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Heiat v. Eastern Montana College3/4/1996
ion. This is generally established with reference to the prima facie case model for disparate treatment cases adopted in McDonnell Douglas. Upon proof of a prima facie case, a presumption arises that the employer unlawfully discriminated against the employee. If a prima facie case is established, the employer must produce evidence that its action was based on a legitimate, nondiscriminatory reason, or, under the Equal Pay Act, based on "factors other than sex." If the employer can articulate a legitimate, nondiscriminatory reason, the presumption of discrimination drops out of the case and the burden shifts back to the plaintiff who must then establish that the reason is pretextual. Kenyon, 835 P.2d at 745-46; Taliaferro, 764 P.2d at 863; European Health Spa , 687 P.2d at 1031; Martinez, 626 P.2d at 246; Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94.
The District Court found that Nafisseh established a prima facie case of discrimination by showing that she was a woman and a male colleague (Abbas) with the same credentials, who performed substantially the same work, received a higher salary. The District Court went on to find that EMC had established a legitimate, nondiscriminatory reason for the salary differential between Nafisseh and Abbas. Finally, the District Court found that Nafisseh failed to establish that the legitimate, nondiscriminatory reason offered by EMC was pretextual. Since Nafisseh could not produce evidence to establish that EMC's reasons were pretextual, there was no genuine issue of material fact. The District Court concluded that a reasonable jury could not return a verdict in favor of Nafisseh.
As noted, the majority has determined that the McDonnell Douglas test is not appropriate for analyzing discrimination cases in the summary judgment context and developed a new standard. The majority abandons the first element of the McDonnell Douglas test which required the plaintiff to establish a prima facie case, which, once established, created a presumption of discrimination. The majority states that for summary judgment purposes, the court will assume that the plaintiff has alleged a prima facie case of discrimination. The majority retains the second element of the McDonnell Douglas test by then requiring the employer to come forward with a legitimate, nondiscriminatory reason for the action. If the employer comes forward with a legitimate, nondiscriminatory reason, only then does the plaintiff need to establish a prima facie case of discrimination. If the plaintiff produces evidence which raises an inference that the employer's proffered reason is pretextual, the plaintiff's burden is met and summary judgment must be denied.
This new standard requires employers to rebut discrimination allegations not yet proven, which places the cart before the proverbial horse. The Ninth Circuit has discussed and applied the McDonnell Douglas standard in the summary judgment context in Foster.
On a motion for summary judgment in discrimination cases, the McDonnell Douglas order of proof and shifting of burdens must be viewed in light of the traditional test for granting summary judgment. See Steckl [v. Motorla, Inc.], 703 F.2d
at 393, [(9th Cir. 1983)]. That test is whether the moving party has demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Alaska v. United States, 754 F.2d 851, 853 (9th Cir. 1985). Although courts are generally cautious about granting summary judgment when motivation and intent are at issue, as in Title VII and ADEA cases, such relief may nonetheless be appropriate. Steckl, 703 F.2d at 393. One purpose of the allocation of burden
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