Perez v. Ricardo’s On The Beach, Inc., No. B250360 (March 2, 2015): In an unpublished opinion, the California Court of Appeal recently ruled in favor of an employer on a waitress’s age discrimination claim. According to the court, the worker who argued that the restaurant hired several younger workers while she was on leave and when she returned from leave, failed to present “substantial responsive evidence” that the restaurant’s reasons for refusing her a regular position were a pretext for unlawful discrimination.
Amada Perez was employed by Dinah’s Family Restaurant as a waitress on a part-time basis. In 2010, Perez took a medical leave of absence spanning several months during which she underwent surgery—which Perez claimed was medically necessary. According to Perez, her employer assured her during her leave that she would be reinstated to her former job upon returning to work. Perez notified Dinah’s that she was ready to return to work and was told that only an on-call position was available. She accepted the position and returned to work averaging 26 hours of work per two-week period, whereas when she started her leave in 2010, she was averaging 44 hours of work per pay period.
While Perez was on leave, she was replaced with a waitress who Perez alleges was in her 20s. Upon returning to work, she applied for a regular position several times when permanent positions became available. Perez alleged that the restaurant hired a waitress who was in her 20s and another who was in her 30s. Perez also alleged that her supervisor, Laura Craig, made remarks about her age, telling her that she was “so old” and “slow.”
Perez claims that during a meeting with Teri Ernst, the general manager of the restaurant, Ernst told her to “Get the . . . out of here” and “leave, leave, leave.” Perez alleged that she returned to the floor and, when she was relieved for a break, she left the restaurant.
Perez sued the restaurant for disability discrimination, failure to accommodate, age discrimination, retaliation, and wrongful termination. The restaurant filed a motion for summary judgment, which the trial court granted. The trial court ruled in favor of the restaurant and entered a judgment of dismissal.
With regard to her age discrimination claim, Perez argued that the hiring of younger employees and Craig’s comments about her age were evidence of the restaurant’s discriminatory intent. The Court of Appeal found that, without anything more, this evidence does not establish age discrimination.
According to the court, Perez did not show that the younger workers had the same or inferior qualities to her, and she failed to present any evidence about the average age of the newly-hired waitresses. The court also noted that Perez failed to rebut the restaurant’s evidence that Perez refused several on-call assignments. Finally, the court noted that because Craig’s statements were not linked to any adverse action, “they constitute only weak circumstantial evidence of discriminatory animus or that intentional age discrimination was the true cause of defendants’ actions.” The court concluded that Perez “failed to present ‘substantial responsive evidence’ that the defendants’ stated basis for refusing her a regular position were pretextual and motivated by a discriminatory animus of age-related bias.”