McClain v. County of Clark, No. 12-16888 (October 10, 2014): The Ninth Circuit Court of Appeals recently sided with an employer in a case in which the former employee claimed that he was subjected to ageist remarks. According to the court, the “[i]solated references” to the employee’s age and national origin failed “to rise to the level of direct evidence of discriminatory motive.”

Gary McClain was employed by the County of Clark in Nevada. McClain claimed that during his employment he was referred to as an “old dog” and a “crazy Canadian.” According to the county, during the last several years of his employment, many of McClain’s performance evaluations had included disciplinary violations. In addition, the county alleged that McClain had received many written reproofs. After another incident of insubordination, a letter was written recommending that McClain be discharged.

McClain filed suit claiming that the county subjected him to age, race, and national origin discrimination in violation of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, and state law. McClain claimed that, while he was employed by the county, he was referred to as an “old dog” and that the county favored younger employees. He also alleged that the county favored employees of Asian/Pacific Islander and Filipino backgrounds and that he was referred to as a “crazy Canadian.” The trial court granted summary judgment in favor of Clark County, and McClain appealed.

The Ninth Circuit characterized the “old dog” and “crazy Canadian” references as “isolated references” that did not rise to the level of direct evidence of discriminatory motive. Thus, the court concluded that McClain must show that (1) he satisfactorily performed his job, and (2) he was treated differently than similarly situated employees outside of his protected class.

According to the Ninth Circuit, McClain did not produce evidence calling his disciplinary violations into doubt. The court also found that the claim that the county favored workers of certain races or national origins over others was unfounded. With regard to McClain’s age bias claim, the court relied on evidence showing that five of the nine inspectors that the county hired in the two years preceding McClain’s discharge were over the age of 40. In assessing McClain’s race and national origin discrimination claims, the court noted that when two employees of Asian backgrounds committed violations similar to the ones McClain had committed, they received written reproofs similar to the ones the county had issued to McClain.

Based on these conclusions, the Ninth Circuit ruled that “the district court correctly determined that that McClain’s ‘sweeping conclusory allegations’ of unequal treatment failed to create a material issue of fact as to whether McClain was treated differently than those not in his protected class.” The court thus held that the trial court correctly granted summary judgment in the county’s favor.

Practical Impact

According to Albert C. Nicholson, of counsel in the Orange County office of Ogletree Deakins, “This case serves as a victory and a good reminder to employers that complete and consistent documentation to address an employee’s inappropriate behavior and poor performance can make a big difference and be a determining factor in defeating a discrimination lawsuit, particularly one in which the plaintiff makes ‘sweeping conclusory allegations’ of discrimination without providing specific facts to show direct discriminatory motive on the part of the employer.”

Nicholson continued, “The McClain case emphasizes the importance of having such documentation in place in order to defeat a discrimination claim by showing that the accusing employee has not performed his or her job satisfactorily and that the employer has not treated those in a protected class differently from those similarly situated that are not within the protected class. Therefore, employers should review their disciplinary policies and practices and make adjustments where necessary to ensure that complete and consistent documentation of employee behavior and performance is being done. Likewise, employers should establish a checks and balances process to confirm that discipline is being applied fairly and consistently among employees for the same or similar infractions. These practices will serve an employer well in defending against discrimination complaints.”