Statistical Evidence In Discrimination Cases Need Not Account For Employer’s Non-discriminatory Reason For Discharge

The United States Court of Appeals for the Ninth Circuit recently held that former news reporters could state a prima facie case for age discrimination through the use of statistical evidence, even if that evidence did not account for their former employer’s legitimate nondiscriminatory reason for discharging the reporters.  (Schechner v. KPIX-TV, (— F.3d —-, C.A.9 (Cal.), May 29, 2012).


William Schechner and John Lobertini worked as television news reporters at KPIX-TV, which is a San Francisco affiliate of CBS Broadcasting, Inc.  In March 2008, CBS told each of its affiliates to reduce annual budgets by ten percent but left the decision on how to implement the cuts to senior management at the local stations.  Ronald Longinotti, the President and General Manager of KPIX, and Dan Rosenheim, the Vice-President, were responsible for implementing the required cuts and for the hiring and firing decisions.

KPIX signed a new two-year contract with Schechner in 2004, when he was 62 years old, and new one year contracts in 2007 and 2008, when he was 65 and 66 years old.  KPIX signed Lobertini to a new two year contract in 2006, when he was 46 years old.  However, as part of the effort to reduce the budget, Longinotti and Rosenheim decide to lay off Schechner, Lobertini and three other on-air employees, who were 57 years old, 56 years old, and 51 years old. 

KPIX claims it had legitimate non-discriminatory reasons for deciding who would be affected by the layoff.  News anchors were not subject to the layoff because they were the “face” of KPIX.   Longinotti and Rosenheim decided to lay off general assignment reporters based on the next date of contract expiration but not specialty reporters who focused on certain beats.

Schechner’s and Lobertini’s expert statistician compared the on-air talent that KPIX laid off to the entire on-air talent pool of the news department.  The expert concluded that “those individuals laid off, as a group, are older than the group of those not laid off, and the disparity between the two groups is statistically significant.”  The age of the on-air talent correlated closely with the employees selected for layoff.  The expert did not account for the fact that anchors were not part of the layoff or that KPIX took into account the dates of expiration of contracts of the employees.

The district court granted judgment for KPIX finding that Schechner and Lobertini failed to make out a prima facie case for age discrimination.  The court concluded that if “a plaintiff’s statistical analysis fails to preemptively account for a defendant’s non-discriminatory reason for discharge, the statistical results cannot show a stark pattern of discrimination.”


The court of appeals affirmed the decision but found the district court erred when it found the statistical evidence was insufficient.  The appellate court held that an employee can establish a prima facie case of disparate-treatment age discrimination using statistical evidence even if that evidence does not account for the employer’s legitimate non-discriminatory reason for discharge.  The court noted, “[A] plaintiff who relies on statistical evidence to establish a prima facie case of disparate treatment bears a relatively low burden of proof.”

Schechner and Lobertini alleged discrimination in violation of the California Fair Employment and Housing Act (“FEHA”).  California follows the burden-shifting framework set out in federal case law when interpreting the FEHA.  Under this framework, an employee must first establish a prima facie case of disparate impact age discrimination by (1) showing that he or she was at least 40 years of age, was performing his or her job satisfactorily, was discharged, and the employer replaced the employee with a substantially younger employee with inferior or equal qualifications, or (2) that he or she was “discharged under circumstances otherwise ‘giving rise to an inference of discrimination.’” 

If an employee establishes a prima facie case, “the burden shifts to the employer to articulate a legitimate non-discriminatory reason for its adverse employment action.”  If the employer offers such a reason “the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.”  The district court found that if an employee primarily relies on statistical evidence to establish a prima facie case, the three-step analysis collapses into a single step.  The lower court reasoned that where statistical evidence does not preemptively take into account the nondiscriminatory reason for discharge, that evidence “cannot show a stark pattern of discrimination unexplainable on grounds other than age.” 

The court of appeals disagreed finding that an employee who presents evidence of a pattern of age discrimination establishes a prima facie case that satisfies step one of the burden shifting analysis.  The court held “that statistical evidence does not necessarily fail to establish a prima facie case because it does not address the employer’s proffered non-discriminatory reason for discharge.”  The court cautioned it was not holding “that any statistical evidence of disparate treatment, regardless of its strength, will be sufficient to establish a prima facie case.”  Schechner and Lobertini submitted sufficient evidence to show stark age disparities between the on air-talent who were laid off and those who were retained and therefore established a prima facie case. 

However, the court determined KPIX was entitled to summary judgment because Schechner’s and Lobertini’s evidence did not support a finding of pretext because KPIX was entitled to a “same-actor inference.”  If the same person “is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.”  Here, Longinotti and Rosenheim signed new contracts for both Schechner and Lobertini not long before they were laid off and when both employees were over forty years old.  Because of the same-actor inference, Schechner and Lobertini failed to show that KPIX’s proffered reason for discharge was mere pretext for discrimination. 


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