Motions for summary judgment are among the most important—and efficient—devices for defeating a discrimination suit brought by an employee against an employer. If successful, these motions serve to narrow issues to be litigated, avoid costly trials, and encourage opposing parties to consider settlement. As such, in defending a summary judgment motion in a discrimination case, employers may want to focus on three points in their presentation of evidence:

  1. Negate the employee’s case. An employer bringing a motion for summary judgment in a discrimination case should provide evidence that clearly and conclusively negates a necessary element of the employee’s case.
  2. Establish a legitimate justification for the alleged adverse action. An employer must demonstrate that the employee’s evidence is too weak to sustain a reasoned inference in the employee’s favor. At the same time, the employer’s evidence must be compelling; any significant uncertainties about the accusations lodged against an employee can serve to cast doubt on the legitimacy of the justification for the employer’s actions.
  3. Introduce evidence wisely. Employers should ensure that their summary judgment motions include only essential evidence and omit unnecessary information that might overwhelm the court. Defendants must clearly and straightforwardly address the issue of pretext instead of attempting to succeed by utilizing a flood of evidence to mask other deficiencies in the case.

The California Court of Appeal recently decided a case that serves as a good reminder to employers about the type of evidence that they must present to win a motion for summary judgment. In Cheal v. El Camino Hospital, the plaintiff, Carol Cheal, sued her employer, El Camino Hospital, claiming that her discharge had been the product of age discrimination. The employer filed a motion for summary judgment, which the trial court granted. On appeal, however, the California Court of Appeal reversed the trial court’s judgment and ruled that the employee’s case should proceed to trial.

What happened? The appeals court considered the first of the three points—negating the employee’s case. In Cheal, the issue was whether the employee had demonstrated one of the elements of her prima facie discrimination case, namely that she had been “performing competently in the position [s]he held.” The appeals court found that the employer had provided some evidence that Cheal had not performed her job in a satisfactory manner, but that the evidence had been insufficient to meet the required test. Employers cannot establish the governing standard of competence by which to compare an employee’s performance “merely by asserting that the plaintiff’s performance was less than satisfactory,” the appeals court wrote. The three-judge appellate panel ruled that in addition to demonstrating that Cheal’s job performance had been deficient in some manner, El Camino Hospital was required to establish that Cheal’s performance did not, in fact, satisfy the employer’s own norms. This required the employer to provide evidence of its policies and practices, including its treatment of other employees, before the court could find that no triable issue existed with respect to the employee’s job performance.

When an employee has made out a prima facie case of discrimination, the employer has a rebuttal opportunity to prove that its actions against the employee were taken for a legitimate business reason (which the employee can then attempt to prove was mere pretext for discrimination). In this case, the appellate court found that the trial court had incorrectly refused to admit certain evidence, including a third-party’s declaration averring that Cheal’s supervisor said she preferred younger workers. The appellate court invoked the “declaration against interest” hearsay exception in finding that this “smoking gun” declaration should have been admitted into evidence.

This ruling was important because the statement contained in the declaration undermined the hospital’s assertion that Cheal could not establish pretext. As a result, the court found that the improperly excluded statement was essentially a confession of bias, providing “an ample basis for a finding that [the supervisor’s] treatment of plaintiff had nothing to do with genuine deficiencies in [Cheal’s] work and everything to do with discriminatory animus against older workers.”

The appellate court also criticized the hospital’s “deluge” of documents and objections, finding the torrent of information obscured a record that “clearly raises triable issues of fact.” This admonition reminds employers to carefully choose the documents and statements that they introduce as evidence in a case. While it may seem counterintuitive, it is often wise to consider using only relevant, helpful, and pointed depositions, documents, and other forms of discovery.


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