In Cheal v. El Camino Hospital, No. H035548, published January 31, 2014, the Court of Appeal overturned summary judgment for an employer, holding an employee plaintiff had raised triable issues of fact with respect to whether she was performing adequately at the time of her discharge, and whether the discharge was the product of discriminatory animus against older workers.
Plaintiff Carol Cheal was 61 years old at the time of her October 2008 discharge from employment with El Camino Hospital (Hospital). She had worked as a “Diet Tech,” preparing menus for patient meals per doctor orders and hospital procedures. Plaintiff had received positive performance reviews through August 2007. Around that time, the Hospital hired a new supervisor, who subsequently accused Plaintiff of numerous shortcomings in preparing patient menus. In September 2008, Plaintiff was informed she was no longer considered competent to perform her duties. The Hospital presented plaintiff with the following options: take another position, accept a severance package, or be discharged. Plaintiff referred the Hospital to her attorney, and was terminated shortly thereafter.
Plaintiff filed a lawsuit against the Hospital for age discrimination. The trial court granted the Hospital summary judgment as it reasoned Plaintiff had not met her burden to show she performed her job in a satisfactory manner at the time of discharge. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) It also held Plaintiff failed to produce substantial evidence that the Hospital’s nondiscriminatory reasons for termination were pretextual, or that it acted with discriminatory animus.
The Court of Appeal reversed. It held Plaintiff had established triable issues of fact both as to what the Hospital considered competent performance, and as to whether Plaintiff had performed at that level. The record suggested the Hospital anticipated and accepted a certain number of mistakes in making menus, including an evaluation form which alluded to the acceptability of a certain number of errors. Moreover, other employees had made mistakes similar to those that Plaintiff allegedly made. Plaintiff submitted a declaration suggesting many of her alleged protocol breaches were merely a result of adjusting to the new supervisor’s new procedures. The evidence supported an inference Plaintiff had cured noncompliance with new protocols by the time of her discharge. The Court concluded the record did “not show [Plaintiff had committed] ‘several errors’ as a matter of law, and it [did] not show that some number of errors – even ‘several’ – necessarily fell below the hospital’s standards of performance.”
The Court of Appeal also disagreed that Plaintiff had failed to produce substantial evidence of animus. Plaintiff submitted a critical declaration of a friend of the new supervisor quoting the supervisor as saying she had been “favoring pregnant and younger” workers. The Court overturned the trial court’s exclusion of this evidence on hearsay grounds, and held the declaration was subject to an exception to the hearsay rule for statements against interest that risk civil liability. The evidence therefore created a triable issue sufficient to overcome summary judgment.
Cheal is a reminder that employers should review their policies in conjunction with performance evaluation forms to ensure consistency, and to diligently train their supervisors regarding anti-harassment laws.
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