The Ninth Circuit last week made it more difficult for employees to establish a discrimination claim where the alleged discriminator had previously hired and/or taken favorable action on the plaintiff-employee's behalf. In Coghlan v American Seafoods Company, No. 03-35314 (9th Cir. filed July 7, 2005), the Ninth Circuit determined that this so-called "same actor" inference makes an employee's burden in overcoming an employer's summary judgment "especially steep." The Court also expanded the rule beyond mere "hiring and ... firing" to cases where the employee is not actually fired but merely offered a less desirable job assignment.

The same actor inference is based on the principle that an employer's initial willingness to hire an employee is strong evidence that the employer is not biased against the protected class to which the employee belongs.
"[T]he point of the same-actor inference is that the evidence rarely is 'sufficient ... to find that the employer's asserted justification is false' when the actor who allegedly discriminated against the plaintiff had previously shown a willingness to treat the plaintiff favorably." Coghlan, citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-47 (2000).

In Coghlan, an employee filed suit against his employer alleging national origin discrimination. In 1997, Coghlan held the position of master on Katie Ann, an American Seafoods Company (ASC) vessel. In 1998, due to mandatory fleet downsizing, ASC took Coghlan's vessel out of service and he was appointed master to another vessel. The decision was made by Norwegian-born Inge Andreassen. Andreassen selected Coghlan for the position despite the availability of at least one Norwegian candidate. In 2000, ASC placed the larger Dynasty back into operation and Andreassen appointed Coghlan as its mate. While the transfer was technically a step down in rank, from master to mate, the new position provided an opportunity to make more money and Coghlan saw it as a desirable change. The Dynasty's new master was Kristjan Petursson, who was born in Iceland. On two occasions in the fall of 2001, Petursson was temporarily absent as master. On both occasions, Andreassen selected Norwegian-born Jarl Hogseth to fill the position. Coghlan considered himself more qualified than Hogseth. Andreassen stated in his declaration that he had made his decision upon the recommendation of Frank Vargas, the fleet operations manager and a native-born American of Filipino ancestry. In 2001, dissatisfied with the performance of the Dynasty, ASC's president, instructed Andreassen to change the Dynasty's leadership and to allow neither Petursson nor Coghlan to serve as its master. Andreassen consulted again with Vargas, removed Coghlan from the ship, and demoted Petursson to mate. Andreassen then offered Coghlan a position as mate on the Katie Ann. Coghlan found this offer objectionable considering he had previously held the position of master on Katie Ann. Hogseth was appointed as master. Coghlan thus declined the offer and brought a lawsuit alleging national-origin discrimination under Title VII and the Washington Law Against Discrimination. ASC moved for summary judgment.

The Ninth Circuit affirmed the district court's decision to grant summary judgment holding that Coghlan had not presented evidence sufficient to meet the burden imposed by the same-actor inference, as set forth above.

The Court also flatly rejected Coghlan's argument that "the same-actor inference is just one more factor for the jury to consider in making its decision and should not be used to grant summary judgment to the defendant," noting that Coghlan's argument "is the law in some circuits," but "clearly not the law in this circuit."

The Coughlan decision is an important reaffirmation of the defense available to employers in situations where the same individual who hires a plaintiff later demotes or terminates that employee. As a practical consequence of this decision, employers are well-advised to include the hiring decisionmaker in subsequent adverse decisions. Additionally, the input of decisionmakers who are involved in promotions or transfers could be advantageous in any disciplinary action. This simple step may allow an employer a compelling new defense to a later discrimination claim.