California Supreme Court Holds That Stray Remarks Made by Non-Decision Makers Can Be Considered in Age Bias Case

On August 5, the California Supreme Court handed down its decision in Reid v. Google, Inc., an age discrimination case that was dismissed at the trial court level on summary judgment. The trial judge dismissed the case after finding that “stray remarks” by individuals who had no involvement with the decision to terminate the plaintiff’s employment were insufficient evidence of discrimination to send the case to trial. The Court of Appeal reversed the trial judge’s order granting the employer summary judgment and held that the stray remarks by the non-decision makers was admissible to prove his claim of discrimination. The California Supreme Court agreed and rejected the strict application of the “stray remarks doctrine” in California discrimination cases. Reid v. Google, Inc., No. S158965, California Supreme Court (August 5, 2010).

Factual Background

Brian Reid, a 54-year-old manager, was discharged after being deemed not to be a “cultural fit” by Google. Reid alleged that substantially younger superiors made derogatory age-related remarks while he was employed by Google. He also alleged that others told him that his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and that he did not “display a sense of urgency” and “lacked energy.” Reid claimed that Google’s vice-president of engineering operations made age-related comments to him every few weeks. He also alleged that on several occasions, co-workers referred to him as “old man,” “old guy,” and “old fuddy-duddy,” told him his knowledge was ancient, and joked that his compact disc jewel case office placard should be an “LP” instead of a “CD.”.

In October 2003, Reid was removed from his position as Google’s director of operations, and relieved of all responsibilities as director of engineering even though he was allowed to retain the title. Employees that were 15 to 20 years younger than Reid assumed these responsibilities. Reid was then asked to develop and implement an in-house graduate degree program and an undergraduate college recruitment program, but was given no budget or staff to support the project. He was eventually terminated after being told that the engineering department no longer had a position for him. During his employment, Reid received one written review by management, which was positive.

Reid filed a lawsuit in Santa Clara Superior Court against Google alleging 12 causes of action, including age discrimination under California’s Fair Employment and Housing Act. The trial judge granted Google’s motion for summary judgment finding that Reid had failed to show sufficient evidence to raise a permissible inference that Google considered his age as a motivating factor in terminating his employment. In doing so, the trial judge found that the age-related comments directed at Reid were mere stray remarks made by individuals not responsible for the ultimate decision to demote Reid, and thus they could not be considered in determining whether the decision makers bore discriminatory animus toward Reid.

The Court of Appeal overturned this ruling, finding that Reid sufficiently raised a triable issue of material fact as to whether the stated reason for termination was pretextual. The California Supreme Court granted Google’s petition for review to determine: (1) whether evidentiary objections on which the trial court had not expressly ruled when it decided a summary judgment motion are preserved on appeal; and (2) whether California law should adopt the “stray remarks doctrine.” Google argued that the Court of Appeal erred in considering stray remarks by non-decision makers because the statements were ambiguous and unrelated to the decision to terminate Reid.

Legal Analysis

The California Supreme Court upheld the Court of Appeal’s ruling rejecting a strict application of the “stray remarks doctrine.” In doing so, the court concluded that age-based remarks made outside the context of an employment decision or uttered by a non-decision maker may be relevant, circumstantial evidence of discrimination. Thus, when deciding summary judgment motions, the California Supreme Court held, courts should not “weigh” the evidence by discounting age-related comments as “stray remarks.” Instead, such weight and inferences should be left for the trier of fact.

The court explained that stray remarks are to be considered by the trial court as part of the totality of circumstances to be evaluated when determining whether discrimination took place. In other words, the “stray remarks doctrine” should be looked at as nothing more than a “common-sense proposition” that a slur, in and of itself, does not prove actionable discrimination. Thus, a stray remark alone generally does not create a trial issue of age discrimination. However, when combined with other evidence of pretext, an otherwise stray remark may create an “ensemble” that is sufficient to defeat summary judgment.

As for the remaining issue on appeal, the California Supreme Court held that a party’s objections to evidence lodged at the trial court level are preserved on appeal, even if the trial judge does not rule on those objections. Objections that are not specifically ruled upon are deemed presumptively overruled on appeal.

Practical Impact

According to a shareholder in Ogletree Deakins’ San Francisco office: “The Reid decision now makes it even more difficult to weed out frivolous age discrimination cases at the summary judgment level. The Reid decision effectively allows a plaintiff to force a trial by submitting evidence of stray remarks taken out of context by different co-workers, which were made at different points in time and unrelated to the ultimate adverse employment decision. As a result of this decision, employers must revise their written policies and training materials to reinforce the notion that ageist or other discriminatory remarks or jokes will not be tolerated at any level.”