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Mwaniki v. eBay9/23/2005
90 U.S. at pp. 259 (conc. opn. of White, J.), 276 (conc. opn. of O'Connor, J.); see Marks v. United States (1977) 430 U.S. 188, 193 [when there is no majority reasoning, the court's position is that taken by members who concurred on the narrowest ground].) Justice O'Connor explained the rationale for the distinction between motivating and substantial factors for purposes of the causation element in an employment discrimination action as follows: "The plurality proceeds from the premise that the words `because of' in the statute do not embody any causal requirement at all. Under my approach, the plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision such that a reasonable factfinder could draw an inference that the decision was made `because of' the plaintiff's protected status. Only then would the burden of proof shift to the defendant to prove that the decision would have been justified by other, wholly legitimate considerations." (Price Waterhouse v. Hopkins, supra, 490 U.S. at pp. 277-278 (conc. opn. of O'Connor, J.).)
Here, following the Price Waterhouse approach, the parties might have drafted the verdict form so that it asked causation in one question, e.g., whether the decisionmakers "placed substantial negative reliance on an illegitimate criterion in reaching their decision." (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.).) As it was, however, the form can be interpreted as asking causation in two questions. The first, question 3 (whether retaliation motivated plaintiff's discharge), if answered affirmatively, will not establish causation under Price Waterhouse. The second, question 4 (whether retaliation was a substantial factor in causing harm to plaintiff) asks in a different way essentially what Justice O'Connor would ask. In short, under Price Waterhouse, there is nothing inconsistent with finding that retaliation motivated plaintiff's discharge but was not a substantial factor in causing harm to plaintiff. It is true that a jury might reach such a decision after accepting the evidence supporting a defendant's mixed-motive affirmative defense only to never reach the verdict-form question asking whether the defendant established the affirmative defense. But this anomaly merely presents the question whether an affirmative defense is necessary when the affirmative-defense evidence serves to negate an element of the cause of action.
Mixed-Motive Instruction
Defendant contends that the trial court erred by instructing the jury in the language of BAJI No. 12.26. She concedes that the instruction is consistent with Price Waterhouse v. Hopkins, supra, 490 U.S. 228. And she concedes that the jury never reached the mixed-motive question on the special verdict form, which was question 5. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206 [no instructional error when jury never reached issue covered by instruction].) She nevertheless argues that California should not adopt the mixed-motive rule because it improperly allows the jury to speculate on the degree of causation and find for a defendant whose motives were 51 percent lawful. She urges that the jury could have reached its inconsistent verdict only by considering BAJI No. 12.26 and concluding that defendant would have lawfully discharged her without taking into account the retaliation factor, a consideration and conclusion outside the scope of question 4 though within the scope of defendant's affirmative defense.
But we have explained that, if the verdict is inconsistent, plaintiff has invited the error because she submitted the verdict form that permitted the supp
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