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French v. Hawaii Pizza Hut9/30/2004
ed its initial burden, and the motion for summary judgment should not have been granted in this regard.
VII.
As recounted previously, Appellant brought a claim of compensation discrimination based on age. The court granted Pizza Hut's motion for summary judgment as to age discrimination on the ground that Appellant failed to establish a prima facie showing of a violation of HRS § 378-2. In the case of age discrimination, we have adopted the analysis governing the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. See Schefke v. Reliable Collection Agency, Ltd., 96 Hawaii 408, 425, 32 P.3d 52, 60 (2001) ("This court has adopted the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, [411 U.S. 792, 802-03 (1973),] in other types of HRS § 378-2 discrimination cases."); Shoppe, 94 Hawaii at 377, 14 P.3d at 1058 (applying the McDonnell Douglas analysis to an age discrimination claim under HRS § 378-2). Appellant alleged two theories of age discrimination -- pattern or practice discrimination and disparate treatment.
A.
"Under the pattern-or-practice paradigm, a plaintiff must prove, by circumstantial or direct evidence, that an employer's past actions evidence a pattern of illegal discrimination against a protected class." Shoppe, 94 Hawaii at 377 n.2, 14 P.3d at 1058 n.2. A plaintiff who raises a pattern or practice claim has the initial burden of "demonstrating that unlawful discrimination has been the regular policy of the employer, i.e., that 'discrimination was the company's standard operating procedure -- the regular rather than the unusual practice.'" Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir. 1985) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)). The focus of this inquiry is on a pattern of discriminatory decision making, not on individual employment decisions. Id. Once a plaintiff establishes a prima facie case in a pattern or practice theory, the burden shifts to the employer to defeat the showing by demonstrating that the plaintiff's proof is inaccurate or insignificant, or by providing a non-discriminatory explanation for the apparently discriminatory result. Id.
To support her pattern or practice claim, Appellant apparently relies on circumstantial evidence of discrimination. She introduced evidence of fifteen people who were hired as managers in 1994 and 1995. Appellant turned 40 years old on December 3, 1995. Of the fifteen managers, seven were paid more than Appellant (five males and two females). Both females who were paid more than Appellant were under the age of 40 in 1995. Of the five males who were paid more than Appellant, three were over the age of 40 in 1995. Two employees were paid the same as Appellant, a male age 43 and a female age 37. Among the remaining six managers who were paid less than Appellant, five were females, six were males, and five were 30 years old or younger. Based on these numbers, Appellant claims that a disparate number of managers under the age of 40 were paid more than her.
Pizza Hut contends that Appellant's statistics fail to account for significant factors such as years of experience or Pizza Hut's fast track program. As Pizza Hut argues, Appellant's statistics actually reveal that younger employees were paid less in some cases than older employees. In particular, the evidence shows that of the ten managers who were younger than Appellant, five were paid less. Depositions of Pizza Hut representatives indicated that compensation of newly hired managers was based on years of experience. Indeed, the statistics show a relatively even distribution of salaries among the managers according to age and several instan
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