The case in a nutshell....

In Hersante v. Department of Social Services, the California Court of Appeal affirmed summary judgment in favor of an employer, holding that the employee failed to present sufficient evidence of age discrimination to permit him to proceed to trial. This case is significant because the court places an onerous burden on the employee to offer "substantial evidence" that an employer's stated non-discriminatory reason for adverse employment action (a demotion in this case) was merely a pretext for discrimination. Merely establishing a prima facie case of discrimination is not enough under the court's decision.

In May 1995, Hersante filed a complaint against the California Department of Social Services and his immediate supervisor, alleging he was demoted on the basis of his age in violation of the California Fair Employment and Housing Act (FEHA). Hersante was 52 years old and had always received good work evaluations in the past. He claimed he was demoted in June 1994 from manager of the Department's Regional Child Day Care Licensing and Monitoring Office because of his age.

The Department argued Hersante was demoted not because of his age, but rather because of unsatisfactory job performance. The Department presented evidence that Hersante was demoted for instituting policies that corrupted the Department's computer database and that Hersante failed to follow his supervisors' instructions in conducting a promotional interview.

In opposition, Hersante alleged that he followed applicable procedures, had done nothing that would corrupt departmental databases, and had properly conducted promotional interviews. Hersante further contended the Department's stated reason for his demotion was false and pretextual, and that the true reason for his demotion was the bias of his supervisor against older employees. The trial court granted Department's motion, ruling that Hersante failed to present sufficient evidence that his demotion was based on age discrimination.

The appellate court affirmed. The "burden shifting" system governing discrimination claims requires that the employee first establish a prima facie case of age discrimination by showing:

Once the employee makes this showing, the burden of proof shifts to the employer. The employer must offer evidence justifying the adverse action on a basis other than age.

If the employer presents evidence that the adverse action was based on a legitimate, non-discriminatory motive, California courts are split over whether the burden then shifts back to the employee to offer further evidence that the reason for the adverse action was in fact age discrimination. The Hersante court acknowledged that some California decisions appear to suggest an employee's prima facie case of discrimination is alone sufficient to avoid summary judgment and to compel the case to go to trial where the facts can be determined. However, the Hersante court adopted the "predominant view" requiring an employee to produce "substantial responsive evidence" that the employer's showing was untrue or pretextual to avert summary judgment.

Applying this standard, the court held that Hersante failed to present substantial evidence of intentional age discrimination. Although Hersante presented evidence which raised triable issues concerning whether the Department's actions were reasonable and well considered, such evidence did not constitute "substantial responsive evidence" that the Department's stated basis for demoting him was a pretext for age discrimination. To meet this standard, Hersante was required to show the Department's stated non-discriminatory reasons for his demotion were "implausible, inconsistent or baseless." Hersante's failure to make such a showing entitled the Department to summary judgment (dismissal without trial).