DeJung v. Superior Court, 169 Cal. App. 4th 533 (2008)

Theodore DeJung, a former part-time commissioner of the Sonoma County Superior Court, filed a lawsuit alleging age discrimination after he was not selected to become a full-time commissioner. Before DeJung’s application was denied (in favor of a 43 year old), the Court’s presiding judge told him that the executive committee “want[s] somebody younger [for the fulltime commissioner’s position], maybe in their 40’s.” In addition, the presiding judge told DeJung’s former bailiff that “we’re looking for someone younger [than DeJung for the position].” The trial court (the Sonoma County Superior Court) granted the Superior Court’s motion for summary judgment based on the doctrine of discretionary immunity for public employers and because DeJung had failed to raise a triable issue of material fact regarding his claim. The Court of Appeal reversed, holding that discretionary immunity does not apply to discrimination actions brought under the Fair Employment and Housing Act. Further, the Court held that under the “cat’s paw” doctrine, evidence of discriminatory animus by a significant participant in the employment decision (the presiding judge) raised an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.