Back

The Duty of Fair Representation is a continuum of actions and actions that are

February 16, 2022

California

,

United States of America

Issue

In what circumstances will a labor union be found to have breached its duty of fair representation by discriminating against a member?

Conclusion

When a labor organization has been selected as the exclusive representative of the employees in a bargaining unit, it has a duty as the exclusive representative of the employees in the unit to represent all members fairly. (Marquez v Screen Actors)

A union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith. (Marquez v Screen Actors)

The duty of fair representation is analyzed on a continuum, from unintentional actions to intentional actions. (Beck v. United Food and Commercial Workers Union)

Unintentional actions are those that are arbitrary. Conduct is arbitrary when it is without a rational basis or explanation. There is a deferential standard for arbitrary conduct. Arbitrary actions can only breach the duty of fair representation when the act substantially injures the union member, such as when the union's arbitrary act completely extinguishes the employee's grievance rights. (Beck v. United Food and Commercial Workers Union)

Intentional actions can breach the duty of good faith if the union exercised its judgment in a bad faith or discriminatory manner. To establish that a union's exercise of judgment was discriminatory, the plaintiff must adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives. To establish that a union's exercise of judgment was in bad faith, the plaintiff must show substantial evidence of fraud, deceitful action, or dishonest conduct. (Beck v. United Food and Commercial Workers Union)

In the unpublished decision of Badkin v. Lockheed Martin Corp., the Ninth Circuit Court of Appeals recently determined that a union's decision not to advance a grievance to arbitration was an exercise of the union's judgment. A union's action can be discriminatory only if there is intentional and severe discrimination unrelated to legitimate union objectives. There was no evidence that the union exercised its judgment in a discriminatory fashion. Further, there was no evidence that the decision not to arbitrate was in bad faith. At most, the union was negligent. Mere negligence cannot support a claim of unfair representation.

However, in Beck v. United Food and Commercial Workers Union ("Beck") the Ninth Circuit Court of Appeals found that the union had acted arbitrarily in failing to grieve the plaintiff's sex discrimination claim and therefore had breached its duty of fair representation.

In Beck, the Ninth Circuit also found that the union's failure to file the grievance was due to a discriminatory motive based on the plaintiff's sex and therefore violated Title VII (42 U.S.C. § 2000e-2(c)(1)). This ruling was based on a number of findings, including that the union was an aggressive advocate for men but failed to provide the same quality of representation to women.

The precise contours of the nondiscrimination principle of the duty of fair representation are not clear. In Title VII, the duty to not discriminate runs to individuals or classes of individuals sharing a common characteristic. The duty of fair representation in the union context is distinct because unions must act in the general interest of their membership and it may have to compromise on positions that will favor a majority of its members at the expense of other members. (Addington v. US Airline Pilots Ass'n)

It is a violation of Title VII for unions to choose not to pursue certain classes of discrimination grievances. (Goodman v. Lukens Steel Company United Steelworkers of America v. Goodman)

Law

The United States Supreme Court set out the principles of the duty of fair representation in Marquez v Screen Actors, 525 U.S. 33, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (at 44):

When a labor organization has been selected as the exclusive representative of the employees in a bargaining unit, it has a duty, implied from its status under §9(a) of the NLRA as the exclusive representative of the employees in the unit, to represent all members fairly. See, e.g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953); Vaca v. Sipes, 386 U.S. 171, 177 (1967). As we described this duty in Vaca v. Sipes, the duty of fair representation requires a union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Ibid. In other words, a union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith. Id., at 190. See also Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991) (reaffirming this tripartite standard). In this case, petitioner does not argue that SAG's negotiation of the union security clause was discriminatory, so we only consider whether SAG's conduct was arbitrary or in bad faith.

In Beck v. United Food and Commercial Workers Union, 506 F.3d 874 (9th Cir. 2007) ("Beck"), the United States Court of Appeals for the Ninth Circuit set out in more detail what constitutes a breach of the duty of fair representation. The Court explained that the duty of fair representation is analyzed on a continuum, from unintentional actions to intentional actions. Unintentional actions are those that are arbitrary. Conduct is arbitrary when it is without a rational basis or explanation. There is a deferential standard for arbitrary conduct. Arbitrary actions can only breach the duty of fair representation when the act substantially injures the union member, such as when the union's arbitrary act completely extinguishes the employee's grievance rights. Intentional actions can breach the duty of good faith if the union exercised its judgment in a bad faith or discriminatory manner. To establish that a union's exercise of judgment was discriminatory, the plaintiff must adduce substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives. To establish that a union's exercise of judgment was in bad faith, the plaintiff must show substantial evidence of fraud, deceitful action, or dishonest conduct (at 878-880):

We first turn to the district court's holding that Local 99 breached its duty of fair representation in handling

[506 F.3d 879]

Beck's grievances. "The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985). The duty of fair representation exists because a single labor organization represents the interests of all employees within a unit, and "if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to `serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 n. 14, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). The burden of proving a breach of the duty of fair representation is on the plaintiff. Vaca, 386 U.S. at 193, 87 S.Ct. 903; Slevira v. W. Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000) (citing Vaca).

A union breaches its duty of fair representation when its "conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190, 87 S.Ct. 903; see also Air Line Pilots Ass'n. Int'l v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Conduct can be classified as arbitrary "only when it is irrational, when it is without a rational basis or explanation." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). This deferential standard for arbitrary conduct "gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong." Marquez, 525 U.S. at 45-46, 119 S.Ct. 292.

In light of this standard, we have analyzed the breach of the duty of fair representation on a continuum. See Peters v. Burlington N.R.R. Co., 931 F.2d 534, 539-40 (9th Cir.1991) ("`[M]inisterial act' and `act of judgment' represent . . . opposing points on a continuum that broadly attempts to separate discretionary decision making from inexplicable conduct."); see also Marino v. Writers Guild of Am., E., Inc., 992 F.2d 1480, 1486 (9th Cir.1993).

On one end of the continuum is intentional conduct by a union exercising its judgment. Peters, 931 F.2d at 539-40. As noted above, a union's conduct constitutes an exercise of judgment entitled to deference even when the union's "judgments are ultimately wrong." Marquez, 525 U.S. at 45-46, 119 S.Ct. 292. Under Supreme Court precedents, so long as a union exercises its judgment, no matter how mistakenly, it will not be deemed to be wholly irrational. Id. at 46, 119 S.Ct. 292; O'Neill, 499 U.S. at 78, 111 S.Ct. 1127. We may decline to give a union the deference owed to an exercise of judgment only where union actions or inactions are "so far outside a wide range of reasonableness that [they are] wholly irrational or arbitrary." O'Neill, 499 U.S. at 78, 111 S.Ct. 1127 (internal quotations and citations omitted); see also Peters, 931 F.2d at 540 ("[I]t makes little sense to allow a union to hide behind the mantle of `judgment' and `discretion' when the evidence suggests that it actually exercised neither."); Peterson, 771 F.2d at 1254 ("In all cases in which we found a breach of the duty of fair representation based on a union's arbitrary conduct, it is clear that the union failed to perform a procedural or ministerial act, that the act in question did not require the exercise of judgment and that there was no rational and proper basis for the union's conduct." (emphasis added)).

[506 F.3d 880]

Although we cannot deem a union's exercises of judgment to be wholly irrational and thus arbitrary, a union can still breach the duty of fair representation if it exercised its judgment in bad faith or in a discriminatory manner. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir.1988). To establish that the union's exercise of judgment was discriminatory, a plaintiff must adduce "substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives." Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) (internal quotations omitted); see also Vaca, 386 U.S. at 177, 87 S.Ct. 903. To establish that the union's exercise of judgment was in bad faith, the plaintiff must show "substantial evidence of fraud, deceitful action or dishonest conduct." Lockridge, 403 U.S. at 299, 91 S.Ct. 1909.

On the other end of the continuum are actions or omissions that are unintentional, irrational or wholly inexplicable, such as an irrational failure to perform a ministerial or procedural act, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir. 1983); see also Marquez v. Screen Actors Guild, Inc., 124 F.3d 1034, 1043 (9th Cir. 1997), aff'd, 525 U.S. 33, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). We have referred to such actions or omissions as "arbitrary" action. For example, courts have consistently refused to accept unions' claims that their actions involved any judgment or strategy where the union simply failed to perform some procedural act. See, e.g., Peters, 931 F.2d at 541 ("[plaintiff] had presented a triable question as to whether the union acted in a completely arbitrary, indifferent manner by failing to research the [collective bargaining agreement]"); Moore, 840 F.2d at 637 (failure to provide notice of meetings and tardy notification of a grievance decision might be arbitrary); Galindo v. Stoody Co., 793 F.2d 1502, 1514 (9th Cir.1986) (union representative's failure to notify employer that employee was a steward was arbitrary where the representative knew of impending layoffs); Dutrisac, 749 F.2d at 1274 (union's failure to file a grievance on time was arbitrary); Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1091 (9th Cir.1978) ("trier of fact could reasonably find that the Union's failure to disclose to appellant that her grievance would not be submitted to arbitration" was arbitrary).

These arbitrary actions can breach the duty of fair representation only where the act substantially injures the union member. Such an injury may arise in situations where "the individual interest at stake is strong" and the union's arbitrary action or omission "completely extinguishes the employee's [grievance] right[s]," Dutrisac, 749 F.2d at 1274, or where the union's arbitrary actions "`reflect reckless disregard for the rights of an individual employee,'" or "`severely prejudice the injured employee'" under circumstances that do not further the policies underlying the duty of fair representation. Marquez, 124 F.3d at 1043 (quoting Robesky, 573 F.2d at 1090).

In sum, in order to hold that union conduct breached the duty of fair representation, we must determine either that the union conduct at issue is a discriminatory or bad faith exercise of judgment, or is an arbitrary (meaning wholly irrational, inexplicable, or unintentional) action that substantially injured an employee. See, e.g., Marino, 992 F.2d at 1486.

In the unpublished decision of Badkin v. Lockheed Martin Corp., No. 19-35524 (9th Cir. 2020), the Ninth Circuit Court of Appeals recently determined that a union's decision not to advance a grievance to arbitration was an exercise of the union's judgment. A union's action can be discriminatory only if there is intentional and severe discrimination unrelated to legitimate union objectives. There was no evidence that the union exercised its judgment in a discriminatory fashion. Further, there was no evidence that the decision not to arbitrate was in bad faith. At most, the union was negligent. Mere negligence cannot support a claim of unfair representation (at 7-8):

2. When a hybrid § 301 claim challenges the exercise of a union's judgment, as opposed to conduct that is merely ministerial or procedural, a plaintiff "[t]ypically . . . may prevail only if the union's conduct was discriminatory or in bad faith." Demetris v. Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799, 805 (9th Cir. 2017); Burkevich v. Air Line Pilots Ass'n, Int'l, 894 F.2d 346, 349 (9th Cir. 1990); Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988).1 The Union's decision not to advance Badkin's grievance to arbitration was an exercise of the Union's judgment. Beck v. United Food & Com. Workers Union, Loc. 99, 506 F.3d 874, 879-80 (9th Cir. 2007) (distinguishing "intentional conduct by a union exercising its judgment" from "actions or omissions that are unintentional, irrational or wholly inexplicable, such as an irrational failure to perform a ministerial or procedural act"). A union's action is discriminatory only if there is intentional and severe discrimination unrelated to legitimate union

Page 8

objectives. Id. Here, there is no evidence of discrimination. Badkin admitted at deposition that he had no reason to believe that the Union was acting towards him with ill will or hostility. Likewise, the Union's representative testified that he treated Badkin as he would have treated any other member of the Union under similar circumstances. Badkin presents no evidence to the contrary.

3. In the context of a hybrid § 301 claim, a union acts in bad faith only when there is substantial evidence of fraud, deceitful action, or dishonest conduct. Beck, 506 F.3d at 880. Badkin argues that the Union's decision not to proceed to arbitration was done in bad faith. Badkin, however, fails to show a genuine issue of material fact on bad faith. Although Badkin argues that the Union failed to timely inform him about or provide him with a copy of the August 2016 resolution of Badkin's grievance between Lockheed and the Union, the Union consulted with its former attorney and concluded that Badkin's grievance did not have enough merit to proceed to arbitration. The facts are unclear why the Union did not on September 21, 2016 (or earlier) inform Badkin about or give him a copy of the written August 2016 memorialization of the resolution of Badkin's grievance, but there is no evidence from which a reasonable jury could conclude that the Union's failure to do so was in bad faith. At most, the Union was negligent. Mere negligence, however, cannot support a claim of unfair representation. See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985).

Under 42 U.S.C. § 2000e-2(c)(1), it is unlawful for a labor organization to discriminate against any individual because of their sex:

(c) Labor organization practices

It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

42 U.S.C. § 2000e(k) provides that "because of sex" and "on the basis of sex" include discrimination because of or on the basis of pregnancy:

(k) The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

In Goodman v. Lukens Steel Company United Steelworkers of America v. Goodman, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the plaintiffs were a group of employees who asserted racial discrimination claims against their employer and labor union. The allegations against the union were that the union failed to challenge discriminatory discharges, failed to assert instances of racial discrimination as grievances, and that it tolerated and tacitly encouraged racial harassment. The District Court found that the union had followed a policy of refusing to file grievable racial discrimination claims and, in effect, categorized racial grievances as unworthy of pursuit, which amounted to intentional discrimination. The Court of Appeal agreed with the District Court. The Supreme Court did not interfere with the District Court's factual findings and affirmed, concluding that unions may not choose not to pursue certain classes of discrimination grievances (at 667-669):

The Unions insist that it was error to hold them liable for not including racial discrimination claims in grievances claiming other violations of the contract. The Unions followed

Page 668

this practice, it was urged, because these grievances could be resolved without making racial allegations and because the employer would "get its back up" if racial bias was charged, thereby making it much more difficult to prevail. The trial judge, although initially impressed by this seemingly neutral reason for failing to press race discrimination claims, ultimately found the explanation "unacceptable" because the Unions also ignored grievances which involved racial harassment violating the contract covenant against racial discrimination but which did not also violate another provision. The judge also noted that the Unions had refused to complain about racially based terminations of probationary employees, even though the express undertaking not to discriminate protected this group of employees, as well as others, and even though, as the District Court found, the Unions knew that blacks were being discharged at a disproportionately higher rate than whites. In the judgment of the District Court, the virtual failure by the Unions to file any race-bias grievances until after this lawsuit started, knowing that the employer was practicing what the contract prevented, rendered the Unions' explanation for their conduct unconvincing.13

As we understand it, there was no suggestion below that the Unions held any racial animus against or denigrated blacks generally. Rather, it was held that a collective-bargaining agent could not, without violating Title VII and

Page 669

§ 1981, follow a policy of refusing to file grievable racial discrimination claims however strong they might be and however sure the agent was that the employer was discriminating against blacks. The Unions, in effect, categorized racial grievances as unworthy of pursuit and, while pursuing thousands of other legitimate grievances, ignored racial discrimination claims on behalf of blacks, knowing that the employer was discriminating in violation of the contract. Such conduct, the courts below concluded, intentionally discriminated against blacks seeking a remedy for disparate treatment based on their race and violated both Title VII and § 1981. As the District Court said: "A union which intentionally avoids asserting discrimination claims, either so as not to antagonize the employer and thus improve its chances of success on other issues, or in deference to the perceived desires of its white membership, is liable under both Title [VII] and § 1981, regardless of whether, as a subjective matter, its leaders were favorably disposed toward minorities." 580 F.Supp., at 1160.

The courts below, in our view, properly construed and applied Title VII and § 1981. Those provisions do not permit a union to refuse to file any and all grievances presented by a black person on the ground that the employer looks with disfavor on and resents such grievances. It is no less violative of these laws for a union to pursue a policy of rejecting disparate-treatment grievances presented by blacks solely because the claims assert racial bias and would be very troublesome to process.

The Supreme Court explained that the union's conduct violated the former § 703(c)(1) (now 42 U.S.C. § 2000e-2(c)(1)) (at 667):

The Unions submit that the only basis for any liability in this case under Title VII is § 703(c)(3), which provides that a Union may not "cause or attempt to cause an employer to discriminate against an individual in violation of this section," 78 Stat. 256, 42 U.S.C. § 2000e-2(c)(3), and that nothing the District Court found and the Court of Appeals accepted justifies liability under this prohibition. We need not differ with the Unions on the reach of § 703(c)(3), for § 703(c)(1) makes it an unlawful practice for a Union to "exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin." 78 Stat. 255, 42 U.S.C. § 2000-2(c)(1). (Emphasis added.) Both courts below found that the Unions had indeed discriminated on the basis of race by the way in which they represented the workers, and the Court of Appeals expressly held that "[t]he deliberate choice not to process grievances also violated § 703(c)(1) of Title VII." 777 F.2d, at 127. The plain language of the statute supports this conclusion.

However, the Court distinguished the union's obligations under Title VII from its duty of fair representation (at 667):

The Court of Appeals is also faulted for stating that the Unions had violated their duty of fair representation, which the Unions assert has no relevance to this case. But we do not understand the Court of Appeals to have rested its affirmance on this ground, for as indicated above, it held that the Unions had violated § 703.

In Beck, supra, the Ninth Circuit Court of Appeals found that the union had acted arbitrarily in failing to grieve the plaintiff's sex discrimination claim and therefore had breached its duty of fair representation. However, the Court also went on to address the plaintiff's Title VII discrimination claim, in which the plaintiff alleged that the union had discriminated against her by failing to provide her with the same quality of representation as it provided to similarly situated men. The Court explained that a union violates 42 U.S.C. § 2000e-2(c)(1) if it deliberately declines to pursue a member's claim because of their gender (at 882):

Section 703(c)(1) of Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for a labor organization . . . to discriminate against[ ] any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1). A union violates Title VII if it deliberately declines to pursue a member's claim because of the member's gender. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 671-74 (9th Cir.1988).

The Court explained that the McDonnell Douglas burden-shifting framework applies to a Title VII acion against a union and that a union member can make a prima facie claim of discrimination by introducing evidence that the member was singled out and treated less favorably than others similarly situated on account of a prohibited ground of discrimination. If the plaintiff succeeds in establishing a prima facie case of discrimination against the union, the burden shifts to the union to articulate a legitimate, nondiscriminatory reason for the less favorable treatment (at 882-883):

The standard burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to a Title VII action against a union. See Pejic, 840 F.2d at 674. Adapting the McDonnell Douglas criteria3 to a § 703(c)(1) action, a union member can make a prima facie claim of discrimination by introducing evidence that the member "was singled out and treated less favorably than others similarly situated on account of race or any other criterion impermissible under the statute." Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir.1982); see

[506 F.3d 883]

also Pejic, 840 F.2d at 674. As in McDonnell Douglas, such a showing of disparate treatment raises an inference of discrimination "because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

If the plaintiff succeeds in establishing a prima facie case of discrimination against the union, the burden of production shifts to the union to articulate a legitimate, nondiscriminatory reason for the less favorable treatment. Pejic, 840 F.2d at 674. The union must provide "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the . . . action." Hicks, 509 U.S. at 507, 113 S.Ct. 2742. Once the defendant produces sufficient evidence to satisfy this burden, "`the McDonnell Douglas framework — with its presumptions and burdens' — disappear[s]," Reeves v. Sanderson Plumbing Prods., Inc.,530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hicks, 509 U.S. at 510, 113 S.Ct. 2742), and the plaintiff "retains that ultimate burden of persuading the [trier of fact] that [he] has been the victim of intentional discrimination." Hicks, 509 U.S. at 508, 113 S.Ct. 2742 (internal quotations omitted).

The trier of fact may infer the ultimate fact of intentional discrimination from the plaintiff's prima facie case and disbelief of the defendant's explanation for the action. See Reeves, 530 U.S. at 147, 120 S.Ct. 2097 ("Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."); Hicks, 509 U.S. at 511, 113 S.Ct. 2742. However, a trier of fact is not required to infer discrimination even if the employer's proffered explanation is unpersuasive. Reeves, 530 U.S. at 148, 120 S.Ct. 2097; see also Hicks, 509 U.S. at 524, 113 S.Ct. 2742.

The plaintiff may prove a defendant's discriminatory motive through circumstantial evidence alone (at 883-884):

It is well established that a Title VII plaintiff may prove a defendant's discriminatory motive through circumstantial evidence alone. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Aikens, 460 U.S. at 714 n. 3, 103 S.Ct. 1478; Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030 (9th Cir.2006). Evidence that one or more similarly situated individuals outside of the protected class received more favorable treatment can constitute sufficient evidence of discrimination for a Title VII plaintiff to prevail. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (holding that a plaintiff can establish a Title VII violation based on evidence that two white employees "were discharged for their alleged participation in a misappropriation of cargo . . . but that a fellow [non-white] employee . . . was not"); Noyes v. Kelly Servs., 488 F.3d 1163, 1172 (9th Cir.2007) (evidence that an employer favored a "more junior, less qualified" religious employee over a non-religious employee supported an inference of discrimination); Josephs v. Pac. Bell, 443 F.3d 1050, 1065 (9th Cir.2006) (holding that the district court did not err in admitting comparative evidence regarding three similarly situated employees); Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir.2003) (evaluating comparative evidence regarding two other employees); Raad v. Fairbanks N. Star Borough, 323 F.3d 1185, 1194 (9th Cir.2003) (holding that plaintiff "demonstrated a genuine factual dispute as to whether . . . proffered reasons were pretextual," where defendant

[506 F.3d 884]

hired a less-qualified applicant); cf. Snead v. Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001) (evidence that one other similarly situated employee was treated in a similar manner negated plaintiff's showing of pretext).

In this case, the District Court had found that the union's failure to file the grievance was due to a discriminatory motive based on the plaintiff's sex. This ruling was based on a number of findings, including that the union was an aggressive advocate for men but failed to provide the same quality of representation to women. The Ninth Circuit declined to interfere with these findings and affirmed the District Court's ruling on the Title VII claims (at 884-885):

In this case, the district court held that Beck proved the ultimate fact of intentional discrimination based on her prima facie case. Relying on EEOC v. Reynolds Metals Co., 212 F.Supp.2d 530, 539-40 (E.D.Va.2002), the district court stated, "To establish a Title VII sex discrimination claim against a union, a

Alexsei publishing date:
130