C. Disparate Treatment Theory of Discrimination. Plaintiff XXXX is pursuing his claim of racial discrimination by UPS on the theory of disparate

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1 C. Disparate Treatment Theory of Discrimination. Plaintiff XXXX is pursuing his claim of racial discrimination by UPS on the theory of disparate treatment, as well as disparate impact. Discriminatory or disparate treatment occurs where the employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of difference in treatment. Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1014 (1980). Under disparate treatment theory, if the plaintiff proves a prima facie case, the defendant must articulate some legitimate, nondiscriminatory reason for the adverse employment action; if such a reason is articulated, the plaintiff must in turn prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, Disparate treatment is the most common type of discrimination claim and may be articulated as a single claim relative to an individual or as a pattern and practice claim alleging systemic disparate treatment. See E.E.O.C. v. Sears, Robeuck & Co., 628 F.Supp. 1264, 1280 (N.D.Ill. 1986). In the instant case, the claim of disparate treatment is articulated in terms of a pattern and practice of systemic disparate treatment of minority workers as compared to white workers at the San Francisco facility of UPS. Plaintiff XXXX claims that UPS maintains a systematic policy of disparate treatment in the allocation of jobs and the provision of benefits and privileges of employment. An employee is protected from conditions in excess of those faced by his or her co-workers. Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1247 (1994) If the employer has a formal rule or policy of disparate treatment in either the allocation of jobs or the provision of benefits of employment, and the system is maintained into the charging period, the system or practice may be challenged. Rendon v. AT&T Technologies, 883 F.2d 388, (5 th Cir. 1989)(work assignment and promotion system); Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6 th Cir. 1978) (discriminatory seniority system); Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7 th Cir. 1971) (upholding a challenge to a retirement system even before it was applied to the plaintiff), cert denied. 404 U.S. 939 (1971).

2 In discriminatory system cases, a plaintiff challenges a presently maintained means of allocating employment opportunities or benefits, alleging that it discriminates under the anti-discrimination statutes. Even if the plaintiff is unable to demonstrate that he or she was personally denied a specific opportunity or benefit during the relevant period, the plaintiff may maintain the action because maintenance of a discriminatory employment practice adversely affects not just those who suffer the loss of tangible benefits but all members of the same protected class and even employees who are not protected class members but who have a right to a nondiscriminatory environment. See Waters v. Heublein, Inc., 547 F.2d 466, 470 (9 th Cir. 1976); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, (1972). Plaintiff XXXX claims that UPS engaged in a pattern or practice of employment discrimination in violation of FEHA. In a pattern or practice case it is the plaintiff s burden to establish by a preponderance of the evidence that racial discrimination was the employer s standard operating procedure the regular rather than the unusual practice. International Brotherhood of Teamsters v. United States, 97 S.Ct. 1843, 1855 (1977). The proof may be through statistical, non-statistical or anecdotal evidence. To establish this, Plaintiff XXXX offers evidence of the following: 1) statistical disparities in the promotion to management compared with the pool from which candidates are drawn; 2) the standardless and largely subjective promotion procedures; and 3) specific instances of discrimination. There is not doubt that where gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination under Title VII. City of Richmond v. J. A. Croson Company, 488 U.S. 469, 501 (1989). [A]llegations that there is a pattern or practice of discrimination would be difficult to prove without reference to the practices of the past. In short, the prior acts of the defendants regarding employment practices are relevant and material in determining whether present practices are illegal or tend to perpetuate past discriminatory practices. United States v. Bethlehem Steel Corporation, 312 F.Supp. 977, 992 (W.D.N.Y. 1970).

3 Work force statistics are admissible to establish an inference of a pattern or practice of discrimination. United States v. Bethlehem Steel Corporation, 312 F.Supp. 977, 992 (W.D.N.Y. 1970). The court in that case stated: Id. [T]he difficulties inherent in the process should not render the use of such statistics improper. Probabilities guide men in their everyday affairs. Evidence of statistical probability may likewise be considered by a find of fact in determining the questions presented. Here, one of the elements of the practice of racial discrimination at UPS is its systematic elimination of racial minorities from selection for management and/or more desirable driving positions such as feeder driver. The statistics Plaintiff XXXX offer show - Statistics are often probative in determining the existence of a pattern or practice of disparate treatment. Penk v. Oregon State Board of Higher Education, 816 F.2d 458, 462 (1987). In fact, the initial prong of plaintiff s burden in a discrimination case be satisfied by statistical data indicating a statistical disparity between the overall percentage of nonwhites employed and the percentage of nonwhites in better paid managerial positions. See, Reed v. Lockheed Aircraft Corporation, 613 F.2d 757, 762 (9 th Cir. 1980); Davis v. Califano, 613 F.2d 957, (D.C.Cir. 1979). To establish a prima facie case of intentional discrimination under a disparate treatment case, the plaintiff must prove that he or she is a member of the protected class, has substantially the same qualifications as those not in the protected classes, but was not treated on an equal basis by the employer. E.E.O.C. v. Sears, Roebuck & Co., 628 F.Supp. 1264, 1280 (N.D.Ill. 1986). Under the disparate treatment theory of a case, the trier of fact is required to at least consider such oblique evidence of discrimination in non-challenged practices. Soria v. Ozinga Brothers, Inc., 704 F.2d 990, (7 th Cir. 1983). A disparate treatment plaintiff may rely on statistical evidence to establish a prima facie case or to show that a defendant s articulated nondiscriminatory reason for the employment decision in question is pretextual. Lowe v. City of Montrovia, 775 F.2d 998, 1008 (9thCir. 1986).

4 The United States Supreme Court has articulated the well-established framework for evaluation of the proof in a discrimination case based under the disparate treatment theory: The plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. This burden is not onerous. Once the plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the employer must present evidence that its decision was based upon a legitimate nondiscriminatory reason. Once the employer has articulated a plausible, legitimate, nondiscriminatory reason, the plaintiff has the final, ultimate burden of persuading the jury of intentional discrimination. The evidence which a plaintiff can present in an attempt to establish that the employer s stated reasons are pretextual may take a variety of forms. One form may be the employer s past treatment of the plaintiff. A plaintiff should not be restricted in the way in which the ultimate burden of persuasion is met. Patterson v. McLean Credit Union, 109 S.Ct. 2363, (1989). In determining the order and burdens of proof for claims under the FEHA, California courts look to analogous federal law. Heard v. Lockheed Missiles & Space Co., Inc., 44 Cal.App.4th 1735, (1996); Mixon v. Fair Employment & Housing Commission, 192 Cal.App.3d 1306, 1316 (1987). However, where California law is more liberal, California law applies. W atson v. Department of Rehabilitation, 212 Cal.App.3d 1271, 1290 (1989). The Ninth Circuit say it this way: [T]he plaintiff in a disparate treatment case must show the employer s intent to discriminate, but intent may be inferred from circumstantial evidence. [Citations omitted.] Once the plaintiff establishes a prima facie case of the employer s intent to discriminate, the employer must come forward with evidence of a legitimate, nondiscriminatory reason for the disparate treatment. The plaintiff may then seek to show that the proffered reason is merely pretextual. [Citations omitted.] Domingo v. New England Fish Company, 727 F.2d 1429, 1435 (9 th Cir. 1984). The requisite element of intent in a disparate treatment case is established by showing that the employer knowingly ratified a subjective, discriminatory practice. International Brotherhood of Teamsters v. United States, 431 U.S. 324, (1977); EEOC v. Inland Marine Industries, 729 F.2d 1129, (9 th Cir. 1984). Where an

5 employer is made aware of racial abuse and insults through numerous complaints and does not act to end it, an independent violation of Title VII is established. Kelly v. Disneyland, 1985 WL 327 (C.D.Cal. 1985). A disparate treatment plaintiff may rely on statistical evidence to establish a prima facie case or to show discriminatory intent or that a defendant s articulated nondiscriminatory reason for the employment decision in question is pretextual. Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9 th Cir. 1986). Statistical data is relevant because it can be used to establish a general discriminatory pattern in an employer s hiring or promotion practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue. Ibid. The decision as to an employer s true motivation plainly is one reserved to the trier of fact. Ibid. An employer s true motive in an employment decision is rarely easy to discern. Without a searching inquiry into these motives, those acting for impermissible motives could easily mask their behavior behind a complex web of post hoc rationalizations. Ibid. Statistical evidence alone cannot prove discriminatory animus; however, it may provide relevant circumstantial evidence. Lynn v. Regents of the University of California, 656 F.2d 1337, 1343 (9 th Cir. 1981). Statistics concerning the general atmosphere of discrimination, although not conclusive, are usually relevant to show that the same employer discriminated against an individual plaintiff. Lamphere v. Brown University, 685 F.2d 743 (lst Cir. 1982). In fact, in McDonnell Douglas v. Green, 411 U.S. 792 (1973) the Court specifically identified the employer s general policy and practice with respect to minority employment as evidence relevant to a pretext for racial animus. And, the Court found that one way of showing the employer s general policy and practice with respect to minority employment was through statistics. Id. Ar Once the employer offers a plausible explanation for the allegedly illegal employment conditions, the plaintiff must carry the burden establishing that the offered explanation is a pretext for the true purpose of illegal discrimination. Generally, there are three types of evidence that can be used to show pretext: (1) direct evidence of discrimination, such as discriminatory statements or admissions, (2) comparative evidence, and (3) statistics.

6 Evidence of racial slurs used in the workplace during the time Mr. XXXX was employed by any member of management is admissible under the disparate treatment theory of discrimination. See, Rowe v. Cleveland Pneumatic Company, 690 F.2d 88, 97 (6 th Cir. 1982). There, the court noted that unauthorized racial slurs by a foreman could be so excessive and opprobrious as to rise to the level of a violation of Title VII and went on to hold that such evidence is relevant and probative of both plaintiff s prima facie case of disparate treatment and of pretext. Ibid. A plaintiff need not be a member of the particular racial minority that is alluded to or portrayed in the racial slurs offered into evidence in order to be a victim of disparate treatment based on race. EEOC Decision No , 3 FEP 269, 270 (24 Dec 70). In that decision, the EEOC found that a Caucasian had stated a claim for disparate treatment based on race when he claimed the acts were based on his association with a racial minority group. Comments suggesting that the employer may have considered impermissible factors are clearly relevant to a disparate treatment claim. Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1438 (9 th Cir. 1990).