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Courts Can Discriminate, Too

The First District Court of Appeal in San Francisco has ruled that a Sonoma County Superior Court Commissioner may pursue an age discrimination claim against the Court over the Superior Court’s claim of discretionary immunity under Government Code section 820.2. See DeJung v. Superior Court, Case No. A116911 (Dec. 19, 2008).

DeJung (age 64) alleged that the Executive Committee of the Superior Court judges refused to appoint him to a full time position because they preferred a younger candidate. Relying on the California Supreme Court’s decision in Caldwell v. Montoya, 10 Cal.4th 972 (1995), the Superior Court argued that the decision to appoint a commissioner was a discretionary one immune from liability under section 820.2. The Court of Appeal explained that Caldwell only immunized individual government officials for their discretionary decisions. The Supreme Court had expressly declined to rule whether section 820.2 would provide immunity from a direct liability claim under the Fair Employment and Housing Act against a government entity, like the one alleged by DeJung. The Court of Appeal decided that it did not.

On the merits, DeJung provided evidence that the presiding judge had said twice that the judges wanted someone younger than DeJung. The Superior Court attempted to overcome that evidence by arguing that the decision was made by a committee, of which the presiding judge was just one member. The argument was punctured by the claws of the “cat’s paw” doctrine, that is, as the Court explained, “showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory.”

[The phrase cat’s paw is derived from a La Fontaine fable entitled The Monkey and the Cat, in which a monkey convinces a cat to pull chestnuts out of hot coals for him, and refers to using another (the cat’s paw) to accomplish one’s purposes.]

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