at p. 254
(101 S. Ct. at p. 1094).) The employer is, of course, free

nity Affairs v. Burdine (1981) 450 U.S. 248, 252-253
(101 S. Ct. 1089, 1093-1094, 67 L. Ed. 2d 207) (Bur-

dine).) When, as here, the alleged age discrimination

to rebut the presumption by presentig evidence of a legitimate, nondiscrimiatory (***399) reason for the
termnation. (Hicks, supra, 509 U.S. at p. 507 (113 S. Ct. at p. 2747).

resulting in the employee's discharge occurs durng an employer's restrctuing of its work force, (** 1131) the
employee can make a prima facie case based on evidence
that the employee (1) was age 40 or older; (2) satisfied the employer's legitimate expectations of job perform-

An employer's desire to reduce expenses by eliminating some employee positions is not itself a legitimate,
nondiscriminatory reason for the discharge of older
workers. Chief Judge Richard Posner of

ance; and (3) the employer treated younger workers more

favorably (for instance, by offering them replacement positions denied to the discharged employee). (See Collier v. Budd Co. (7th Cir. 1995) 66 F.3d 886, 889-890; Greene v. Safeway Stores, Inc. (10th Cir. 1996) 98 F.3d
554,560; see also Jameson v. Arrow Co. (11th (*381)

the federal Cour of Appeals for the Seventh Circuit explained this in a case alleging disability discrimination during corporate

Cir. 1996) 75 F.3d 1528, 1533.) With respect to the third factor (more favorable treatment of younger workers), a number of federal appellate cours have pointed out that a discharged employee's failure to prove replacement by a younger worker does not necessarily defeat a claim of age discrimination if the termnation is the result of a general reduction in work force. (Rose v. Wells Fargo &
Co., supra, 902 F.2d at p. 1421; Armbruster v. Unisys

downsizing. "Even if the employer has a compelling reason wholly umelated to the disabilities of any of its employees to reduce the size of its work force, this does not entitle it to use the (*382) occasion as a convenient opportty to get rid of its disabled workers. (Citations.)

This point is most easily seen by thnkng of a (reduction in work force) as a kind of hiring: the employer has decided to reduce its work force from, say, 100 to 80 employees; this means it has 80 slots to fill and in filling
them must choose among 100 'applicants.' The law for-

bids the employer to disqualify the disabled applicants

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on the basis of their disability." ( Matthews v. Commonwealth Edison Co. (7th Cir. 1997) 128 F.3d 1194, 1195.) This reasoning applies with equal force to a case alleging age discrimination.

40 years when he was fired. The employees who later filled the plaintiffs former position were all in their 30's.

At trial, the employer disputed that age was the motivat-

ing factor for tle discharge, asserting that it termnated
the plaintiff (*383) because he had not kept accurate

Nor is it suffcient for the employer to show that the discharged older workers earned higher salaries than the younger workers who were retained. Although a Cour of Appeal reached a contrary conclusion in Marks v. Loral
Corp. (1997) 57 CaL. App. 4th 30 (68 Cal. Rptr. 2d 1), and this cour denied review (Justice Mosk and I voting

records of employee attendance, The jur awarded dam-

ages to the plaintiff, but the federal Cour of Appeals
reversed for insuffciency of evidence. The United States

Supreme Cour disagreed. Describing the issue as "the

to grant), the Legislatue has since expressly abrogated

that decision by declaring "that (**1132) the use of
salary as tle basis for differentiating between employees
when termnating employment may be found to consti-

kid and amount of evidence necessary to sustain a jury's (***400) verdict that an employer unawfully discriminated on the basis of age" (Reeves, supra, 530 U.S. at p. 137 (120 S. Ct. at p. 2103)), the high cour held that the circuit cour had "misconceived the evidentiary burden
borne by plaintiffs who attempt to prove intentiõnal dis-

tute age discrimiation if use of that criterion adversely impacts older workers as a group, and. . . that the disparate impact theory of proof may be used in claims of age
discrimination." (§ 12941., enacted by Stats. 1999, ch.

crimination though indirect evidence" ( id. at p. 146
(120 S. Ct. at p. 2108)). That burden could be satisfied

by evidence of the "plaintiffs prim facie case, combined
with suffcient evidence to find that the employer's as-

222, § 2.) 2
2 I do not agree with Justice Chin's concuring

opinon that Marks v. Loral Corp., supra, 57 Cal. App. 4th 30, is "utterly irelevant" to the issues
here. (Conc. opn. of Chin, J., ante, at p. 372, fn.

serted justification is false." ( Id. at p. 148 (120 S. Ct. at p. 2109). From such evidence, a trier of fact could reasonably conclude "that the employer unlawfully discriminated." (Ibid.)

1.) The younger workers that Bechtel chose to retain earned lower salaries than Guz, and the Legislatue's recent clarification of the law on this point serves to explain why Bechtel has not and

II
Consideration of the evidence here in light of the legal framework discussed, ante, leads to these conclusions:
Guz's evidence presented in opposition to Bechtel's

could not lawflly rely on the resulting salary
savings to justify its decision, as other employers in the past have done.

Justice Chi's concuring opinon also complains that this opinon's discussion of the ilegality of age discrimination "is irrelevant to tle majority's holding" because "(t)he majority does not suggest that age discrimination is lawful." (Conc.
opn. of Chin, J., ante, at p. 372, fn. 1.) Surely the

summary judgment motion was suffcient to establish a prim facie case of age discrimination under the McDonnell Douglas test: (1) He was over 40 years of age when
termnated; (2) his job performance exceeded Bechtel's

ilegality of age discrimiation cannot be entiely irrelevant in an age discrimiation case. The natue and purose of the prohibition against age discrimination in employment should be kept in

legitimate expectations (he was promoted six times, and was given 17 merit raises, and he received a Silver Performnce Plus Award for saving the company $ 1.7 million; his 1991-1992 performnce review described him as a "strong performer in his group"; and in his 22 years
at Bechtel, he was never told his skils were deficient); and (3) Bechtel treated younger workers more favorably

mind when assessing the suffciency of the evidence and the allocation of the proof

than older workers by transferring, from the disbanded BNI-MI unit (where Guz was employed) to SFRO-MI
and selecting for two of the thee new SFRO-MI positions, workers between seven and 15 years younger than
Guz; and by retainng the two youngest of the six work-

burdens on a

summary judgment motion in an age discrimiation case.

ers at BNI-MI, while termatig the two oldest. This
evidence, if presented at trial and accepted by the fact
finder would have given rise to a presumption of age

When, under the McDonnell Douglas burden-

allocation rules, the employer responding to a discharged employee's prima facie case of age discrimination offers legitimate, nondiscriminatory reasons for the discharge, what countervailing evidence must the employee present to sustain a judgment after trial? This was the question

discrimination that, if umebutted by (**1133) Bechtel, would require entr of judgment for plaintiff. (Hicks,
supra, 509 U.S. at p. 507 (113 S. Ct. at p. 2747). 3

before the United States Supreme Cour in Reeves, supra, 530 U.S. 133 (120 S. Ct. 2097). There, the 57-yearold plaintiff had worked for a plumbing manufactuer for

3 Because I conclude that plaintiffs evidence here was sufficient for a prima facie case of age
discrimination, I express no view on whether a .

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plaintiff suing under the FEHA can successfully avoid summary judgment without such evidence.
(See maj. opn., ante, at p. 357 (also declining to
decide this issue).

crimination, but only with whether Guz's evidence raises
"a triable issue of material fact" to be resolved at triaL. ( Code Civ. Proc" § 437c, subd. (0)(2).) Because, as I have
explained, Guz's evidence was suffcient under Reeves
not only for a jur to reject Bechtel's proffered reasons

Bechtel did, however, present rebutting evidence in support of its motion for summary judgment. According

for the discharge but also for an appellate cour to uphold
an age discrimiation verdict, that evidence squarely presented "(t)he ultimate question" in any disparate

to Bechtel, a "downtu in workload" and (*384) a desire to save costs prompted its elimination of

the BNI-MI

unt, where Guz had worked. And it chose the younger workers for the SFRO-MI positions because they were
the most qualified for those positions.

Notwthstanding Bechtel's rebuttal evidence, Guz could stil prevail at trial under the high cour's decision in Reeves by presenting evidence of a prima facie case of age discrimiation plus sufficient additional evidence from which a reasonable fact finder could reject "the
employer's asserted justification (as) false." (Reeves,

treatment case, namely, "whether the plaintiff was the victim of intentional discrimiation." (Reeves, supra, 530 U.S. at (*385) p. 153 (120 S. Ct. at p. 2111). That issue was in ths case a material issue of fact in dispute. Therefore, the trial cour erred when, in granting summary judgment for Bechtel, it precluded Guz from having the
merits of ths material issue of fact resolved at a triaL.

The majority does not at all acknowledge that Guz's evidence was suffcient to establish a prima facie case of

supra, 530 U.S, at p. 148 (120 S. Ct. at p. 2109). As
Justice Ginsburg's concurence in Reeves explained, "two

age discrimination, 4 (**1134) Instead, it looks to a
statement by the high cour in Reeves that an employer is

categories" of evidence are needed to support a jur's verdict in a disparate treatment case based on circumstantial evidence of unlawful discrimination: "(F)irst,
evidence establishig a 'prima facie case,' . . ,; and sec-

entitled to judgment as a matter of law when" 'no rational fact finder could conclude that the action was discriminatory.' " (Maj. opn., ante, at p. 362, italics omitted.) According to the majority, that is the case here. I
disagree.

ond, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its
actions was false. "(Id. at p. 154 (120 S. Ct. at p. 2112)
(conc. opn. of

4 Justice Chin's concuring opinon asserts that

Ginsburg, J..) Here, in opposing Bechtel's

motion for summary judgment, Guz presented evidence in both categories. As discussed earlier, he offered evidence comprising a prima facie case of age discrimiation. In addition to the evidence of the prima facie case, he presented ths evidence: (1) He was qualified for the SFRO-MI positions filled by other workers; (2) Bechtel

"Guz cannot state a prima facie case." (Conc. opn. of Chin, J., ante, at p, 374.) It ffnds some
significance in Guz's failure to point to "comments by anyone" at Bechtel suggesting that his
age played a role in Bechtel's employment deci-

never considered him for any of the new positions at
SFRO-MI; (3) (***401) Bechtel did not comply with its own downsizing policy of rankng employees based on skills and functions; and (4) Bechtel's stated reasons for eliminating BNI-MI--cost reduction and downtu in
workload--were demonstrably false, as noted on page

sions. (Ibid.) But such evidence of discriminatory intent is unnecessary either to allege or to prove age discrimiation based on disparate treatment, plaintiffs theory in this case. Rather, as the high
cour in Reeves has said, an employee claiming
disparate treatment can rely entiely on circum-

stantial evidence, which may be probative of intentional discrimination and "quite persuasive."

379, ante. From this additional evidence, a trier of fact could reasonably reject as false Bechtel's asserted business justifications for Guz's discharge. As Justice Ginsburg's concurence in Reeves noted, "evidence suggesting that a defendant accused of ilegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be
masking its actual, ilegal motivation." (Ibid.) Thus, under the high cour's standard in Reeves, Guz's evidence

(Reeves, supra, 530 U.S. at pp. 146-147 (120 S.

Ct. at p. 2108). That, as I have explained, is the
case here.

In Reeves, the high cour explained that notwithstanding evidence comprising a prima facie case of discrimination and suffcient additional evidence for a jur

to reject an employer's proffered explanation, the em-

here would be suffcient for an appellate cour to sustain
"a jur's verdict that an employer unlawfully discrimi-

ployer would be entitled to a judgment as a matter of law if, for instance, "the record conclusively revealed some
other, nondiscriminatory reason for the employer's deci-

nated on the basis of age." (/d. at p. 137 (120 S. Ct. at p.

sion, or if the plaintiff created only a weak issue of fact
as to whether the employer's reason was untre and there

2103).)

Here, however, we are concerned not with the suffi-

was abundant and uncontroverted independent evidence that no discrimiation had occured." (Reeves, supra, 530
U.S. at p. 148 (120 S. Ct. at p. 2109), italics added.) But

ciency of evidence to sustain a jur verdict of age dis-

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24 Cal. 4th 317, *; 8 P.3d 1089, **;

100 Cal. Rptr. 2d 352, ***; 2000 Cal. LEXIS 7498
here the record does not conclusively reveal Bechtel's
tre reason for Guz's discharge, and there is insuffcient

independent evidence that the reason was other than his
age. Therefore, contrary to the majority's asserton, ths

are expanded or created, many employees' jobs are placed at risk in a corporate equivalent of the old game of musical chairs. Because the corporate employer controls the seating assignments, corporate offcers who

case falls outside the Reeves exception. (***402)
Conclusion
In a recent decision, I explained the reason for

wish to eliminate older workers may use the complexities of the restrctuing process to conceal their ilegal

discriminatory intent. Here, Guz has alleged that he was
the victim of exactly this sort of age discrimination by

FEHA's prohibition against age discrimiation in employment: "Aging is a highly complex and variable process. Chronological age alone is not a reliable measure of any individual's vitality or ability, and many individuals
remain robust and productive well past the norml re-

his employer, Bechtel, contrary to the public policy and the law of this state.
Guz's lawsuit against Bechtel is now at the summary judgment stage, where the question to be decided is
whether the evidence submitted by Guz and Bechtel

tirement age. Nevertheless, some employers have dis-

criminated against highly qualified older workers solely

because of their age, either by not hig them or by replacing them with younger persons." ( Stevenson v. Superior Court, supra, 16 Cal. 4th at p, 909.) (*386)

Seeking ever greater effciency to meet the demands of open market competition, many corporations engage
in frequent internal reorganiation. As some departents

or working groups are reduced or eliminated and others

shows there is an issue of material fact in dispute that needs to be resolved by a full trial in open cour. Unlike the majority, I conclude that the evidence does show a triable issue of fact, and that plaintiff deserves a trial on the merits to determne whether he lost his job for legitimate business reasons or because of ilegal age discrimination. Because the majority denies plaintiff the opportty to prove his case at tral, I dissent.

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EXHIBIT 18

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Page I

LEXSEE 14 CAL APP 4TH 70
DAVID B. HARS, Plaintiff

and Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant and Respondent.
No. F015046

COURT OF APPEAL