Poor Performance or Pretext for Discrimination?

I see this quite often: a long-time employee with a good work record all of the sudden becomes incompetent or mistake-prone thus forcing the employer to fire the employee. Sometimes, this really happens. Often, however, its just an employer who wants to fire an employee, forgets that California is an at-will employment state, and thinks it has to cook up a reason to fire the employee who is probably “too old” and making too much money.

Since California is an at-will employment state, employers can discharge an employee for no reason, absent a contract to the contrary, of course, and absent any reasons violating anti-discrimination laws. But many employers think a better course of action is to start nitpicking the target employee and then use that as an excuse to fire the employee.

In a recent case, Carol Cheal, a 20-year employee of El Camino Hospital, suddenly became incompetent afer she got a new supervisor. The new supervisor started nitpicking Cheal’s work and later had Cheal fired.

Cheal filed a lawsuit alleging age discrimination in violation of FEHA, among other things, and El Camino Hospital filed motion for summary judgment which the trial court granted.

The judgment was reversed because the appellate court concluded there were triable issues of fact about whether or not Cheal was performing adequately as an employee.

In its opinion, the court noted that it is the employer who sets the standard for what constitutes the satisfactory performance of an employee.  That makes sense. And then the court noted, “…so long as the standards are applied evenhandedly.”

Which apprently wasn’t the case here.

Here’s an important note for plaintiff attorneys to keep in mind during discovery in cases like this:

Evidence of the employer’s policies and practices, including its treatment of other employees, may support a contention, and an eventual finding, that the plaintiff’s job performance did in fact satisfy the employer’s own norms. Such a finding not only carries the plaintiff’s burden to show competence under the McDonnell Douglas/Guz analysis; it also grounds an inference that the true motive for the challenged action lay somewhere else, as in discriminatory animus.

 Here, plaintiff was able to provide some evidence the employer treated younger employees differently in terms of performance standards.

Plaintiff also had a declaration from a witness stating the mean new supervisor favored younger workers.

It appears from this opinion the trial court issed a results-oriented decision granting defendant’s MSJ. I like this opinion because the court admonishes the the trial judge fairly strongly for not look at plaintiff’s evidence and for applying the wrong standard.

It is the policy of the courts, supposedly, to resolve cases on their merits rather than by dispositive motions like motions for summary judgment. That’s why a tie goes to the runner.

The court also commented on the state of summary judgment motion practice:

As too often happens, the merits of the case were obscured to the point of invisibility in the deluge of statements, counter-statements and objections, that mark modern summary judgment practice.

A true statement. MSJ’s have become billable machines for some firms. Separate statements exceeding 20 pages are becoming common and often, the majority of the facts in separate statements are really irrelevant in the overall scheme of things.

I think no-evidence motions for summary judgments work well to dispose of meritless claims. They have this procedure in Texas (Tex. Rule Civ. Proc. 166a(i)) and I think it works well to cleanse the dockets of bogus cases.

But back to this case. If you have a case where your client suddenly became incompetent despite years of successful employment, and your client is over 40 years old or otherwise falls into a protected class, take a good look at this case. Make sure the trial judge is aware of this case when filing your opposition to the perfunctory MSJ!

Cheal v. EL Camino Hosp., 2014 Cal. App. LEXIS 102 (January 31, 2014)

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