Employee’s introduction of evidence of discriminatory remarks by an upper-level supervisor should have enabled him to survive summary judgment on his claim for discriminatory termination due to his sexual orientation, even though employer also introduced evidence of a non-pretextual non-discriminatory motive as well; mixed motives do not absolve the employer. The trial court erred in granting an employer summary judgment on plaintiff’s claim for discriminatory termination due to the fact he was gay. Though the employer offered a non-pretextual non-discriminatory reason for plaintiff’s termination, plaintiff produced evidence—particularly discriminatory remarks by an upper-level supervisor who might have influenced the termination decision—sufficient to raise a triable issue of fact as to whether discrimination at least was a substantial factor in the termination decision, even if it was not a but-for cause of the termination. In mixed motive cases, an employer is not absolved of liability by showing it would have fired the employee anyway. Also, the same-actor inference (the inference that the same person who hired or promoted the plaintiff would not have discriminated against him in firing him) is just an inference, and not a particularly strong one at that.
California Court of Appeal, Second District, Division 7 (Perluss, P.J.); June 21, 2017; 2017 WL 2665191