Cheal v. El Camino Hospital, H036548 (January 31, 2014): In a recent decision, the California Court of Appeal held that a worker may proceed with her claim for age discrimination following her discharge from employment for allegedly poor performance. The court held that the issues to be decided at trial are (1) what the employer considers competent job performance and (2) whether the employee performed her job at that level.

Carol Cheal was hired by El Camino Hospital in 1987 and worked as a diet tech for the hospital’s nutrition services department until October 2008, when she was discharged from her employment at age 61. Her job involved preparing menus for patient meals that comply with hospital procedures and doctors’ orders.

Cheal consistently received positive performance reviews until mid-2007 when a new supervisor, Kim Bandelier, was hired. Between January and September 2008, Bandelier accused Cheal of various mistakes in preparing menus, including allowing a patient who was restricted to “pudding thick” liquids to receive thinner, “honey thick” liquids. At the end of September 2008, a hospital manager told Cheal that she was no longer considered competent to work as a diet tech and could either accept another position, take a severance package, or be discharged. One week later, Cheal notified the hospital that any further communication should go through her attorney. The hospital fired Cheal in October 2008.

Cheal sued the hospital for age discrimination, wrongful demotion and termination, failure to investigate or take corrective action against age discrimination, and retaliation. After a lengthy answer by the hospital, including 77 alleged undisputed facts, and a lengthier response from Cheal with 37 more facts, the trial court granted summary judgment in favor of the hospital. The court ruled that since Cheal “made several mistakes on menus between January and May in 2008,” she would not be able to show that she “performed her job in a satisfactory manner.” The trial court also ruled that Cheal did not provide substantial evidence that the hospital acted with discriminatory animus when it fired her.

The Court of Appeal disagreed. It noted that two triable issues need to be determined: (1) what the hospital considered a competent level of performance, and (2) whether Cheal performed at that level. The Court of Appeal pointed to the fact that the hospital “anticipated and expected” some level of mistakes in preparing 500 meals daily. In fact, the hospital’s preprinted evaluation forms listed competency for certain skills—such as “menu writing skills”—as having “less than one error per day.” Further, the record did not show that Cheal had made numerous errors.

Regarding the hospital’s discriminatory intent, the Court of Appeal held that a declaration by Bandelier’s friend, quoting Bandelier as saying “people are starting to notice I’m favoring the younger and pregnant” workers, should not have been excluded as hearsay since it was a statement against interest, exposing her to civil liability.

According to Leslie Wallis, a shareholder in the Los Angeles office of Ogletree Deakins: “Employers’ policies and practices need to be consistently enforced among all of their employees. In the Cheal case, the employee showed that other workers made similar mistakes but were not disciplined by the employer. Employers also need to ensure that the terms and application of their policies are consistent so that it is clear when an employee’s actions do not comply with an employment policy. In this case, the fact that the company’s evaluation form ranked employees as competent despite making some mistakes was evidence that Cheal may have been a victim of bias.”

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