In Toney v. Clorox Company, No. 24-2567, 2025 WL 1201881 (9th Circuit April 25, 2025), the U.S. Court of Appeals for the Ninth Circuit, inter alia, reversed an award of summary judgment to defendant on plaintiff’s claim of wrongful termination (discrimination) based on gender.
From the decision:
In this employment discrimination case, we address the plaintiff’s burden to raise a triable issue of fact as to pretext under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973) as adopted by Washington courts. Scrivener v. Clark Coll., 334 P.3d 541, 546 (Wash. 2014) (en banc).
Once the defendant has proffered a reason for the termination, a plaintiff may establish pretext “indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable[.]” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (citing Godwin, 150 F.3d at 1220–22). Pretext may also be established by showing “that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.” Scrivener, 334 P.3d at 544 (citing McDonnell Douglas Corp., 411 U.S. at 792).
Clorox offered the reorganization of its sales staff and concerns about Toney’s employment competencies as non-discriminatory reasons for his termination. Specifically, Clorox stated that Toney had issues with strategic leadership, and that he could be difficult to work with. Toney offered evidence that Clorox’s reasons for terminating him were internally inconsistent, including positive annual performance evaluations, and minimal pretermination evidence of Clorox’s concerns about Toney’s performance. A reasonable jury could conclude that Clorox’s reasons for firing Toney were internally inconsistent. In addition, the company’s IGNITE Strategy, which was in effect at around the time of his termination is circumstantial evidence that Clorox had a goal to increase the number of women managers at the company in order to achieve its gender “representation targets.” The evidence is sufficiently “specific and substantial” to defeat Clorox’s motion for summary judgment, as it raises material questions of fact concerning Clorox’s reasons for firing him. Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005).
Based on this, the court concluded that plaintiff’s evidence “cumulatively presents genuine issues of material fact as to whether Toney’s termination constituted wrongful termination on the basis of gender.”