California Jury Instruction CACI 2512 Limitation on Remedies—Same Decision

New December 2013; Revised June 2015, June 2016

Nakase Wade | California Business Lawyers & Corporate Lawyers

Give this instruction along with CACI No. 2507, “Substantial Motivating Reason” Explained, if the employee has presented sufficient evidence for the jury to find that the employer took adverse action against him or her for a prohibited reason, but the employer has presented sufficient evidence for the jury to find that it had a legitimate reason for the action. In such a “mixed-motive” case, the employer is relieved from an award of damages, but may still be liable for attorney fees and costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)

Mixed-motive must be distinguished from pretext though both require evaluation of the same evidence, i.e., the employer’s purported legitimate reason for the adverse action. In a pretext case, the only actual motive is the discriminatory one and the purported legitimate reasons are fabricated in order to disguise the true motive. (See City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the employee proves discrimination or retaliation and also pretext, the employer is liable for all potential remedies including damages. But if the employee proves discrimination or retaliation but fails to prove pretext, then a mixed-motive case is presented. To avoid an award of damages, the employer then has the burden of proving that it would have made the same decision anyway solely for the legitimate reason, even though it may have also discriminated or retaliated.

•“[U]nder the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)

•“Because employment discrimination litigation does not resemble the kind of cases in which we have applied the clear and convincing standard, we hold that preponderance of the evidence is the standard of proof applicable to an employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)

•“[W]hen we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original italics.)

•“In light of today’s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56 Cal.4th at p. 241.)

•“We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)

•“[A] plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)

•“In some cases there is no single reason for an employer’s adverse action, and a discriminatory motive may have influenced otherwise legitimate reasons for the employment decision. In Harris v. City of Santa Monica (Harris) the California Supreme Court recognized the traditional McDonnell Douglas burden-shifting test was intended for use in cases presenting a single motive for the adverse action, that is, in ‘cases that do not involve mixed motives.’ As the Court explained, this ‘framework … presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate. By hinging liability on whether the employer’s proffered reason for taking the action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret out the “true” reason for the employer’s action. In a mixed-motives case, however, there is no single “true” reason for the employer’s action.’ ” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1182 [220 Cal.Rptr.3d 42], internal citations omitted.)

•“Following the California Supreme Court’s decision in Harris, … the Judicial Council added CACI No. 2512, to be given when the employer presents evidence of a legitimate reason for the adverse employment action, informing the jurors that even if they find that discrimination was a substantial motivating reason for the adverse action, if the employer establishes that the adverse action nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff] will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d 315].)

•“ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes to make a same-decision showing must concede that it had mixed motives for taking the adverse employment action instead of denying a discriminatory motive altogether. But there is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.’ ” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p. 240].)

•“As a preliminary matter, we reject [defendant]’s claim that the jury could have found no liability on the part of [defendant] had it been properly instructed on the mixed-motive defense at trial. As discussed, the Supreme Court in Harris held that the mixed-motive defense is available under the FEHA, but only as a limitation on remedies and not as a complete defense to liability. Consequently, when the plaintiff proves by a preponderance of the evidence that discrimination was a substantial motivating factor in the adverse employment decision, the employer is liable under the FEHA. When the employer proves by a preponderance of the evidence that it would have made the same decision even in the absence of such discrimination, the employer is still liable under the FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive relief, and where appropriate, attorney’s fees and costs. As presently drafted, BAJI No. 12.26 does not accurately set forth the parameters of the defense as articulated by the Supreme Court, but rather states that, in a mixed-motive case, ‘the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.’ By providing that the mixed-motive defense, if proven, is a complete defense to liability, [defendant]’s requested instruction directly conflicts with the holding in Harris. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758], internal citations omitted.)

•“Pretext may … be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)