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CASES
SOME GENERAL QUESTIONS AND ANSWERS:
What Kind of Cases Do You Typically Handle?
Answer: We handle most issues that arise regarding an employee's relationship with their current and/or former employer, with the exception of worker's compensation claims. Examples of the types of cases we handle include, but are not limited to discrimination, harassment, wrongful termination, compensation disputes, review and/or negotiation of severance agreements, leave of absence rights, contract disputes, and various other issues that could arise from an employment situation.
Do You Handle Cases on a Contingency?
Answer: We evaluate each potential client's problem on a case-by-case analysis to determine the resources that would be needed to handle the matter, and only then do we make a determination as to how our office can proceed with the matter. We have taken many cases on a straight contingency, mixed contingency, and/or hourly basis.
Do You Give a Free Consultation?
Answer: The analysis of your employment case to determine whether or not we are the right firm to assist you is free.
You Asked for a Chronology, But What is That?
Our initial telephone conversations are short, but most potential client's situations are complex. Therefore, we would like you to tell us about your problem with your employer in a manner that allows us to give it the attention it deserves to be fully understood before we make the determination as to whether or not we are the right firm to assist you. This is why we asked you for a "chronology".
A chronology is a summary of your issues in a timeline format. The chronology should begin with your date of hire and your job position. It should then explain all important events that occurred during your employment that led to you calling us.
Write out a Sample Chronology, such as:
4-2000: I was hired as an Customer Service Clerk. I had to do data entry, filing, and general clerical duties. I had no negative performance reviews and was promoted twice.
2007-2009: I began having significant pain in my wrist, and went to see the doctor. My doctor diagnosed me with carpal tunnel syndrome. I was off of work for three months, and then my doctor allowed me to return but restricted the amount of time I could spend typing on the computer without a break.
1-3-2010: I returned to work and turned in my doctor's restrictions to my immediate supervisor. I was allowed to do my regular job for six months without issue. In fact, in March I was given a job performance evaluation that said I was doing at least satisfactory in my job. During this period of time, I was able to mix up my job duties in manner that followed my restrictions. For example, I would type for one hour, then do filing, etc.
7-1-2010: I got a new supervisor, Jane Doe. She told me that she wanted me to do all of my reports in the morning, and save the filing for the afternoon. I told her that doing all of the filing at one time would violate my doctor's restrictions. She did not care, and said that she wanted it done that way so that she could have all of the information she needed in the morning.
7-15-2010: I attempted to do the typing in the morning, but immediately started having problems with my wrists. I saw my doctor who prescribed a wrist brace and told me that I could not type more than one hour without a 15 minute break. I returned to work and gave Ms. Doe a copy of my doctor's new restrictions.
8-1-2010: Ms. Doe told me that my job required that I finish my typing in the morning, and that they had no jobs that would follow my doctor's restrictions. I was then terminated.
Don't stop here, continue and make sure you exhaust all facts, just the facts.
Discrimination
Question: My workplace hired someone younger than me (or, for example, hired someone who is male, or Caucasian, or not disabled, etc.) to replace me. Can I sue for discrimination?
Answer: It depends. The above information alone would not make a very strong case of discrimination. To be successful in a discrimination lawsuit, you need to show that the person who decided to terminate you was motivated by your category (e.g., age, race, gender, disability, etc.). For example, if your boss wanted only young people to work with him, and that was the reason he terminated you, then he was being discriminatory. There are many ways of showing discrimination, and potential claims are always evaluated on a case-by-case basis. Types of evidence we would look at include whether or not your employer had a legitimate basis for your termination (e.g., you violated a company policy), whether the decision-maker had made hostile statements against older workers in the past, whether he kept other older workers employed and treated them well, and/or other similar types of information. If you think you have been discriminated against, you should contact us so that we can review your facts fully.
Disability Discrimination
Question: If I need assistance in the workplace due to a disability, what do I need to do to make sure my employer gives me that assistance?
Answer: If you have a disability as defined by California's Fair Employment and Housing Act (generally, a physical or mental impairment that limits a major life activity), and feel that you are able to work with an accommodation, both you and your employer are required to engage in a good faith "interactive process" to determine what reasonable accommodations are needed that will allow you to work. An interactive process is defined as an on-going communication between you and your employer to determine a reasonable accommodation. Your employer must know that you have a disability, and you should make a specific request for the accommodation you and/or your doctor believe you need. Then, your employer must work with you to identify reasonable solutions that would allow you to perform the job.
Pregnancy Discrimination
Question: How much time can I take off if I am pregnant?
Answer: Generally, it depends on many factors that have to evaluated on a case-by-case basis. But, the factors would include whether you are disabled by the pregnancy (e.g., incapable of doing at least one essential job task without risk to yourself, your unborn child, or others). If you are disabled, you can take up to 16 weeks of job-protected leave, which can be used intermittently, and/or you must be accommodated in the workplace. Most women who have a normal pregnancy and/or delivery will be disabled for a period of time, typically six weeks. Further, if you meet the requirements of the California Family Rights Act (e.g., one year of service, etc.), then generally you can take an additional 12 weeks of protected leave if you have all of your leave time available.
Wage and Hour Claims
Question: I was hired as a manager, but I am frequently not acting as a manager, so am I owed overtime wages?
Answer: Probably. There are different requirements for overtime pay depending upon the type of job classification that you have. For example, nurses, truck drivers, outside salesmen, etc., may have rules specific to their job that mean that they are not entitled to overtime in the same manner as general workers. But, generally speaking, in California individuals are entitled to overtime unless they are "exempt". Many individuals are "exempt" because, for example, they are "managers". But, an employer must prove that the actual job duties that the "manager" performs the majority of the workday (over 50%) qualify that individual to be "exempt" from its duty to pay overtime. Therefore, even if you are called a manager, if you are required to do the work of a lower-level, non-exempt, employee, then you would probably be entitled to overtime pay.
More Wage and Hour Claims
Question: Am I entitled to a lunch period or rest break?
Answer: Generally speaking, everyone is entitled to a meal and rest period if they are working over 5 hours a day. There is a penalty if your employer fails to allow for these breaks. California Labor Code section 226.7 states, "(b) If an employer fails to provide an employee a meal period or rest period..., the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided."
Question: Can I sue a former employer for failing to pay me overtime wages?
Answer: Yes, there is a three-year statute of limitations to bring a claim for unpaid overtime, so claims within this period can be brought against a former and/or current employer.
At - Will
Question: Can I be fired even though I did an outstanding job for my employer and never engaged in any misconduct whatsoever?
Answer: Generally speaking, yes, although there are exceptions. In California, employees are "presumed" to be "at-will", meaning that you can leave your employment at any time and/or your employer can fire you at any time. But, there are exceptions to this rule. Obviously, if you are working under a contract (written or oral) and/or a collective bargaining agreement, you may not be "at-will". Further, even though you may be employed "at-will", you cannot be terminated in violation of a public policy. For example, your employer can not fire you due to race, religion, national origin, disability, gender, sexual orientation, etc., nor can you be fired because you engaged in an activity that public policy supports (e.g., whistleblowing against criminal activity in your workplace). If you feel you have been terminated "wrongfully", you should seek legal advice to see if your personal situation violates a public policy, because even if you are "at-will", you could have a claim for wrongful termination.
Sexual Harassment
Question: My coworker is very "touchy-feely" and it bothers me. Isn't this sexual harassment?
Answer: It depends. The law basically defines sexual harassment as unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature. So, for example, if the person is touching your hair, do you think they are doing it for sexual reasons? Does the person touch the hair of both men and women? Are there other events that make you feel it is sexual in nature such as leering, slurs or jokes that you find offensive? Not every situation is "sexual harassment", but if you are bothered by what you believe to be sexual harassment in the workplace, you should make a complaint about the conduct to management and/or human resources, and if it does not stop then contact us to see if you have any recourse based on the specific facts of your situation. You are protected by law from retaliation from making a complaint that you reasonably believed to be of sexual harassment, even if technically the actions do not meet the definition of sexual harassment.
Family Medical Leave
Question: I can't be terminated while out sick, right?
Answer: It really depends on the specific facts of your case. If you are not disabled as defined by the Fair Employment and Housing Act or ADA, nor do you have a "serious health condition" as defined by the California Family Rights Act, your employer might be able to legally terminate you. But, if your health meets the definition of "serious health condition" and you meet other various requirements (e.g., you have worked over one year), then you are protected from termination. Further, if you have a chronic "disability" as defined by the aforementioned laws, and you are missing work because of that disability, it might be possible that your employer cannot terminate you if they have not made attempts (i.e., accommodations) that would have allowed you to work. Since, the issue is so fact specific, you should contact us if you were terminated while out sick so that we can analyze whether or not any laws were violated in our opinion.
SOME SPECIFIC QUESTIONS AND ANSWERS:
Q: What must I prove in an employment discrimination case to win?
A: In order to prevail, you should show that:
You're a member of a protected class, such as age, gender, minority or disability.
You were qualified to perform the job.
You were discharged by your employer.
You were replaced by someone outside the protected class.
The employer's reason for discharging you was false and merely a cover for the real reason of discrimination.
Q: What's a "protected characteristic?"
A: A characteristic is protected if you can't be legally fired, laid off or not hired based on that characteristic. Protected characteristics include:
Age - 40 and older
Race
National origin
Sex
Religion
Disability
Pregnancy
Sexual orientation in some states
Q: What kind of work accommodation must an employer make for an employee with a disability?
A: Both California Law and The Americans with Disabilities Act (ADA) require that an employer make a reasonable accommodation for an employee who's considered a "qualified individual with a disability." The employee must be qualified and able to perform the job for which he's applying. If not, the employer doesn't need to provide reasonable accommodations.
Neither California Law nor the ADA require an employer to create new jobs or displace existing employees from their positions. These laws don't require a violation of other employees' rights under a collective-bargaining agreement or other non-discriminatory policy in order to accommodate a disabled individual. If an employee isn't qualified and able to perform satisfactorily in a position, he won't prevail in proving a duty to accommodate.
Q. What's necessary for me to prove that I have a disability under the Americans With Disabilities Act (ADA)?
A: Under the ADA, you must prove that you're an individual with a disability according to the law. The ADA law defines disability as:
A physical or mental impairment that substantially limits one or more major life activities of the individual
Having a record of such impairment, or
Being regarded as having such an impairment
There are other requirements to proving a case of discrimination under the ADA. Whether you're a "qualified individual" and a victim of illegal discrimination based on your disability are two examples. However, you won't win your case if you're unable to prove you're disabled according to the ADA's definitions.
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the ADA. These amendments went into effect on January 1, 2009. The changes make it easier to prove you're disabled. The amended law stresses that "disability" has a broad meaning.
Q. How does "bona fide occupational qualification" apply to discrimination?
A: There are defenses to discrimination that can be raised by the employer. One defense or exception is known as a bona fide occupational qualification (BFOQ). A BFOQ exists when a specific characteristic is necessary for the performance of the job. For example, age may be a relevant factor in job performance for police officers, firefighters or stunt workers.
Q. Are temporary employees able to file discrimination claims?
A: Although state laws may vary, some federal courts have dealt with this issue. These courts have decided that your rights under Title VII discrimination laws aren't eliminated simply because you're employed through a temporary employment agency.
Whether you're an employee of the company for purposes of Title VII is a question of federal law. The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.
Under the loaned servant doctrine, an employee directed or allowed to perform services for another "special" employer may become its employee while performing those services. In some situations, the employee could actually be considered both an employee of the temporary employment agency and the company the person has been placed with.
Q. I had a bad review, and my employer says I'm going to be fired if I don't shape up. However, I'm pregnant. Am I protected from being fired by my employer?
A: Your employer may not fire you based on the fact you're pregnant. However, you can be fired for other reasons. Being pregnant won't protect you from bad reviews not related to your pregnancy.
Q. Can my employer fire me because of my religious beliefs?
A: Employees are generally protected in the workplace from discrimination because of sincerely held religious beliefs. However, there are exceptions. Courts use a two-step process to evaluate a claim of religious discrimination:
An employee bears the initial burden of demonstrating a "prima facie" case of religious discrimination. He meets this burden if he can show that: (1) He holds a sincere and genuine religious belief that conflicts with an employment requirement. (2) He's informed his employer of the conflict. (3) He's discharged for failing to comply with that conflicting employment requirement.
Once the employee establishes his case, the burden then shifts to the employer to show that it couldn't reasonably accommodate the employee without undue hardship. The reasonableness of an accommodation is determined on a case-by-case basis.
Q. Is it discrimination if the employee next to me has a Bible on her desk?
A: No, this isn't an example of employment discrimination. However, you have the right to ask your employer to make her stop if she tries to push her beliefs on you.
Q. My employer is making me take vacation time for my religious holiday. Isn't that discrimination?
A: It isn't discrimination as long as your employer treats all the employees the same in this situation. It's discrimination if employees of certain religions don't have to use vacation time for religious holidays that don't fall on the company's scheduled holidays.
Q. My employer is a real jerk and yells at me for no reason. Is that discrimination?
A: It's only discrimination if he's singling you out on the basis of a protected characteristic. If he's yelling at everyone, his conduct isn't illegal. Your employer must be lawful, but the law doesn't require that an employer be nice.
Q. What must I prove to win an age discrimination claim?
A: An employee must show that he was discriminated against because of age, namely being over the age of 40. An employee must also show he was qualified to perform the job and was meeting the employer's legitimate work expectations. Proving only some of these requirements won't be sufficient to win.
Q. Does my employer commit discrimination if I get laid off while a younger employee is kept?
A: Your employer may have committed discrimination. If you're 40 or older, you're protected against age discrimination. This means your employer can't lay you off and keep someone younger based on age. However, you can be laid off while a younger employee is retained if he has greater skills. It depends on what factors the employer is using to make the decisions. Age can't be the decisive factor.
Q. What types of damages can I recover for age discrimination?
A: Depending on the facts of the situation, you may be awarded money damages. You may also be reinstated, promoted or placed in a new position.
Punitive damages are sometimes available in employment discrimination cases. These damages, by their very nature, are designed to punish. You would have to prove that your employer acted with "actual malice." In order to support this finding, you must show that the employer's conduct rose to the level of outrageous, flagrant or even criminal. It's a difficult standard to meet, but some employees can meet this standard. Punitive damages will be considered by the court on a case-by-case basis.
CAUTION: DON'T COUNT ON GETTING PUNITIVES IN AN EMPLOYMENT CASE.
Reid vs Google - Barbosa vs IMPCO - Gould vs MSI
The following case held that an employee may not be terminated or disciplined in any manner for mistakenly suing his employer for minimum wages, failure to pay overtime or any other Labor law violations.
Barbosa v. IMPCO Technologies, Inc. (2009)179 Cal.App.4th 1116 , -- Cal.Rptr.3d --
[No. G041070. Fourth Dist., Div. Three. Nov. 30, 2009.]
MANUEL BARBOSA, Plaintiff and Appellant, v. IMPCO TECHNOLOGIES, INC., Defendant and Respondent.
(Superior Court of Orange County, No. 07CC08256, Charles Margines, Judge.)
(Opinion by Sills, P. J., with Rylaarsdam, J., and Moore, J., concurring.)
COUNSEL
Gould & Associates, Aarin A. Zeif and Michael A. Gould for Plaintiff and Appellant.
Brian G. Saylin and Marvin D. Mayer for Defendant and Respondent. [179 Cal.App.4th 1118]
OPINION
SILLS, P. J.-
Manuel Barbosa appeals from the adverse judgment on his complaint for wrongful termination after the superior court granted the motion for nonsuit by defendant IMPCO Technologies. He contends the trial court improperly found there was no public policy protecting a mistaken but good faith claim to overtime wages. We agree. The public policy in favor of the employer's duty to pay overtime wages protects an employee from termination for making a good faith but mistaken claim to overtime. The case must be reversed and remanded for a jury determination of the questions of Barbosa's good faith and IMPCO's reason for his termination.
FACTS
Barbosa started working at IMPCO as a carburetor assembler. At the time of his termination, in June 2007, he worked as a "cell leader" supervising up to eight other carburetor assemblers. He was paid by the hour; sometimes he and the other employees worked overtime.
Barbosa testified that in June 2007, two of the employees in his cell told him they were missing two hours of overtime. After he talked with them, he thought he also was missing two hours of overtime, "[b]ecause some employees coming to me, and they told me they're missing two hour [179 Cal.App.4th 1119] overtime starting Tuesday, [May 29]." The payroll administrator testified Barbosa came to her department on June 8 and told her that "he worked overtime, and four or five of his other employees also worked overtime, and he believe[d] that clock was wrong, and that's maybe the reason they did not get paid overtime." The payroll administrator looked at the time card report and saw that it did not reflect any unpaid overtime. She told Barbosa, "No one has complained about the time clock being wrong. So please make a copy, go to the supervisor, and tell him to approve the overtime."
Barbosa spoke to his supervisor, Jaime DeSantos, and told him he and the other employees in his cell were each missing two hours of overtime. DeSantos said he would approve the missing hours because he "just trusted [Barbosa's] call at that time." The payroll administrator got DeSantos's verbal approval and paid all the employees in Barbosa's cell for two extra hours of overtime.
The payroll administrator thought "something doesn't make sense" because "no one complained about the time clock" and "we never had [a] problem." The company had had occasional problems with a prior time clock system, but a new system was installed at the beginning of May and it had been working correctly with no complaints. So the payroll administrator spoke to the human resources manager, who ran the report from the scans at the security entrance gate and compared that report with the time card report. The gate report showed Barbosa and the others could not have worked the overtime that Barbosa claimed.
One of the employees in Barbosa's cell, Bertha Sattarzadegan, testified Barbosa came to her and said that two other employees in their cell claimed they worked overtime on May 29 and 30. Barbosa told her to review her check to make sure the hours were correct. They had all worked the same hours, and Sattarzadegan did not think they had worked extra overtime. She went to the human resources manager and told her she should not be paid for the extra overtime because she had not worked those hours.
On June 13, Barbosa was called to a meeting with DeSantos, the payroll administrator, the human resources manager, and the operations manager, Arshad Atlaf. Atlaf asked Barbosa if he was sure he and his cell worked overtime as he claimed; Barbosa said yes. Fifteen minutes later, Atlaf met with Barbosa again and showed him the gate report. Barbosa then said, "Well, I confuse. And sorry, you know, it's for the people coming to me and told me that I confuse." [179 Cal.App.4th 1120]
When Barbosa got the paycheck that included the extra overtime, he went to the payroll department and offered to pay the money back. The payroll administrator told him she could not change anything and sent him to human resources, where he again offered to pay the money back. Barbosa was terminated on June 19, 2007. He testified Atlaf told him he was terminated for cheating the company. The payroll administrator testified Barbosa was terminated for falsifying time records. None of the other employees in Barbosa's cell was terminated; the overtime money was "eventually taken back" from them.
After Barbosa rested, IMPCO moved for nonsuit. The trial court initially denied the motion, finding there was a public policy that protected an employee from making a good faith claim for time he believed he had worked. IMPCO then called the human resources manager, who had previously been called on behalf of Barbosa, and she testified in more detail about the first meeting Barbosa had with her, the payroll administrator, DeSantos, and Atlaf. She testified that Atlaf asked Barbosa, "[I]f we have evidence to show that you didn't work the overtime, are you still claiming that you worked the overtime?" Barbosa said yes, without any doubt or hesitancy. Altaf then reminded Barbosa "that the company does not tolerate any stealing from the company. And claiming you worked overtime when you didn't is stealing from the company." Altaf asked again, "Are you sure you worked the overtime?" Barbosa responded yes. After the human resources manager completed her testimony, the court recessed for the weekend.
On Monday morning, the court told counsel it had "strong second thoughts" about its ruling on the nonsuit motion. After extensive discussion with counsel, the court changed its mind and granted the nonsuit. "I will accept plaintiff's version. It still comes down to a question of law. Good faith belief turns out to be wrong; termination thereafter of an at-will employee." The court continued, "We know the employer promptly paid the claim, thereafter, did an investigation, found out [Barbosa] was wrong. [¶] I don't see that there's a public policy that requires the employer to then make a determination whether this was good faith, not good faith, and require[s] the employer then to continue to employ this employee, who from [its] perspective made an unjustified claim for monies."
DISCUSSION
Barbosa concedes he was mistaken about his claim to unpaid overtime but contends the claim was based on a reasonable good faith belief that he was entitled to it. He argues he presented sufficient evidence to support his claim [179 Cal.App.4th 1121] and the jury should be able to decide whether his claim was made in good faith and whether IMPCO terminated him for making that claim or for falsifying time cards. We agree.
After the plaintiff has completed the presentation of his case, the defendant may move for nonsuit. (Code Civ. Proc., § 581c, subd. (a).) The motion shall be granted if the court determines that the plaintiff's evidence is insufficient to support a jury verdict in his favor. (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 746.) But a trial court must proceed with caution when making that determination because a nonsuit precludes the jury's consideration of the case. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.) When we review the granting of a motion for nonsuit, we must view the evidence in the light most favorable to the plaintiff, resolving all presumptions, inferences and doubts in his favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) After having done so, we will not sustain the judgment for the defendant unless it is required as a matter of law. (Ibid.)
We cannot say that IMPCO was entitled to judgment as a matter of law at the end of Barbosa's case. As we explain, public policy protects Barbosa from being terminated for making a good faith claim to overtime. And he presented evidence sufficient to support a jury finding that the claim was made in good faith.
[1] The common law recognizes the right of an at-will employee to bring an action in tort against his employer for termination of employment that violates a fundamental public policy. "In the last half century the rights of employees have not only been proclaimed by a mass of legislation touching upon almost every aspect of the employer-employee relationship, but the courts have likewise evolved certain additional protections at common law. The courts have been sensitive to the need to protect the individual employee from discriminatory exclusion from the opportunity of employment whether it be by the all-powerful union or employer. [Citations.] This development at common law shows that the employer is not so absolute a sovereign of the job that there are not limits to his prerogative." (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178.)
To maintain a wrongful discharge action, however, the employee must have been wronged in a way that affects more than his immediate interest. "Determining whether a claim involves a matter of public policy as opposed [179 Cal.App.4th 1122] to an ordinary dispute between the employer and employee depends on whether the matter affects society at large, whether the policy is sufficiently clear, and whether it is fundamental, substantial, and well established at the time of the termination. [Citation.]" (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708.)
[2] The duty to pay overtime wages is a well-established fundamental public policy affecting the broad public interest. "California courts have long recognized wage and hours laws 'concern not only the health and welfare of the workers themselves, but also the public health and general welfare.' [Citation.] . . . [O]ne purpose of requiring payment of overtime wages is '"'to spread employment throughout the work force by putting financial pressure on the employer . . . .'"' [Citation.] Thus, overtime wages are another example of a public policy fostering society's interest in a stable job market. [Citation.] Furthermore, . . . the Legislature's decision to criminalize certain employer conduct reflects a determination the conduct affects a broad public interest. . . . Under Labor Code section 1199 it is a crime for an employer to fail to pay overtime wages as fixed by the Industrial Welfare Commission." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1148-1149.) If an employer discharges an employee for exercising his right to overtime wages, the employee will have a viable cause of action for wrongful termination. (Ibid.)
An employee's good faith but mistaken belief is protected from employer retaliation in the whistleblowing context. In Collier v. Superior Court (1991) 228 Cal.App.3d 1117, an employee alleged he suspected that other employees were illegally shipping valuable promotional products to unauthorized recipients in exchange for bribes or kickbacks. He reported his suspicions to the employer several times. He was fired shortly thereafter, purportedly for inadequate job performance. The employee alleged a cause of action for wrongful termination, claiming he "actually was terminated in retaliation for checking on, trying to prevent, and reporting possible illegal conduct to" his employer. (Id. at p. 1120-1121.) The trial court sustained the employer's demurrer to the complaint. Reversing, the court of appeal found reports "about reasonably based suspicions of ongoing criminal conduct by coworkers" was in the public interest; thus, the retaliatory discharge of an employee for making such reports was the proper basis for a wrongful termination cause of action. (Id. at p. 1125.)
Citing Collier, the Supreme Court held in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 that a plaintiff's failure to prove an actual violation of law by his employer did not defeat the [179 Cal.App.4th 1123] wrongful termination cause of action. "[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his 'reasonably based suspicions' of illegal activity." (Id. at p. 87.) The Supreme Court's view was underscored by Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, which involved an employee who was fired for reporting perceived health and safety violations in the workplace. The employee brought a wrongful termination action based on Labor Code section 6310, which prohibits employer retaliation against an employee who complains about conditions affecting employee safety or health. "The public policy behind § 6310 is not merely to aid the reporting of actual safety violations . . . ; it is also to prevent retaliation against those who in good faith report working conditions they believe to be unsafe. . . . As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations." (Id. at p. 759.)
It follows that the same result should obtain when an employee exercises his statutory right to overtime wages out of a reasonable good faith belief he is entitled to it, notwithstanding the later discovery that he is wrong. Any other conclusion would open the door to employee intimidation and chill the exercise of statutory rights.
Barbosa presented evidence that he had a reasonable good faith belief he was entitled to overtime. Under the previous time clock system, mistakes in timekeeping had been made; the new system had been in place less than a month. Barbosa's co-workers convinced him the overtime was unpaid, and he in turn convinced DeSantos. He testified he was confused. In fact, the trial court acknowledged Barbosa had presented sufficient evidence to support a good faith belief when it granted the nonsuit.
[3] IMPCO argues Barbosa cannot prove he was terminated for making a claim for overtime, asserting he was terminated for misrepresenting that he worked overtime when he did not. IMPCO contends it is not a violation of public policy to fire an employee for lying and cheating his employer. IMPCO misses the point. Barbosa must prove he had a reasonable good faith belief he was entitled to overtime wages and that IMPCO terminated him because he claimed overtime based on that reasonable good faith belief. If Barbosa proves he had a reasonable good faith belief in his right to overtime, ipso facto he did not attempt to cheat IMPCO. Because Barbosa presented sufficient evidence to support both elements in his case-in-chief, the case should have been allowed to progress to its conclusion and be submitted to a jury. [179 Cal.App.4th 1124]
DISPOSITION
The judgment is reversed and the case is remanded for further proceedings.
Rylaarsdam, J., and Moore, J., concurred.
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The following case held that an employer who may be liable for two violations and two penalties if an employee is deprived of two breaks on the same day or a rest break and lunch break.
UNITED PARCEL SERVICE WAGE AND HOUR CASES. UNITED PARCEL SERVICE, INC., Petitioner, v. SUPERIOR COURT OF LOS ANGELES, Respondent; WILLIAM M. ALLEN et al., Real Parties in Interest. . [192 Cal.App.4th 1045]
INTRODUCTION
Labor Code section 226.7 requires an employer who fails to provide an employee with a meal or rest period to pay that employee one additional hour of pay (or premium payment) "for each work day that the meal or rest period is not provided." fn. 1 The question before us is whether this statute authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day -- one for failure to provide a meal period and another for failure to provide a rest period. We conclude section 226.7 permits up to two premium payments per workday. [192 Cal.App.4th 1043] (2011)
This is a very important case, especially for low wage earners and employees unaware of their rights. Penalties can add up substantially, sometimes coming to more than the actual wage loss.
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Reid v. Google is an age discrimination case, but it has seminal purposes in that the standard to allege any suit involving discrimination can be equally applied, such as disability discrimination, sexual harassment, race discrimination and the like.
Reid v. Google, Inc. (2010)50 Cal.4th 512 , -- Cal.Rptr.3d --; -- P.3d --
[No. S158965. Aug. 5, 2010.]
BRIAN REID, Plaintiff and Appellant, v. GOOGLE, INC., Defendant and Respondent.
(Superior Court of Santa Clara County, No. CV023646, William J. Elfving, Judge.)
(The Court of Appeal, Sixth Dist., No. H029602, 155 Cal.App.4th 1342.)
(Opinion by Chin, J. expressing the unanimous view of the court.)
COUNSEL
Duane Morris, Barry L. Bunshoft, Ray L. Wong, Paul J. Killion, Lorraine P. Ocheltree, Eden E. Anderson and Allegra A. Jones for Plaintiff and Appellant.
Charlotte E. Fishman for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Thomas W. Osborne, Melvin Radowitz and Barbara A. Jones for AARP as Amicus Curiae on behalf of Plaintiff and Appellant.
Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez, Marina C. Tsatalis, Amy K. Todd, Marvin Dunson III, Koray J. Bulut, Elizabeth C. Tippett, Jeanna Steele, Gary M. Gansle; Paul, Hastings, Janofsky & Walker and Paul W. Cane, Jr., for Defendant and Respondent.
Greines, Martin, Stein & Richland and Robert A. Olson for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendant and Respondent.
Orrick, Herrington & Sutcliffe, Gary S. Siniscalco, Patricia K. Gillette, Greg J. Richardson and Lynne C. Hermle for Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendant and Respondent.
Jonathan B. Steiner, Jay-Allen Eisen, Jon B. Eisenberg, Dennis A. Fischer, Steven L. Mayer, Robert A. Olson, Douglas R. Young; Greines, Martin, Stein & Richland and Robin Meadow for California Academy of Appellate Lawyers as Amicus Curiae. [50 Cal.4th 516]
OPINION
CHIN, J.-
Plaintiff Brian Reid filed an age discrimination lawsuit against his former employer, Google, Inc. The trial court granted Google's summary judgment motion relating to plaintiff's claims. The Court of Appeal reversed.
[1] In this case, we decide two issues. First, does a trial court's failure to rule on a party's evidentiary objections relating to a summary judgment motion waive the objections on appeal? Second, should California courts follow the federal courts in adopting the "stray remarks doctrine" in employment discrimination cases? Under this doctrine, statements that non-decision-makers make or that decision makers make outside of the decisional process are deemed "stray," and they are irrelevant and insufficient to avoid summary judgment.
In this case, the Court of Appeal found that the trial court's failure to rule expressly on evidentiary objections did not waive those objections on appeal. Specifically, it ruled that Google's filing of written evidentiary objections before the summary judgment hearing was sufficient to preserve those [50 Cal.4th 517] objections on appeal. Accordingly, it reviewed Google's evidentiary objections on the merits. The Court of Appeal further refused to apply the stray remarks doctrine to exclude alleged discriminatory statements that Reid's supervisors and coworkers made. In reversing the trial court's grant of Google's summary judgment motion, the Court of Appeal considered those alleged statements and other evidence Reid presented in opposition to the motion.
We agree with the Court of Appeal's conclusions. Regarding the waiver issue, the Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google's filing of written evidentiary objections before the summary judgment hearing preserved them on appeal. (Code Civ. Proc., § 437c, subds. (b)(5), (d).) fn. 1 After a party objects to evidence, the trial court must then rule on those objections. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal. Regarding the stray remarks issue, the Court of Appeal also correctly determined that application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results.
I. FACTUAL AND PROCEDURAL HISTORY
Reid worked at Google between June 2002 and February 2004. Google's vice-president of engineering, Wayne Rosing (then age 55) hired Reid (then age 52) as director of operations and director of engineering. Reid has a Ph.D. in computer science and is a former associate professor of electrical engineering at Stanford University.
In addition to Rosing, Reid also interacted with other high-level employees, including chief executive officer (CEO) Eric Schmidt (then age 47), vice-president of engineering operations Urs Hölzle (then age 38), and founders Sergey Brin (then age 28), and Larry Page (then age 29). Reid reported to Rosing and at times to Hölzle.
In a review of Reid's first year's job performance (his only written performance review while employed at Google), Rosing described Reid as having "an extraordinarily broad range of knowledge concerning Operations, Engineering in general and an aptitude and orientation towards operational and IT issues." Rosing noted that Reid "project[ed] confidence when dealing with fast changing situations," "ha[d] an excellent attitude about what 'OPS' and 'Support' mean," and was "very intelligent," "creative," "a terrific [50 Cal.4th 518] problem solver," and that the "vast majority of Ops [ran] great." Rosing gave Reid a performance rating indicating he "consistently [met] expectations."
In Reid's performance review, Rosing commented: "Adapting to Google culture is the primary task for the first year here . . . . [¶] . . . [¶] Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment." Reid received bonuses from February 2003 to February 2004, including stock options for 12,750 shares.
Reid alleged that Hölzle and other employees made derogatory age-related remarks to Reid while he was employed at Google. According to Reid, Hölzle told Reid 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 "lack[ed] energy." Hölzle allegedly made age-related comments to Reid "every few weeks." Other coworkers called Reid an "old man," an "old guy," and an "old fuddy-duddy," told him his knowledge was ancient, and joked that Reid's CD (compact disc) jewel case office placard should be an "LP" instead of a "CD."
In September 2003, cofounder Brin sent an e-mail to several executives commenting about Google's payroll: "We should avoid the tendency towards bloat here particularly with highly paid individuals." Rosing responded, "Excellent memo and very timely . . . . Let me disclose what I am up to organizationally . . . . We are looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation. . . ."
In October 2003, Rosing removed Reid from the director of operations position, and relieved him of his responsibilities as director of engineering, though he was allowed to retain the title. Hölzle, 15 years younger than Reid, assumed Reid's position as director of operations, and Douglas Merrill, 20 years younger than Reid, took over his other duties. Google asked Reid to develop and implement an in-house graduate degree program ("Graduate Degree Program") and an undergraduate college recruitment program ("Google Scholar Program"). The Graduate Degree Program was aimed at retaining engineers by allowing them to attend courses that Carnegie Mellon University professors taught at Google and to obtain master's degrees in engineering. According to Reid, Google's CEO, Schmidt, assured Reid that the graduate program was important and would last at least five years. But Reid was given no budget or staff to support it.
In January 2004, Brin, Page, Rosing, and Hölzle collectively decided not to pay Reid a bonus for 2003. CEO Schmidt sent an e-mail to Rosing asking for "a proposal from [him] . . . on getting [Reid] out . . . ." On February 7, 2004, [50 Cal.4th 519] Rosing responded to Schmidt, expressing concern about the decision not to pay Reid a bonus. He stated that he was "having second thoughts about the full zero out of the $14K bonus [versus] treating it consistent with all similarly situated performers." Rosing suggested that Reid should receive a bonus of $11,300, in addition to a severance package, to avoid "a judge concluding we acted harshly."
On February 13, 2004, Rosing told Reid the engineering department no longer had a place for him. Google asserts Rosing told Reid that the Graduate Degree Program was being eliminated and that it terminated Reid because of job elimination and poor performance. On the other hand, Reid maintains he was given no reason for his termination other than lack of "cultural fit," and he was told the graduate program would continue and his termination was not performance based.
After Reid asked if he could look for a job elsewhere in the company, Rosing encouraged him to apply for positions with other departments. However, e-mails circulating among various department heads indicated that no other department intended to hire Reid. Vice-president of business operations Shona Brown wrote to Rosing and human resources director Stacy Sullivan, asserting, "you should make sure I am appropriately prepped. My line at the moment is that there is no role for him in the HR organization." Sullivan responded: "Seems [Reid's] first interest is to continue his work on the college programs he's been working on . . . . He'll explore that option first with both of you . . . . I propose [Brown] . . . meets with [Reid] [on February 24] and lets him know there's no role [for him] in her org . . . . I've talked with [chief financial officer George] Reyes live, he will not have an option for [Reid] . . . . [T]his is The Company Decision." Sullivan concluded: "We'll all agree on the job elimination angle . . . ."
On February 24, 2004, Reid met with chief financial officer Reyes, who told him no positions were open in Reyes's department. Reid then met with Brown, who stated no positions were available for him in her department. According to Reid, Brown commented that he was not a "cultural fit" at Google. On February 27, Reid left Google with a two-month severance package.
On July 20, 2004, Reid sued Google. The complaint alleged 12 causes of action, including claims for age discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.); wrongful termination in violation of public policy; failure to prevent discrimination; and both negligent and intentional infliction of emotional [50 Cal.4th 520] distress. Reid sought injunctive relief, disgorgement of profits, restitution of lost stock options, and attorney fees and costs.
Google demurred and brought motions to strike as to various causes of action, which were granted in part. Google then filed a motion for summary judgment as to Reid's remaining causes of action (those specified above), based on claims of age discrimination by Google. Although Google filed written objections to evidence Reid submitted, the trial court did not rule specifically on those objections. Instead, it stated it was relying only "on competent and admissible evidence."
The trial court granted the summary judgment motion. It found that Google's evidence, while "not sufficient to prove that Plaintiff cannot establish a prima facie case of age discrimination," "is sufficient to prove that [Google] had legitimate nondiscriminatory reasons for . . . terminating [plaintiff's] employment in February 2004." fn. 2 The court further found that Reid's evidence was "not sufficient to raise a permissible inference that in fact, [Google] considered Plaintiff's age as a motivating factor in . . . terminating his employment." The trial court noted that, because Reid had failed to raise a triable issue of material fact as to whether Google's reasons were pretextual, his age discrimination claims should be dismissed. (§ 437c, subd. (c) ["motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"].)
As relevant here, the Court of Appeal, in a published opinion, reversed the trial court's granting of Google's summary judgment motion relating to Reid's causes of action for age discrimination under FEHA and the UCL, [50 Cal.4th 521] wrongful termination, failure to prevent discrimination, and both negligent and intentional infliction of emotional distress. The Court of Appeal found that undisputed evidence supported both a prima facie case of age discrimination and a legitimate, nondiscriminatory reason for Reid's termination, i.e., the elimination of the Graduate Degree Program.
However, on the issue of whether the stated reason for termination was pretextual, the Court of Appeal held that evidence Reid had presented raised a triable issue of material fact. Reid offered statistical evidence of discrimination at Google, discriminatory comments that coworkers and decision makers made, and evidence that Google demoted Reid to a nonviable position before terminating him and advanced changing rationales for his termination. Although Google filed written objections to Reid's evidence and raised its objections at the hearing, the trial court did not expressly rule on them. The Court of Appeal held that the trial court's failure to rule on the objections did not waive them on appeal. The Court of Appeal considered and rejected Google's challenges to the methodology Reid's statistical expert used and Google's argument that alleged ageist comments by Google decision makers and Reid's coworkers were stray remarks and therefore insufficient proof of pretext. The court explained that judgments regarding such discriminatory comments "must be made on a case-by-case basis in light of the entire record." The court concluded that, because Reid's evidence and inferences of discrimination raised a triable issue of fact as to the existence of pretext, the trial court erred in granting the summary judgment motion.
We granted Google's petition for review to determine: (1) whether evidentiary objections on which the trial court has 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.
II. DISCUSSION
A. Evidentiary Objections Not Ruled on at Summary Judgment
We first address the issue whether evidentiary objections are preserved on appeal when the trial court does not expressly rule on them when it decides a summary judgment motion. Section 437c, governing summary judgment motions, contains two waiver provisions relating to evidentiary objections.
Section 437c, subdivision (b)(5) states that: "Evidentiary objections not made at the hearing shall be deemed waived." fn. 3 [50 Cal.4th 522]
Section 437c, subdivision (d) states that: "Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived."
In this case, Google submitted 31 pages of written objections to Reid's evidence. For the most part, Google raised its objections at the hearing by incorporating those written objections. In the trial court's written order granting summary judgment, it did not rule specifically on Google's evidentiary objections, but stated it was relying only on "competent and admissible evidence pursuant to Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419-1429."
1. Background: Biljac and the Waiver Rule
In Biljac, plaintiffs filed voluminous evidentiary objections and asked the trial court to make written rulings on all of them. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419 (Biljac).) The trial court declined to render formal rulings, finding that it would be " 'a horrendous, incredibly time-consuming task' " to rule individually on each piece of evidence and that such rulings "would serve very little useful purpose." (Id. at p. 1419, fn. 3.) Plaintiffs argued failure to rule was reversible error, but the Court of Appeal disagreed. It held that express evidentiary rulings were unnecessary because appellate review of a summary judgment determination was de novo, and "the parties remain[ed] free to press their admissibility arguments on appeal, the same as they did in the trial court." (Id. at p. 1419.) Thus, under Biljac, a trial court may decline to rule on specific evidentiary objections so long as it states it relied only on "competent and admissible evidence" in ruling on the summary judgment motion. (Id. at p. 1424.)
A few years later, we applied waiver principles to evidentiary objections at the summary judgment stage without mentioning Biljac. In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann M.), plaintiff filed a civil complaint against the owners of a shopping center after she was raped at her place of employment, located in the shopping center. We noted that "[i]n the trial court, defendants made a [50 Cal.4th 523] series of objections to evidence submitted by [plaintiff] in opposition to the summary judgment motion," but "[t]he trial court did not rule on the objections." (Id. at p. 670, fn. 1.) We held that "[b]ecause counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. (Code Civ. Proc., § 437c, subds. (b) & (c); Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1301, fn. 4 [284 Cal.Rptr. 53]; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540 [270 Cal.Rptr. 198]; Haskell v. Carli (1987) 195 Cal.App.3d 124, 129-132 [240 Cal.Rptr. 439].) Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record." (Ibid.)
Again without mentioning Biljac, we affirmed the Ann M. waiver principles in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, footnote 1 (Sharon P.), disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, footnote 19. In Sharon P., plaintiff sued the owner of the parking garage of her work building after she was attacked and sexually assaulted there. In finding waiver, we stated: "[Defendant] filed objections to the declarations of plaintiff and her counsel in the trial court, but the record contains no rulings on those objections. We therefore deem the objections waived and view plaintiff's evidence as having been admitted in evidence as part of the record for purposes of the appeal. (Ann M., supra, 6 Cal.4th at p. 670, fn. 1; Code Civ. Proc., § 437c, subds. (b), (c).)" (Sharon P., supra, 21 Cal.4th at pp. 1186-1187, fn. 1.)
Following Ann M. and Sharon P., the same court that decided Biljac disapproved the Biljac procedure. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566 (Demps).) In Demps, the trial court granted summary judgment in favor of defendant employer against plaintiff's allegations of discrimination. At the summary judgment hearing, defense counsel expressly requested that the court rule on evidentiary objections previously filed by defendant. In response, the court stated it was " 'following Biljac and [was] only considering the relevant and pertinent evidence.' " (Id. at p. 574.) The Court of Appeal affirmed summary judgment, but rejected its previous holding in Biljac, explaining that "[w]e read Ann M., supra, 6 Cal.4th 666, and Sharon P., supra, 21 Cal.4th 1181, as having impliedly overruled Biljac and establishing that trial courts must rule on evidentiary objections in [50 Cal.4th 524] the summary judgment context or the objections will be deemed waived. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)" (Demps, supra, 149 Cal.App.4th at p. 578.) The Court of Appeal noted that the Biljac procedure does not fulfill a trial court's obligation to rule on evidentiary objections in the summary judgment setting. It held that "a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and if it does not, the objections are deemed waived and the objected-to evidence included in the record." (Ibid.)
Other Courts of Appeal have either expressly or impliedly criticized the Biljac approach, finding it contravenes a trial court's duty to rule on evidentiary objections. (Cheviot Vista Homeowners Assn. v. State Farm Fire & Casualty Co. (2006) 143 Cal.App.4th 1486, 1500, fn. 9 [Biljac procedure "is not an acceptable alternative to a ruling on the objections"]; Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623 [Biljac was an "unacceptable circumvention of the court's obligation to rule on the evidentiary objections presented"], disapproved on other grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 973; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235 [Biljac "fosters the [legal] fiction that a trial court's failure to rule on evidentiary objections means the trial court has considered only admissible evidence"]; cf. Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 479 ["given the nature and volume of the objections, the trial court did not abuse its discretion" in issuing a Biljac ruling].)
Courts of Appeal have taken different approaches in resolving Biljac issues in the face of our waiver rule. Some courts have found waiver. (See, e.g., Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140-141; Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at pp. 623-624; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736.) Other courts have addressed the objections on the merits despite the lack of a trial court ruling. (See, e.g., Tilley v. CZ Master Assn., supra, 131 Cal.App.4th at p. 479; Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 238; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 864.)
In City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 783-785, the Court of Appeal applied what trial attorneys jocularly refer to as a "stamp-and-scream" rule and held that written evidentiary objections not ruled on by the trial court were preserved for appellate review where counsel twice orally requested a ruling on those written objections at the summary judgment hearing, thus presenting an exception to the Ann M. and Sharon P. waiver rule. (See also Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 624, fn. 7 [allowing exception to waiver rule "when counsel specifically requests a ruling on evidentiary objections and the trial court nonetheless declines to rule"].) In Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, [50 Cal.4th 525] the Court of Appeal issued a writ of mandate commanding the trial court to (1) vacate its order denying summary judgment, (2) rule on all evidentiary objections, and (3) reconsider the summary judgment motion in light of its rulings on the evidentiary objections. (Id. at p. 643.)
2. The Court of Appeal's Ruling on the Trial Court's Invocation of the Biljac Procedure in This Case.
The Court of Appeal commented that "we believe the Biljac decision was substantially correct, and was surely more nearly correct than its critics have been." The court reasoned that section 437c does not require courts to rule expressly on evidentiary objections; it only requires express objections to be made.
Also, without mentioning Ann M. and Sharon P., the Court of Appeal rejected the waiver rule. It held that even if section 437c could be read to require express rulings, "it does not mandate that, in the absence of express rulings the underlying objections are forfeited on appeal." Criticizing the waiver rule, the Court of Appeal commented, "The fact is that when a party properly brings an objection to the trial court's attention -- i.e., when he files it in proper form -- he has done everything he can or should be required to do to bring about a ruling. The fact that a trial court does not expressly rule on such objection should not be interpreted as a waiver of the party's objection."
Instead, the Court of Appeal concluded that, in the absence of express trial court rulings, the parties may still raise evidentiary issues on appeal. It explained that if the trial court fails to rule expressly on evidentiary objections relating to a summary judgment motion, the court's silence "effects an implied overruling of all objections, which are therefore preserved for appeal. The entire record is thus presumptively before the appellate court, and the burden is on the objecting party to show that evidence presumptively considered by the trial court should instead be disregarded in determining the propriety of the order on the merits."
The Court of Appeal held that Google's written objections to Reid's evidence were not waived. The court proceeded to decide the merits of the evidentiary objections Google raised on appeal, i.e., whether Reid's statistical and stray remarks evidence was admissible.
3. To Preserve Evidentiary Issues on Appeal, Litigants Must Object to Specific Evidence in Writing Before the Summary Judgment Hearing or Orally at the Hearing, as Specified in the California Rules of Court
Google claims that because the trial court issued a Biljac ruling, the waiver rule does not apply and its written evidentiary objections were preserved on [50 Cal.4th 526] appeal, even though the trial court failed to rule on them expressly. Google argues that Ann M. and Sharon P. are distinguishable because we did not address the meaning of a Biljac ruling in those cases and focused instead on the trial court's complete failure to rule on objections. Reid contends that whether we deem Google's objections to be waived or preserved on appeal, the Court of Appeal still correctly determined the merits of Google's evidentiary claims on appeal. The Court of Appeal correctly found that the trial court erred in granting summary judgment because Reid's proffered admissible evidence presented triable issues of material fact. Reid comments that to the extent we seek his "input" on the waiver issue, he questions the fairness of absolutely barring a litigant from raising an evidentiary issue on appeal when the preclusion is through no fault of its own. He argues that the Court of Appeal's "presumed overruled" approach is preferable: "It achieves the goals of maximizing trial court discretion and avoiding administrative burden, while allowing a safety valve for extreme situations."
[2] We agree that the trial court's failure to rule expressly on any of Google's evidentiary objections did not waive them on appeal. As noted above, "[e]videntiary objections not made at the hearing shall be deemed waived." (§ 437c, subd. (b)(5); see id., subd. (d).) Section 437c defines "waiver" in terms of a party's failure to raise evidentiary objections at the hearing; it does not depend on whether or not the trial court expressly rules on the objections. Nevertheless, in Sharon P., we found waiver under section 437c because we seemed to have focused on the trial court's failure to rule. (Sharon P., supra, 21 Cal.4th at pp. 1186-1187, fn. 1 ["[defendant] filed objections to the declarations of plaintiff and her counsel in the trial court, but the record contains no rulings on those objections"].) In Ann M. supra, 6 Cal.4th at page 670, footnote 1 (the only case Sharon P. cites), we relied on several cases in finding waiver, including Golden West Baseball Co. v. Talley, supra, 232 Cal.App.3d at page 1301, footnote 4.
[3] In Golden West, the court found that, because the trial court failed to rule on evidentiary objections, those objections were considered to have been waived. (Golden West Baseball Co. v. Talley, supra, 232 Cal.App.3d at p.1301, fn. 4.) Instead of relying on section 437c, subdivision (b)(5), the court relied on section 437c, subdivision (c). That subdivision states that the trial court must consider all evidence unless an objection to it has been raised and sustained. (§ 437c, subd. (c).) fn. 4 It follows that the reviewing court must [50 Cal.4th 527] conclude the trial court considered any evidence to which it did not expressly sustain an objection. However, the subdivision does not mandate that, in the absence of express rulings, the underlying objections are waived on appeal. Thus, evidentiary objections made "at the hearing shall [not] be deemed waived" (§ 437c, subd. (b)(5)), even if the trial court fails to rule on them expressly. fn. 5
[4] The question remains as to how and when evidentiary objections must be made to be deemed made "at the hearing," under section 437c, subdivisions (b)(5) and (d). Because this determination involves a question of statutory construction, our review is de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) "Under settled canons of statutory construction, in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them 'their usual and ordinary meaning.' [Citation.] 'The statute's plain meaning controls the court's interpretation unless its words are ambiguous.' [Citations.] 'If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.]" (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.)
One court found that written evidentiary objections filed with the court had been made "at the hearing," even though the objecting party had not raised them at the summary judgment hearing. (Tilley v. CZ Master Assn., supra, 131 Cal.App.4th at p. 479 ["section 437c, subdivision (b)(5) requires the objections to be made 'at the hearing' but not orally"]; see also Sambrano v. City of San Diego, supra, 94 Cal.App.4th at pp. 232, 234, 237-238 [merits of objection addressed where preserved in written submissions].) However, other courts have determined that written objections to summary judgment evidence were insufficient to preserve them on appeal because the objecting party failed to request a ruling on the evidentiary objections "at the hearing." (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369; Jones v. P.S. Development Company, Inc. (2008) 166 Cal.App.4th 707, 711, fn. 4; Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710; Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1484; Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 624, fn. 7; Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 924, fn. 2; Howell v. State Farm Fire & Cas. Co. (1990) 218 Cal.App.3d 1446, 1459, fn. 9). [50 Cal.4th 528] Yet another court held that evidentiary objections relating to a summary judgment motion may be raised either in writing before the hearing or orally at the hearing. (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.)
Because section 437c is ambiguous as to how and when evidentiary objections must be made to preserve them on appeal, we turn to the statute's purpose and legislative history.
a. Legislative History of Section 437c
Our current summary judgment statute was enacted in 1973. (Stats. 1973, ch. 366, § 2, p. 807; Haskell v. Carli, supra, 195 Cal.App.3d at p. 130.) The pre-1973 version of section 437c permitted summary judgment " 'in the discretion of the court.' " (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511.) In revising section 437c, the Legislature intended "to abrogate any real discretion the trial court had in granting the motion. [Citation.]" (Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d at p. 1512, italics added.)
Before significant amendments were made in 1980, the trial court was to consider all admissible evidence set forth in the papers supporting or opposing the motion in ruling on the summary judgment motion. (Stats. 1978, ch. 949, § 2, p. 2930.) Also, waiver rules did not apply in summary judgment proceedings. (Haskell v. Carli, supra, 195 Cal.App.3d at p. 129.)
1) 1980 Amendment
In 1980, the Legislature passed Senate Bill No. 1200 (1979-1980 Reg. Sess.) which added the following provisions to section 437c: (1) "[e]videntiary objections, not raised here in writing or orally at the hearing, shall be deemed waived;" and (2) "[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Former § 437c, as amended by Stats. 1980, ch. 57, § 1, p. 152.)
The purpose of the bill was "to facilitate speedy resolution of summary judgment motions by requiring the parties to make timely evidentiary objections to summary judgment papers before the [trial] court." (Assem. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) Mar. 6, 1980.) It "would require parties to raise all evidentiary objections at the time of the hearing on the motion for summary judgment, in writing or [50 Cal.4th 529] orally, or suffer waiver of such objections." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, p. 3.)
The California Judges Association sponsored the bill: (1) to invalidate several Court of Appeal decisions that had made it "possible for parties to raise on appeal for the first time evidentiary objections to the summary judgment papers" and (2) to apply the Evidence Code section 353 waiver rule -- prohibiting reversal for the erroneous admission of evidence unless an objection was timely made -- in the summary judgment context. (Judge Philip M. Saeta, letter to Sen. Com. on Judiciary re Sen. Bill No. 1200 (1979-1980 Reg. Sess.) Dec. 21, 1979 (Judge Saeta letter); Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, pp. 2-3.)
Additionally, the bill eliminated the "requirement that the evidence considered by the court be admissible, and . . . instead allow[ed] the court to consider all evidence set forth in the papers, except that to which objections ha[d] been sustained." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, p. 4.) Judge Saeta's letter maintained that the proposed amendments would "force the opposing parties to go through the moving papers and make those objections which are deemed to be applicable and have the trial judge rule on those objections just like the situation at trial. . . . Then on any appeal the merits of the [summary judgment] ruling can be addressed without going into minor evidentiary matters not deemed important enough to be raised at the trial level." (Judge Saeta letter, supra, at p. 2.)
2) 1990 Amendment
Prior to the 1990 amendment, objections "not made either in writing or orally at the hearing" were deemed waived. fn. 6 (Former § 437c, subd. (b) as amended by Stats. 1984, ch. 171, § 1, p. 545, italics added.) As introduced, Senate Bill No. 2594 (1989-1990 Reg. Sess.) proposed the following change to section 437c, subdivision (b): "Evidentiary objections not made in writing at least two court days prior to the hearing shall be deemed waived." (Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as introduced Mar. 1, 1990, p. 2, italics added.) The Legislature then changed this language to its current form, providing that, "Evidentiary objections not made at the hearing shall be deemed waived." (§ 437c, subd. (b), italics added, as [50 Cal.4th 530] amended by Stats. 1990, ch. 1561, § 2, p. 7331, enacting Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990.)
Thus, the Legislature deleted the proposed language that exempted only written objections from waiver and deleted the then existing statutory language "either in writing or orally," so that the statute required evidentiary objections to be made "at the hearing" to avoid waiver. By removing the words "in writing" and "orally," we can reasonably infer that the Legislature intended not to restrict the manner in which objections had to be presented, as had been proposed, leaving the statute neutral regarding the objections' proper form. The 1990 amendment simply required that objections be presented to the trial court, rather than being made for the first time on appeal.
Legislative history supports this conclusion. One purpose of the 1990 amendment was to redefine what could be resolved on a motion for summary adjudication of issues. The Legislature expressly declared that: "It is also the intent of this legislation to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense." (Stats. 1990, ch. 1561, § 1, p. 7330.) A second purpose was to "overturn[]" two Court of Appeal cases holding that the competency of witnesses could be challenged for the first time on appeal. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended Aug. 22, 1990, p. 2.) In that regard, the Legislature expressly declared: "It is the intent of this legislation to provide that all objections to the form and substance of the moving and opposing papers shall be first made in the trial court and not on appeal by the parties or by the appellate court and to expressly overrule the rules stated in Witchell v. DeKorne [(1986)] 179 Cal.App.3d 965 and Zuckerman v. Pacific Savings Bank [(1986)] 187 Cal.App.3d 1394." (Stats. 1990, ch. 1561, § 1, pp. 7329-7330.) The overall purpose of the bill was "to make the summary judgment procedure more efficient and to reduce the opportunity for abuse of the procedure." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990, p. 2; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended Aug. 22, 1990, p. 2; see also Judicial Council of Cal., letter to Governor Deukmejian re Sen. Bill No. 2594 (1989-1990 Reg. Sess.) Sept. 17, 1990 [supporting the bill's requirement that parties raise evidentiary objections in the trial court because it would save time for appellate courts and simplify civil proceedings].)
In accord with the Legislature's second purpose, it also amended section 437c to add the following sentence to subdivision (d): "Any objections based on the failure to comply with the requirements of this subdivision [regarding the competence of declarants] shall be made at the hearing or shall be [50 Cal.4th 531] deemed waived." (Stats. 1990, ch. 1561, § 2, p. 7331.) And, as mentioned above, the Legislature at the same time deleted the phrase "either in writing or orally" from section 437c, subdivision (b), to provide that, "Evidentiary objections not made at the hearing shall be deemed waived."
The 1990 amendment of section 437c by its terms required that objections be made in the trial court to avoid waiver, but did not designate how those objections needed to be presented. Because the statute and legislative history are silent as to the specific manner in which evidentiary objections must be made, we presume that the Legislature intended no changes to the established procedure for making evidentiary objections. Thus, the California Rules of Court govern. (See Cal. Const., art. VI, § 6, subd. (d); Cantillon v. Superior Court (1957) 150 Cal.App.2d 184, 187; see also Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29 [courts may adopt "rules with the force of law" with respect to summary judgment motions].)
At the time of the 1990 amendment of section 437c, California Rules of Court, former rule 343 (current rule 3.1352) explained how and when summary judgment objections were made. The Judicial Council first adopted former rule 343 in 1984. The Rules of Court were renumbered effective January 1, 2007. Substantively the same as when first adopted in 1984, current rule 3.1352 states: "A party desiring to make objections to evidence in the papers on a motion for summary judgment must either: [¶] (1) Submit objections in writing under rule 3.1354; or [¶] (2) Make arrangements for a court reporter to be present at the hearing." As with former rule 343 and current rule 3.1352, both former rule 345 and current rule 3.1354 require written objections to be served and filed before the hearing. (See now Cal. Rules of Court, rule 3.1354(a).) Thus, both before and after section 437c's 1990 amendment, the Rules of Court expressly allowed parties to choose how to record their objections.
[5] At the summary judgment hearing, the parties have the opportunity to persuade the trial court and respond to its inquiries. (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 260.) At that hearing, the court considers the motion, any opposition to the motion, any reply, and all supporting papers submitted before the hearing, as well as arguments and evidentiary objections made at the hearing. (See § 437c, subds. (a), (b)(1)-(4); Cal. Rules of Court, rules 3.1352, 3.1354(a).) Therefore, written evidentiary objections made before the hearing, as well as oral objections made at the hearing are deemed made "at the hearing" under section 437c, subdivisions (b)(5) and (d), so that [50 Cal.4th 532] either method of objection avoids waiver. fn. 7 The trial court must rule expressly on those objections. fn. 8 (See Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at pp. 642-643 [trial courts have a duty to rule on evidentiary objections presented in proper form].) If the trial court fails to rule, the objections are preserved on appeal.
We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical. fn. 9 Trial courts are often faced with "innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become." (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712.) Indeed, the Biljac procedure itself was designed to ease the extreme burden on trial courts when all "too often" "litigants file blunderbuss objections to virtually every item of evidence submitted." (Demps, supra, 149 Cal.App.4th at pp. 578-579, fn. 6; Biljac, supra, 218 Cal.App.3d at p. 1419, fn. 3; see also Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 248, 254 & fn. 3 [employer filed 324 pages of evidentiary objections, consisting of 764 specific objections, which the Court of Appeal characterized as the "poster child" for abusive objections].) To counter that disturbing trend, we encourage parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion. In other words, litigants should focus on the objections that really count. Otherwise, they may face informal reprimands or formal sanctions for engaging in abusive practices. At the very least, at the summary judgment hearing, the parties -- with the trial court's [50 Cal.4th 533] encouragement -- should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion.
b. Application of Waiver Rule
In this case, Google submitted 31 pages of objections, raising more than 175 separate objections to evidence submitted by Reid. At least 50 of the objections were based simply on "relevance." At the summary judgment hearing, Google generally referred to, and asked the court to rule on, all of its previously filed written objections. In a written order, the trial court ruled as follows: "The Court declines to render formal rulings on evidentiary objections. In ruling, the Court relied on competent and admissible evidence pursuant to Biljac Assoc. v. First Interstate Bank[, supra,] 218 Cal.App.3d 1410, 1419-1429."
The Court of Appeal refused to find waiver and explained: "The fact is that when a party properly brings an objection to the trial court's attention -- i.e., when he files it in proper form -- he has done everything he can or should be required to do to bring about a ruling." However, this case proves otherwise. At the summary judgment hearing, Google incorporated by reference its written objections, but also specifically objected to four items of evidence submitted by Reid. Thus, Google had the opportunity to significantly narrow its objections and wisely focused on what it considered to be key pieces of disputed evidence.
Nevertheless, because Google submitted its evidentiary objections in proper form in writing and orally, all of its objections were preserved on appeal. Despite the Court of Appeal's finding that the lack of a trial court ruling does not create waiver, Google claims that the Court of Appeal essentially applied waiver principles. It notes that the Court of Appeal "presumed" that the trial court's Biljac ruling was an implied overruling of its evidentiary objections and that the trial court considered all of the objected-to evidence. Google argues that the Court of Appeal incorrectly interpreted the Biljac ruling as a blanket admission of all objected-to evidence and that its adoption of this "presumed admitted rule" denied Google the opportunity to "squarely appeal issues of admissibility" and obtain a ruling on its objections. Instead, according to Google, adoption of a "presumed sustained rule" is more appropriate under the well-established principle that trial court rulings are construed in favor of affirming the lower court's order. Google asks that we adopt the presumed sustained rule, arguing that "it is more logically consistent to presume that the trial court, in granting summary judgment and issuing a Biljac ruling, implicitly ruled in favor of the prevailing party on all evidentiary objections." [50 Cal.4th 534]
Reid responds that a presumed sustained rule is contrary to the clear wording of section 437c, subdivision (c), that Google overlooks the distinction between waived and presumptively overruled objections, and that the presumed overruled approach taken by the Court of Appeal is supported by the statute. We agree.
Section 437c, subdivision (c) states, in relevant part: "In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Italics added.) Because the trial court here did not sustain any of the objections, let alone make any evidentiary rulings, it was required by section 437c, subdivision (c) to consider all of Reid's evidence. Similarly, "on appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz, supra, 24 Cal.4th at p. 334.) Thus, Google's presumed sustained approach is not supported by the statute.
[6] On the other hand, the Court of Appeal's presumed overruled approach -- whereby it viewed the objectionable evidence as having been admitted into evidence -- is consistent with section 437c, subdivision (c), requiring the trial court to consider all the evidence except that to which objections were made and sustained. Google had a full opportunity to pursue its objections on appeal. Having found that the lack of a ruling does not create waiver, the Court of Appeal held that Google's objections were presumptively overruled, but -- importantly -- were preserved for appeal. Google's contention that there is no distinction between waived objections and those presumptively overruled overlooks that waived objections will not be considered on appeal (Ann M., supra, 6 Cal.4th at p. 670, fn. 1), while presumptively overruled objections can still be raised on appeal, with the burden on the objector to renew the objections in the appellate court. fn. 10 Thus, the Court of Appeal correctly determined that if the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.
Here, the Court of Appeal considered Google's evidentiary objections on the merits, in particular the admissibility of the statistical evidence and of certain alleged ageist comments under the stray remarks rule. While Google [50 Cal.4th 535] may disagree with the Court of Appeal's resolution of its evidentiary claims, nevertheless, it has not been prejudiced by any application of a waiver rule.
Alternatively, Google asks that the matter be remanded to the trial court for rulings on its evidentiary objections. It claims that the Court of Appeal's attempt to cure the trial court's ambiguous Biljac ruling by deciding evidentiary issues for the first time "improperly seized the trial court's duties of determining the parameters of the admissible evidentiary record," and "breache[d] the review limitations placed upon it by the abuse of discretion standard." On the other hand, Reid argues that the Court of Appeal correctly used a de novo review standard since the trial court made no evidentiary rulings, and that a remand is not necessary and would only result in delay. Agreeing with the Court of Appeal, both Reid and amici curiae advocate for the application of a de novo review standard in general, even where the trial court made evidentiary rulings. The Court of Appeal explained: "Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors."
We agree in part with Reid. First, because there was no exercise of trial court discretion, the Court of Appeal had no occasion to determine whether the trial court abused it. Second, Google expressly invited the Court of Appeal to address its evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the general standard of review applicable to summary judgment rulings, that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.) Thus, we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.
Finally, because Google did not ask the Court of Appeal to remand the matter to the trial court for evidentiary rulings, its remand request comes too late. In any event, no purpose would be served in returning this matter to the trial court to re-review objections already considered by the Court of Appeal.
B. Stray Remarks Doctrine
Google contends that the Court of Appeal should have applied the stray remarks doctrine, i.e., should have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks, and disregarded them in reviewing the merits of the summary judgment motion. Specifically, Google [50 Cal.4th 536] claims that the Court of Appeal erred in considering: (1) Hölzle's statements that Reid was "slow," "fuzzy," "sluggish," lethargic," did not "display a sense of urgency," and "lack[ed] energy" and his ideas were "obsolete" and "too old to matter"; (2) Rosing's statement to Reid at or around the time of his termination that he was not a "cultural fit"; and (3) coworkers' comments referring to Reid as an "old man" and "old fuddy-duddy," and a coworker's joke that his office placard should be an "LP" instead of a "CD." Google argues that the statements were irrelevant because they were made by non-decision-makers, were ambiguous, and were unrelated to the adverse employment decision. fn. 11
1. Origin and Evolution of the Stray Remarks Doctrine
The term "stray remarks" first appeared in a concurring opinion by Justice O'Connor in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 276 (Price Waterhouse). In that case, the plaintiff, a senior manager at a nationwide professional accounting firm, sued her employer for sex discrimination when it refused to repropose her for partnership. (Id. at pp. 231-232.) In her concurrence, Justice O'Connor stated that "stray remarks" -- "statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" -- do not constitute direct evidence of decision makers' "substantial negative reliance on an illegitimate criterion in reaching their decision." (Id. at p. 277.) Unlike direct evidence of discriminatory animus, stray remarks, "standing alone," do not suffice to shift the burden of persuasion to the employer; decision makers may make neutral, nondiscriminatory comments about an employee's race or gender, such as referencing a " 'lady candidate.' " (Ibid.) However, Justice O'Connor explained that stray remarks can be probative of discrimination, and ultimately concluded that the plaintiff provided the requisite direct evidence that decision makers had unlawfully based their decision on gender. (Ibid.) Such evidence included remarks by a partner suggesting she should " 'walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry' " to improve her chances for partnership, and comments by other partners describing the plaintiff as " 'macho' " and advising her to take " 'a course at charm school.' " (Id. at 235.)
Since Price Waterhouse, federal circuit courts have adopted and notably expanded Justice O'Connor's analysis in employment discrimination cases to create what has become known as the stray remarks doctrine. (See Reinsmith, [50 Cal.4th 537] Proving an Employer's Intent: Disparate Treatment Discrimination and the Stray Remarks Doctrine After Reeves v. Sanderson Plumbing Products (2002) 55 Vand. L.Rev. 219, 244-245.) Under this doctrine, federal circuit courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, and such stray remarks are insufficient to withstand summary judgment. (See, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc. (4th Cir. 2004) 354 F.3d 277, 283, 295-296 (in bank) [coworker's comments that plaintiff was a " 'useless old lady' " who needed to retire, was a " 'troubled old lady,' " and was a " 'damn woman' " did not influence the decisional process and, therefore, were not relevant]; Waggoner v. City of Garland (5th Cir. 1994) 987 F.2d 1160, 1166 [direct supervisor's statements that plaintiff was an "old fart" and that a younger person could do faster work deemed "a mere 'stray remark' . . . insufficient to establish age discrimination"].) Moreover, federal circuit courts have treated ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus. (See, e.g., Fortier v. Ameritech Mobile Comm., Inc. (7th Cir. 1998) 161 F.3d 1106, 1108, 1113 [supervisor's comments that she wanted "new blood," a "quick study," and someone with "a lot of energy" did not reflect age bias]; Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705 [supervisor's comment that " '[w]e don't necessarily like grey hair' " was "uttered in an ambivalent manner" and therefore "not tied directly to" plaintiff's termination].)
In California, several appellate cases have analyzed certain remarks in terms of whether they were stray. However, none of these cases explicitly adopted or addressed the stray remarks doctrine. Instead, they considered the remarks in totality with the other circumstances of the case. Three of these cases affirmed summary judgment for the employer, though their outcomes turned more on each plaintiff's failure to produce prima facie evidence of discrimination than on application of a strict stray remarks doctrine. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 798, 801 [although supervisor had commented plaintiff was "getting too old," employer subsequently established plaintiff lacked computer and management skills necessary for restructured company operations]; Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1160 [plaintiff's allegation of anti-Semitic animus rested on "an isolated remark by a person not involved in the adverse employment decision"]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 801-803, 809 (Horn) [plaintiff's allegation of age bias supported only by non-decisionmaking manager's single remark that "this is 1994, haven't you ever heard of a fax before?"].) A fourth case affirmed summary judgment for the employer, but turned entirely on the plaintiff's failure to establish a prima facie case of pregnancy discrimination; the plaintiff failed to make the requisite showing that her supervisor knew she was pregnant or that she was [50 Cal.4th 538] visibly pregnant at the time of termination. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145, 1147-1148.)
In the remaining two decisions, the courts reversed summary judgment or summary adjudication, examining the discriminatory remarks in context and refusing to discount categorically those remarks as stray. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 145, 154, fn.15 [decision maker's derogatory comments about Mexicans during plaintiff's job interview were not isolated remarks immaterial in proving discriminatory motive, but were relevant comments raising inference hiring decision based on plaintiff's ancestry]; Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1094 [decision maker's "intonations about [plaintiff's] being pregnant" to the effect that plaintiff had mentally "checked out" made during discussion whether to retain plaintiff as employee were evidence of discriminatory motive].)
In this case, the Court of Appeal rejected application of the stray remarks doctrine, disagreeing "with suggestions that a 'single, isolated discriminatory comment' [citation] or comments that are 'unrelated to the decisional process' are 'stray' and therefore, insufficient to avoid summary judgment [citation]." The court recognized "[t]here are certainly cases that in the context of the evidence as a whole, the remarks at issue provide such weak evidence that a verdict resting on them cannot be sustained. But such judgments must be made on a case-by-case basis in light of the entire record, and on summary judgment the sole question is whether they support an inference that the employer's action was motivated by discriminatory animus. Their 'weight' as evidence cannot enter into the question."
2. The Court of Appeal in This Case Correctly Rejected the Stray Remarks Doctrine's Categorical Exclusion of Evidence
Google contends that we should adopt the judicially created stray remarks doctrine so that California courts can "disregard discriminatory comments by co-workers and nondecisionmakers, or comments unrelated to the employment decision" "to ensure that unmeritorious cases principally supported by such remarks are disposed of before trial." It argues that application of the stray remarks doctrine is an important means for trial courts to sift out cases "too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at p. 362.) On the other hand, Reid argues that courts should not view the remarks in isolation, as Google invites, but that those remarks should be considered with all the evidence in the record. As explained below, we agree with Reid for several reasons. [50 Cal.4th 539]
[7] First, strict application of the stray remarks doctrine, as urged by Google, would result in a court's categorical exclusion of evidence even if the evidence was relevant. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination. (Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402 (Shager) [stray remark "may be relevant evidence, with greater or less probative value depending on the precise character of remark"].) Indeed, Justice O'Connor, who coined the term "stray remarks," stated that stray remarks do not constitute "direct evidence" of discriminatory animus, but acknowledged that such remarks can be "probative." (Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.).)
In a later decision authored by Justice O'Connor, the United States Supreme Court declined to apply strictly the stray remarks doctrine in an age discrimination case relating to evidence of a decision maker's remark not made in the direct context of the employment decision. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 152-153 (Reeves).) In Reeves, a jury had returned a verdict in favor of an employee. The federal district court denied the employer's motion for judgment as a matter of law, but the Fifth Circuit Court of Appeals reversed the judgment, finding that no rational trier of fact could have found that the employee was fired because of his age. fn. 12 The court of appeals acknowledged " 'the potentially damning nature' " of the decision maker's age-related comments, but nevertheless discounted them on the ground they " 'were not made in the direct context of [the plaintiff's] termination.' " (Reeves, at p. 152.)
The high court criticized the court of appeals for disregarding those comments along with other evidence presented by the plaintiff, and for failing to draw all reasonable inferences in favor of the plaintiff. It noted that, by disregarding critical evidence favorable to the plaintiff and crediting evidence presented by the employer, the court of appeals "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." (Reeves, supra, 530 U.S. at p. 153.) The court held that if the plaintiff establishes a prima facie case and demonstrates pretext through circumstantial evidence, including evidence of discriminatory comments by a decision maker unrelated to the adverse employment decision, then a reasonable trier of fact may infer intentional discrimination. (Id., at pp. 148, 153-154.) Thus, Reeves [50 Cal.4th 540] indicates that even if age-related comments can be considered stray remarks because they were not made in the direct context of the decisional process, a court should not categorically discount the evidence if relevant; it should be left to the fact finder to assess its probative value.
In a decision after Reeves, the Fifth Circuit Court of Appeals impliedly rejected the stray remarks doctrine. The court warned that the stray remarks doctrine " 'is itself inconsistent with the deference appellate courts traditionally allow juries regarding their view of the evidence presented and so should be narrowly cabined.' [Citation.]" (Russell v. McKinney Hosp. Venture (5th Cir. 2000) 235 F.3d 219, 229 (Russell).) The court concluded that "[a]ge-related remarks are appropriately taken into account when analyzing . . . evidence" of discrimination "even if not in the direct context of the decision and even if uttered by one other than the formal decisionmaker, provided that the individual is in a position to influence the decision." (Ibid.).
Consistent with Reeves and Russell, we have stated that in ruling on a motion for summary judgment, "the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 856) Similarly, here, the Court of Appeal noted that by discounting age-related comments as stray remarks, a court would be permitted to do what it is otherwise prohibited from doing on a summary judgment motion, i.e., weigh the evidence. (See e.g., Horn, supra, 72 Cal.App.4th at p. 809 [acknowledging trial court was prohibited from weighing the evidence, but then finding stray remark was "entitled to virtually no weight in considering whether firing was pretextual or whether decision maker harbored discriminatory animus" (italics added)].)
[8] Google contends that a trial court must assess the relative strength and nature of the evidence presented on summary judgment in determining if the plaintiff has "created only a weak issue of fact." (Reeves, supra, 530 U.S. at p. 148) However, Google overlooks that a review of all of the evidence is essential to that assessment. The stray remarks doctrine, as advocated by Google, goes further. It allows a court to weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are made by "nondecisionmakers or [made] by decisionmakers unrelated to the decisional process." (Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.); see Reeves, supra, 530 U.S. at pp. 152-153; Tomassi v. Insignia Financial Group, Inc. (2d Cir. 2007) 478 F.3d 111, 116 ["[w]e did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category"].) Google also argues that ambiguous remarks are stray, [50 Cal.4th 541] irrelevant, prejudicial, and inadmissible. However, "the task of disambiguating ambiguous utterances is for trial, not for summary judgment." (Shager, supra, 913 F.2d at p. 402 ["On a motion for summary judgment the ambiguities . . . must be resolved against the moving party."].) Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury. (See Reeves, supra, 530 U.S. at pp. 152-153.) The stray remarks doctrine allows the trial court to remove this role from the jury.
Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in our cases. Section 473c, subdivision (c), directs that, at the summary judgment stage, courts "shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from the evidence." (See also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856 ["court[s] must consider all of the evidence and all of the inferences drawn therefrom"].)
[9] Google argues that adoption of the stray remarks doctrine provides a necessary means for courts to "winnow out" weak cases that fail to raise a rational inference of discrimination. However, a totality of circumstances analysis successfully winnows out cases "too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at p. 362 [court may grant summary judgment where " 'the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred' "].) " 'Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors,' " including " 'the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case . . . .' " (Ibid., quoting Reeves, supra, 530 U.S. at pp. 148-149.) Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered. Thus, a trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.
[10] Third, the stray remarks cases merely demonstrate the "common-sense proposition" that a slur, in and of itself, does not prove actionable discrimination. (Shager, supra, 913 F.2d at p. 402; see also Waggoner v. City of Garland, supra, 987 F.2d at p. 1166 ["mere stray remarks, with nothing more, are insufficient to establish a claim of age discrimination" (italics added)].) A stray remark alone may not create a triable issue of age discrimination. . . [50 Cal.4th 542] (See e.g., Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438-1439 [employer's statement that replacement employee had been hired because he was a " 'bright, intelligent, knowledgeable young man' " was insufficient to defeat summary judgment].) But when combined with other evidence of pretext, an otherwise stray remark may create an "ensemble [that] is sufficient to defeat summary judgment." (Shager, supra, 913 F.2d at p. 403, italics added.)
Fourth, because there is no precise definition of who is a decision maker or what constitutes remarks made outside of the decisional process in the employment context, federal circuit courts have diverged in determining what constitutes a stray remark. While courts characterize remarks by non-decision-makers as stray, they disagree as to who is a decision maker. Some courts have required that the speaker be the final decision maker in order to consider the remark as evidence of discriminatory animus or pretext. (See, e.g., Hall v. Giant Food, Inc. (D.C. Cir. 2007) 175 F.3d 1074, 1079-1080.) Other courts have considered remarks made by a speaker merely involved in the decisionmaking. (See, e.g., Rose v. New York City Bd. Of Educ. (2d Cir. 2001) 257 F.3d 156, 162 [stray remark analysis focused on speaker's influence in the "decision making process"]; Woodson v. Scott Paper Co. (3d Cir. 1997) 109 F.3d 913, 922 [stray remarks analysis focused on whether speaker was in " 'the chain of decisionmakers who had the authority to hire and fire plaintiff' "].) Yet other courts permit discriminatory remarks made by subordinate employees that implicate decision makers. (See, e.g., Bergene v. Salt River Project Agr. Improvement & Power Dist. (9th Cir. 2001) 272 F.3d 1136, 1141 [manager's motive imputed to employer though manager was not "ultimate decisionmaker"]; see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 668-669 [racially biased statement by author of negative recommendation letter to a university appointments, promotions, and tenure committee properly considered because decisionmaking body relied on the letter author's recommendation].)
As noted by the court in Shager, the stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker. "If [the formal decision maker] acted as the conduit of [an employee's] prejudice -- his cat's paw -- the innocence of [the decision maker] would not spare the company from liability." (Shager, supra, 913 F.2d at p. 405.) Many federal circuit courts have adopted Shager's analysis, finding that discriminatory comments by someone in a position to influence a decision maker were relevant. (See, e.g., Russell, supra, 235 F.3d at p. 227 [citing cases in which courts found subordinates' discriminatory comments influenced decision makers]; Hunt v. City of Markham (7th Cir. 2000) 219 F.3d 649, 652-653; Kendrick v. Penske Transp. Servs., Inc. (10th Cir. 2000) 220 F.3d 1220, 1231.) [50 Cal.4th 543]
Federal courts have also disagreed about how close in time the discriminatory remark must be to the unfavorable employment decision to categorize it as stray. Some courts have permitted evidence of comments made years before the adverse employment decision, while others have disregarded remarks made just months before the decision. (Compare Danzer v. Norden Systems, Inc. (2d Cir. 1998) 151 F.3d 50, 54-55 [reversed summary judgment for employer where supervisor called current staff "a bunch of 'alt[er] cockers' " or " 'old fogies' " more than a year before plaintiff's job elimination because they were "part of a sequence of events culminating in his discharge"] and Brewer v. Quaker State Oil Refining Corp. (3d Cir. 1995) 72 F.3d 326, 333 [reversed summary judgment for employer where statement in company newsletter two years before plaintiff's termination described two new executives as " 'star young men,' " explaining, " '[t]hat age group is our future' "] with Ptasznik v. St. Joseph Hosp. (7th Cir. 2006) 464 F.3d 691, 693, 695 [affirmed summary judgment for employer on age and national origin discrimination claims though supervisor made comments that plaintiff was " 'too old,' " " 'too Polish,' " and " 'stupid' " one to three months before termination] and Fortier v. Ameritech Mobile Comm., supra, 161 F.3d at pp. 1108, 1113 [affirmed summary judgment for employer where human resources vice president stated four months before termination it was time for " 'new blood' " and a 26-year-old worker was a " 'quick study' "].) Also, while some courts have found it determinative that the remarks were not directly related to the employment decision, others have found that comments unrelated to the decision were relevant evidence of discriminatory animus. (Compare Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer where decision maker's remark " '[w]e don't want unpromotable fifty-year olds around' " not related directly or indirectly to employees' terminations] and Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919 [affirmed summary judgment for employer where decision maker's casual comment he intended to get rid of " 'old timers' " " 'not tied directly to' " employee's termination] with Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1104 [reversed jury verdict for employer and remanded for new trial where manager told racist jokes at staff meetings and referred to Blacks as " 'damn niggers' "] and Ercegovich v. Goodyear Tire & Rubber Co. (6th Cir. 1998) 154 F.3d 344, 356 ["management's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered into the decisionmaking process in another context"].)
Finally, federal courts have treated identical remarks inconsistently. For instance, some courts have viewed decision makers' statements that older employees are not "promotable" as evidence of age discrimination, while others have refused to permit that inference from the same remark. (Compare Cline v. Roadway Express, Inc. (4th Cir. 1982) 689 F.2d 481, 488 [affirmed [50 Cal.4th 544] district court's judgment against employer where decision maker fired employee because he was not "promotable" and replaced him with younger, potentially promotable person in accordance with his understanding of company policy] with Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1282, 1284-1285 [affirmed summary judgment for employer, finding use of word "promotable" by itself did not give rise to inference of age discrimination] and Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer where vice-president of personnel stated " '[w]e don't want unpromotable fifty-year olds around' "].
Some federal courts have found employers' statements about the need for "new blood" or "young blood" to be ageist remarks, while others have not. (Compare Danzer v. Norden Systems, Inc., supra, 151 F.3d at p. 53 [reversed summary judgment for employer where supervisor made comments including " '[w]e need new blood -- new and younger' "] and Meschino v. Int'l Tel. & Tel. Corp. (S.D.N.Y. 1983) 563 F.Supp. 1066, 1071 [denied summary judgment for employer where company's CEO announced that managers " 'had to bring [in] younger blood, younger executives, change the mix' "] with Fortier v. Ameritech Mobile Comm., Inc., supra, 161 F.3d at p. 1113 [affirmed summary judgment for employer even though plaintiff's direct supervisor said " 'new blood' would be good in [plaintiff's job] position"] and Gagné v. Northwestern Nat'l Insur. Co. (6th Cir. 1989) 881 F.2d 309, 314 [affirmed summary judgment for employer even though plaintiff's supervisor commented during a meeting he " 'needed younger blood' "].
Similarly, federal courts have disagreed as to the ageist nature of references to "grey hair." (Compare Palasota v. Haggar Clothing Co. (5th Cir. 2003) 342 F.3d 569, 573, 578 [reversed district court's judgment as matter of law for employer where company president said there was enough " 'graying of the sales force' " and manager said " 'we've got an aging, graying sales force out there' "] with Sandstad v. CB Richard Ellis, Inc. (5th Cir. 2002) 309 F.3d 893, 898 [affirmed summary judgment for employer even though senior manager responsible for employee's firing expressed concern over perception the company had " 'too much grey hair' " in management] and Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer even though supervisor told plaintiff " '[w]e don't necessarily like grey hair' " because comment not directly tied to plaintiff's termination].) Courts have also disagreed as to the ageist nature of the term "old fart." (Compare Minshall v. McGraw Hill Broadcasting Co., Inc. (10th Cir. 2003) 323 F.3d 1273, 1281 [affirmed judgment after jury verdict for plaintiff where comments included company director's statement she was disgusted when "she saw an 'old fart' on television without a shirt"] and Bevan v. Honeywell, Inc. [50 Cal.4th 545] (8th Cir. 1997) 118 F.3d 603, 607, 610 [affirmed judgment after jury verdict for plaintiff where human resources head stated placement of "old farts" in organization was difficult] with Waggoner v. City of Garland, supra, 987 F.2d at p. 1166 [affirmed summary judgment for employer even though director called plaintiff an "old fart" and told him a younger person could do faster work].)
As shown above, federal courts have widely divergent views regarding who constitutes a decision maker and how much separation must exist between the remark and an adverse employment decision for the remark to be considered stray. As Reid points out, the only consistency to the federal stray remarks cases is that the probative value of the challenged remark turns on the facts of each case. That was the approach taken by the Court of Appeal here. The court considered the so-called "stray remarks" by Hölzle, Rosing, and Reid's coworkers in combination with all of the evidence. Reid's other evidence included: (1) an e-mail exchange between Google cofounder Brin and Rosing in which he told Rosing and other executives to "avoid the tendency toward bloat here particularly with highly paid individuals" and Rosing's response that he was replacing Reid as director of operations with the younger Hölzle, noting, "We are looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation. . . ."; (2) an e-mail exchange between CEO Schmidt and Rosing regarding a proposal on "getting [Reid] out," in which Rosing responded they should change the decision not to give Reid a bonus to avoid "a judge concluding we acted harshly. . . ."; (3) explanations by Rosing and Shona Brown that Reid was terminated because he was not a "cultural fit"; (4) statistical evidence of discrimination at Google; (5) Reid's demotion to a nonviable position before his termination; and (6) changed rationales for Reid's termination. fn. 13 Moreover, the Court noted Reid presented evidence that Rosing and Hölzle supervised him and were involved in the termination decisions, thus calling into question whether Rosing's and Hölzle's alleged ageist comments even qualify as stray remarks.
[11] Accordingly, in reviewing the trial court's grant of Google's summary judgment motion, the Court of Appeal properly considered evidence of alleged discriminatory comments made by decision makers and coworkers along with all other evidence in the record. fn. 14 [50 Cal.4th 546]
III. DISPOSITION
For the reasons stated above, we affirm the judgment of the Court of Appeal.
George, C.J., with Kennard, J., Baxter, J., Werdegar, J., Moreno, J., and Corrigan, J.. concurred.
FN 1. Unless otherwise indicated, all statutory references are to the Code of Civil ProcedureFN 2. In California, courts employ at trial the three-stage test that was established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, to resolve discrimination claims, including age discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) At trial, the employee must first establish a prima facie case of discrimination, showing " ' "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a [prohibited] discriminatory criterion . . . .' " ' " (Id. at p. 355.) Once the employee satisfies this burden, there is a presumption of discrimination, and the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. (Id. at pp. 355-356.) A reason is " 'legitimate' " if it is "facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination." (Id. at p. 358.) If the employer meets this burden, the employee then must show that the employer's reasons are pretexts for discrimination, or produce other evidence of intentional discrimination. (Id. at p. 356.) Here, at the summary judgment stage, the trial court did not impose an initial prima facie burden on Reid, but proceeded directly to the second step of the McDonnell Douglas formula and determined that Google had made an initial no-merit showing. (See Guz, supra, 24 Cal.4th at pp. 356-357.)
FN 3. Waiver is the " ' "intentional relinquishment or abandonment of a known right," ' " whereas forfeiture is the " 'failure to make the timely assertion of a right.' " (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6, citing United States v. Olano (1993) 507 U.S. 725, 733.) Although it is more accurate to denominate the failure to object at the summary judgment hearing a forfeiture, we will use the statutory term "waiver."
FN 4. Section 437c, subdivision (c) provides, in pertinent part, that "[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ."
FN 5. We disapprove Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, 670, footnote 1 and Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181, 1186, footnote 1, to the extent they hold that, when a trial court fails to rule on objections to summary judgment evidence, the objections are waived and are not preserved on appeal.
FN 6. A 1984 statutory amendment substituted "made either" for "raised here" so that the statute read: "Evidentiary objections not made either in writing or orally at the hearing shall be deemed waived." (Former § 437c, subd. (b), as amended by Stats. 1984, ch. 171, § 1, p. 545.)
FN 7. We disapprove Charisma R. v. Kristina S., supra, 175 Cal.App.4th 361, 369; Jones v. P.S. Development Company, Inc., supra, 166 Cal.App.4th 707, 711, footnote 4; Gallant v. City of Carson, supra, 128 Cal.App. 4th 705, 710; Ali v. L.A. Focus Publication, supra, 112 Cal.App.4th 1477, 1484; Swat-Fame Inc. v. Goldstein, supra, 101 Cal.App.4th 613, 624, footnote 7; City of Long Beach v. Farmers & Merchants Bank, supra, 81 Cal.App.4th 780, 783-785; Knight v. City of Capitola, supra, 4 Cal.App.4th 918, 924, footnote 2; and Howell v. State Farm Fire & Cas. Co., supra, 218 Cal.App.3d 1446, 1459, footnote 9, to the extent they hold that litigants must raise written objections orally at the hearing to preserve them on appeal.
FN 8. We disapprove Biljac Associates v. First Interstate Bank, supra, 218 Cal.App.3d 1410, 1419, 1424, to the extent it permits the trial court to avoid ruling on specific evidentiary objections.
FN 9. Amicus curiae California Academy of Appellate Lawyers represents that "[i]n the real world, . . . most evidentiary objections do not matter very much to the [summary judgment] decision." Similarly, amicus curiae Association of Southern California Defense Counsel comments that "[a]ll too often trial courts face a flood of evidentiary objections, objections that may be addressed to matters that are tangential at best, at least given the trial court's view of the critical issues or evidence." Amicus curiae California Academy of Appellate Lawyers asks that we pronounce a "message to trial lawyers that if they want the trial court to make meaningful rulings, they should facilitate its doing so by choosing their battles wisely and only objecting to evidence when it matters."
FN 10. Indeed, Google never raised its presumed sustained argument in the Court of Appeal. Instead, Google took on the burden of renewing its evidentiary objections in the Court of Appeal.
FN 11. Reid argues that Google failed to object in the trial court to nearly all of the evidence it now characterizes as inadmissible stray remarks. Because the Court of Appeal considered, on the merits, Google's objections to all of the remarks it argued were stray, we need not determine whether those objections were made in the trial court.
FN 12. The court in Reeves noted that, under the federal rules, the standard for granting summary judgment (Fed. Rules Civ. Proc., rule 56, 28 U.S.C.) "mirrors" the standard for judgment as a matter of law (Fed. Rules Civ. Proc., rule 50, 28 U.S.C.), such that " 'the inquiry under each is the same,' " i.e., that the court must review the record " 'taken as a whole.' " (Reeves, 530 U.S. at p. 150.)
FN 13. Reid presented evidence that he was not given any reason for his termination other than lack of "cultural fit," and was told the graduate program would continue and his termination was not performance based. Reid asserts that Google raised job elimination and performance problems as a basis for his termination for the first time in its motion for summary judgment.
FN 14. Google argues that Reid's statistical evidence was inadmissible and the parties argue the merits of whether the Court of Appeal correctly concluded there was a triable issue of material fact as to pretext. However, those issues are beyond the scope of review.
The next case is very important because it held that similar evidence (like same supervisor, same factual pattern, same retaliation to employees by different supervisors may be admissible.
Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009)173 Cal.App.4th 740 , -- Cal.Rptr.3d --
[No. B198888. Second Dist., Div. Three. Apr. 30, 2009.]
DEWANDRA JOHNSON, Plaintiff and Appellant, v. UNITED CEREBRAL PALSY/SPASTIC CHILDREN'S FOUNDATION OF LOS ANGELES AND VENTURA COUNTIES et al., Defendants and Respondents.
(Superior Court of Los Angeles County, No. BC341303, Aurelio Munoz, Judge.)
(Opinion by Croskey, Acting P. J., with Kitching, J., and Aldrich, J., concurring.)
COUNSEL
Schonbrun DeSimone Sephlow Harris & Hoffman & V. James DeSimone; Law Office of Twila S. White and Twila S. White for Plaintiff and Appellant.
Knee, Ross & Silverman, Howard M. Knee and Melanie C. Ross for Defendants and Respondents. [173 Cal.App.4th 744]
OPINION
CROSKEY, ACTING P. J.-
This is an appeal from a summary judgment granted to an employer after one of its former employees filed suit alleging the employer fired her because she was pregnant. The plaintiff alleges violations of the California Fair Employment and Housing Act (Gov. Code, §12900 et seq.), specifically sections 12940 (setting out specific types of unlawful conduct by employers, labor organizations, employment agencies and others), and 12945 (relating to pregnancy leave and other accommodations). fn. 1
To support its summary judgment motion, the employer presented evidence to the trial court that it terminated plaintiff for a valid reason--it had obtained information that plaintiff falsified her work time records. Plaintiff opposed the motion by presenting evidence that (1) she had not falsified her time records, (2) she was fired soon after she disclosed she was pregnant, and (3) defendant had fired other women after they disclosed they were pregnant. The latter assertion was based on declarations from the other women. fn. 2 [173 Cal.App.4th 745]
Defendant made evidentiary objections to these declarations, and the declarations were addressed by both parties at the hearing on the motion for summary judgment. However, the reporter's transcript shows that the trial court made no evidentiary rulings at the hearing, and the trial court's minute order for the summary judgment motion, dated January 16, 2007, does not contain explicit evidentiary rulings. Instead, the minute order shows that plaintiff's evidence of these other firings of pregnant women was implicitly accepted by the trial court, but found to be insufficient to justify denying defendant's motion for summary judgment.
Defendant served a notice of ruling that does not contain any reference to its evidentiary objections. Later, however, defendant submitted an attorney order on the summary judgment motion, which the court signed and filed on March 5, 2007, nearly two months after the hearing that motion. Despite the fact that the minute order indicates otherwise, the attorney order states that the court sustained defendant's objections to the declarations. The court signed the attorney order despite plaintiff's filed objection in which, among other things, she argued that the court had never made an express ruling on defendant's evidentiary objections. The admissibility of these declarations of defendant's former employees, along with the question as to whether triable issues of material fact were disclosed by the evidence submitted by the parties, constitute the appellate issues before us in this matter.
We conclude that the contested declarations are admissible and they constitute substantial circumstantial evidence which is sufficient to raise triable issues of material fact as to the reason for plaintiff's termination. We further conclude that other evidence in the record is also sufficient to raise triable issues regarding plaintiff's termination. Therefore, the summary judgment must be reversed and the matter remanded for further proceedings.
BACKGROUND OF THE CASE
1. Allegations in the Operative Complaint
Dewandra Johnson is the plaintiff in this case. The defendant is the United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (which also does business as United Cerebral Palsy, Inc., hereinafter, defendant). Two individuals were also named as defendants in plaintiff's operative (second amended) complaint. However, plaintiff ultimately dismissed many of the 12 causes of action in that complaint, and the individual defendants were not named in the remaining causes of action. Therefore, those individuals are not respondents in this appeal. They are, however, [173 Cal.App.4th 746] important nonparties in the case. They are Raquel Jimenez, plaintiff's supervisor and a Program Manager at the defendant foundation, and Linda Jones, defendant's director of Client Living Services and Jimenez's supervisor.
The causes of action that remain in the operative complaint (hereinafter, complaint) allege violations of the California Fair Employment and Housing Act and violations of public policy. Specifically, plaintiff asserted causes of action for discrimination based on sex (pregnancy) and discrimination based on disability (pregnancy) in violation of section 12940 and in violation of public policy; violation of California's law on pregnancy disability leaves (§ 12945); failure to take reasonable steps to prevent discrimination and retaliation (§ 12940); and wrongful termination in violation of public policy.
The complaint alleges all of the following. Defendant is a national charity which assists people with disabilities, including disabilities other than cerebral palsy. Plaintiff began her employment with defendant in November 2004 and was assigned to the position of a caregiver. In May 2005 she was promoted to the position of counselor. She was in her mid-twenties at the time. On or about July 31, 2005, plaintiff contacted Raquel Jimenez (Jimenez) and related that she was ill and needed to seek medical attention related to her pregnancy. On August 1, 2005, plaintiff's doctor diagnosed her with conditions that rendered her disabled by her pregnancy. Plaintiff alleges that this entitled her to protection under section 12945, including the right to take a pregnancy disability leave and the right to return to her position at the end of the leave. Plaintiff phoned Jimenez that same day and left a message stating that her doctor had prescribed bed rest and instructed her not to return to work until August 8, 2005. Jimenez sent plaintiff a certified letter indicating that plaintiff would need a doctor's note stating she is to be out until August 8, 2005, and a doctor's note releasing plaintiff to come back to work. fn. 3 fn. 4 [173 Cal.App.4th 747]
Plaintiff further alleges that on August 8, 2005, she called Jimenez and left a message stating that her doctor had cleared her to come back to work on August 9, 2005. Jimenez responded by phoning plaintiff and telling her to meet Jimenez at the defendant's Santa Monica facility on August 9, 2005 at 1:00 p.m. At their meeting, Jimenez informed plaintiff she was being terminated from employment and should return various materials to defendant, such as a pager and keys, and patient folders that plaintiff had in her possession. Plaintiff was given her final paycheck and a letter of termination.
The complaint alleges on information and belief that plaintiff was terminated because she was pregnant, and because she was disabled by the pregnancy and took a leave relating to her pregnancy. The complaint further alleges that Linda Jones (Jones) participated in the termination after Jones was informed that plaintiff's pregnancy condition required medical leave, and it alleges on information and belief that Jones had a discriminatory animus against pregnant women and a pattern and practice of engaging in adverse treatment of them such that she would create a justification for their termination. Also alleged on information and belief is that Jimenez had a discriminatory animus against pregnant women and heterosexual women. The complaint alleges that Jimenez disclosed to plaintiff and other employees that she is a lesbian, she gave preferential treatment to gay and lesbian employees and specifically recruited gays and lesbians to fill positions within the defendant foundation, and she made derogatory remarks regarding pregnant women and heterosexual women.
2. Theory of Defendant's Summary Judgment Motion
The theory of defendant's summary judgment motion is that defendant conducted a good faith investigation into plaintiff's time sheets and billing records for a particular workday; it had reason to conduct the investigation because plaintiff was not at a client's residence when she said she would be there; from the investigation, defendant came to the conclusion that plaintiff, an hourly employee, falsified a time sheet and billing record in an attempt to collect wages she did not earn; and it was on that basis only that defendant discharged her. Regarding the evidence that plaintiff presented to show that she was fired based on discrimination, defendant argues such evidence is not sufficient to support a finding by a trier of fact that the real reason plaintiff was discharged was because of discriminatory animus against pregnant employees. [173 Cal.App.4th 748]
3. Evidence Presented by the Parties
a. Plaintiff's Employment Positions and Supervisors
Defendant is a charitable corporation that provides services to disabled adults. Plaintiff began working for defendant as a Community Trainer (caregiver) in November 2004. That required her to provide direct care to particular clients of defendant. In her position as a caregiver, plaintiff was initially supervised by Jimenez and Loraine Sandgren, who were both program managers. (Jimenez had been hired in November 2004 for the position of program manager.) Sandgren left defendant's employ in January 2005 when she (Sandgren) became pregnant, and thereafter plaintiff was supervised solely by Jimenez.
In May 2005, plaintiff was promoted to the position of Community Living Specialist (counselor) when Jimenez recommended the promotion and Jones approved it. Plaintiff's duties as a counselor included visiting the residences of defendant's clients, assisting with their case management, staffing coverage for clients, and assisting clients with budgeting, paying bills, and doctor's appointments. She was told she could change her schedule for assisting clients if something came up that required her attention with respect to a client's health, well-being or other living situation. She was given a pager because occasionally Jimenez or defendant's clients would want to contact her.
b. Disputed Versions of Plaintiff's Job Performance
Plaintiff stated in her declaration filed in support of her opposition to defendant's motion for summary judgment that supervisor Loraine Sandgren told p laintiff she was pleased with plaintiff's work, told her she wanted plaintiff to have a raise, and told her that one of defendant's clients that plaintiff cared for, as well as that client's mother, had commented they were happy with the care plaintiff was providing to the client. Plaintiff submitted a declaration from the client's mother to that effect, as well as declarations from people who had worked for defendant, and who stated that plaintiff was a good employee. Plaintiff testified at her deposition that in her weekly meetings with Jimenez, Jimenez never told her anything negative or critical about her job performance, and she stated in her declaration that she had not received any written indications that her job performance was not satisfactory. She stated that throughout her employment with defendant, Jones told [173 Cal.App.4th 749] her she was doing a good job, as did plaintiff's co-workers, and that once Jones relayed a positive comment about plaintiff's work that was made by the client services coordinator at the Westside Regional Center. Plaintiff asserted that she returned pages as promptly as she could because the pagers that defendant gave her to use did not always function properly, and she asserted that Jimenez knew the pagers were problematic.
Defendant asserted that during the time plaintiff held the position of counselor, she had performance related issues. Jimenez testified at her deposition that on approximately 12 occasions she found plaintiff's performance to be unsatisfactory. She stated that several of those occasions involved "paging incidents," two involved plaintiff not being able to find coverage for a client that needs 24-hour care, and one involved plaintiff not being able to obtain medical supplies for a client. Other issues concerned plaintiff not appearing at appointments or following a schedule plaintiff devised for herself, and plaintiff having difficulty scheduling staff. These things occurred during the 10 weeks after plaintiff was promoted from caregiver to counselor. However, although Jimenez testified at her deposition that she did address these things with plaintiff verbally, she did not follow up with any written warnings. Also, Jimenez acknowledged that although performance evaluations are written for employees who have significant performance issues, she never wrote one up for plaintiff.
c. The Question Where Plaintiff Worked on Thursday, July 28, 2005
Plaintiff testified at her deposition that she was scheduled to work with one of defendant's clients (Steve) at his apartment residence on July 28, 2005, beginning at approximately 9:00 a.m., and scheduled to see another client, Mery, at 2:00 p.m. that same day. However, Mery called plaintiff at around 8:45 in the morning and told plaintiff that she would not be available to see plaintiff in the afternoon. Plaintiff switched Mery to the 9:00 a.m. slot because Mery had a priority situation in that her bills were in danger of being paid late if plaintiff could not see her that day. Plaintiff testified that she told Steve and one of his caregivers, Maya Davis, that she was going to switch his and Mery's schedules.
Jimenez stated in a declaration that she called Steve's residence at approximately 1:00 p.m., looking for plaintiff but plaintiff was not at Steve's home at that time. Jimenez stated that she and plaintiff spoke later that same day and plaintiff told her that she (plaintiff) intended to work with Steve at 4:00 p.m. [173 Cal.App.4th 750] that day. Plaintiff denies ever speaking with Jimenez that day. However in any event, on or about July 31, 2005, plaintiff faxed billing records (aka monthly service records) to defendant that stated she had worked at Steve's apartment on July 28, 2005 for 4.5 hours; and thereafter, on or about August 8, 2005, plaintiff faxed time records (time sheets) to defendant, and the records indicated plaintiff worked with Steve between 4:00 p.m. and 8:00 p.m. on July 28, 2005.
Nnenna Okezie is employed by defendant as an on-call caregiver. She stated at her deposition that she met Steve for the first time on July 28, 2005, which she said was a day she was called by a woman counselor who asked if she (Okezie) could care for Steve for the 5:00 p.m. to 11:00 p.m. shift because defendant did not have anyone to cover that shift. Okezie stated that the counselor told her that she (the counselor) would be there at Steve's apartment when Okezie arrived and would explain to Okezie what needed to be done for Steve. She stated the counselor was indeed there when she arrived, did show her what to do for Steve, and told her that another worker would come at 11:00 to care for Steve. Okezie stated in a declaration that she signed after her deposition was taken that when she arrived at Steve's home she relieved the worker who was scheduled to care for him until 5:00 p.m. and no one besides herself worked at his home that evening, and thus she did not see plaintiff at his home that day. She stated that the first time she ever saw plaintiff was when she met plaintiff at her (Okezie's) deposition taken in June 2006.
Plaintiff stated in her declaration that it was she who called Okezie to ask that Okezie cover the shift at Steve's home on July 28, 2005 from 5:00 p.m. to 11:00 p.m. Plaintiff stated she introduced herself as "Renee" in that telephone call to Okezie, and again when Okezie arrived at Steve's apartment on the afternoon of July 28, 2005. Plaintiff stated that Jones and Jimenez and other persons on defendant's staff have referred to her as Renee, defendant has sent her correspondence addressed to her as Renee Johnson, and that to the best of her knowledge, no one else named Renee worked for defendant.
Plaintiff testified at her deposition that she (plaintiff) arrived at Steve's apartment at approximately 4:00 p.m. on July 28, 2005, and she stayed there about four hours. Caregiver Maya Davis was there when she arrived. When Okezie arrived about an hour later, plaintiff introduced herself as Renee and explained to Okezie what Okezie would need to do for Steve during her shift. Then plaintiff left Steve's home at 8:00 p.m.
When Okezie was questioned at her deposition about the counselor who called her to come and work at Steve's on July 28, 2005, Okezie stated the counselor was an African American woman whom she had never seen before. [173 Cal.App.4th 751] Asked if she had ever met an employee by the name of Renee, Okezie stated she had met a Renee, and Renee was Steve's counselor, the person she met on July 28 at his apartment. However, plaintiff was present at Okezie's deposition, and when plaintiff's attorney indicated to Okezie that plaintiff was one of the people at the deposition, Okezie looked at plaintiff and testified she had never met plaintiff before and had never seen plaintiff before. She stated the person she met with on July 28, 2005 at Steve's apartment who told her what needed to be done for Steve has a darker complexion than plaintiff. fn. 5
One of Steve's caregivers, Maya Davis, submitted a declaration in which she stated that on June 7, 2006, defendant's attorney, Howard Knee, questioned her about events on July 28, 2005. She told Knee that plaintiff did come to Steve's apartment late in the afternoon on July 28, 2005, and plaintiff was still there when Davis left the apartment after her shift was over (at 5:00 p.m.). Davis stated in her declaration that Jimenez was present at this questioning session with Knee, and Jimenez said to Davis "That's not what you told me over the phone," and Davis replied to Jimenez that she (Davis) had "not talked to you about this at all." Davis stated in her declaration that she worked on July 28, 2005 from 9:00 a.m. to 5:00 p.m. caring for Steve. Plaintiff came by at 4:00 p.m. and Okezie arrived there after plaintiff did, and when Davis left at 5:00 p.m., both plaintiff and Okezie were still at Steve's apartment. To meet Davis' declaration, defendant argues that since Okezie stated she worked her shift by herself, then at most, Davis's declaration shows only that plaintiff was at Steve's from 4:00 p.m. to 5:00 p.m. when Okezie arrived to work the shift by herself. fn. 6 [173 Cal.App.4th 752]
Debbie Miller is defendant's coordinator (onsite supervisor) at the apartment building where Steve lives, and one of her duties was to make the rounds of the building to check on defendant's clients that live there. She also assisted with clients that needed assistance and did not have staffing, and she was responsible for insuring that the grounds of the apartment building were secure and no unwanted people were there. Defendant had clients in 12 units in the building. Miller testified at her deposition that she spoke with Jimenez on one occasion about plaintiff, and the conversation took place between July and August. Jimenez asked her if she saw plaintiff on "the 28th." Miller told Jimenez she did not remember seeing plaintiff (but she did see Okezie). Miller testified that on July 28, 2005, she was making rounds at the apartment building where Steve lived and on one of her rounds she went into Steve's apartment. Asked if she saw anyone there, Miller said she saw Okezie, and this was after 6:00 p.m. In a declaration Miller submitted, she stated that on July 28, 2005, she went to Steve's apartment around 4:00 p.m. and returned later in the evening to his apartment. She did not see plaintiff there.
d. Defendant Fires Plaintiff
On Sunday, July 31, 2005, plaintiff left a voice mail message for Jimenez saying she was ill and would not be at work on Monday. Plaintiff asserts that message included information that plaintiff needed medical attention relating to her pregnancy. Jimenez denies that plaintiff told her in that message, or anytime before she was fired, that she was pregnant. However, for purposes of the summary judgment motion, defendant accepts, as undisputed, plaintiff's representation that she mentioned the pregnancy in the July 31, 2005 voice mail. fn. 7 On Monday, August 1, 2005, plaintiff left another voice mail message for Jimenez, stating plaintiff's doctor put her on bed rest for a week. Then on August 8, 2005, plaintiff left a voicemail message for Jimenez stating she was cleared to return to work and asking whether she should meet with Jimenez or resume a schedule of meeting with clients. Jimenez responded by leaving plaintiff a voicemail message telling her to meet with Jimenez on August 9, 2005 at 1:00 p.m. [173 Cal.App.4th 753]
When plaintiff and Jimenez met on August 9, 2005, Jimenez fired plaintiff. Asked at her deposition what it was that Jimenez said to her when she was fired, plaintiff responded that Jimenez said that "based on what has happened," Jimenez did not feel that plaintiff was capable of handling the job. Plaintiff testified that Jimenez did not explain what she meant by the phrase "based on what has happened." Plaintiff stated the other things that Jimenez said to her at that time were to turn in some documents, to sign a document to receive unemployment benefits, and that she (Jimenez) did not need to see plaintiff's medical release from plaintiff's doctor. Thus, not mentioned specifically by Jimenez at their meeting were plaintiff's billing and time records, plaintiff's pregnancy, nor the week of sick leave that plaintiff had taken. fn. 8
Asked at her deposition what it was that caused defendant to make the decision to terminate plaintiff, Jimenez stated it was her (Jimenez) having confirmed with Steve, and with Okezie and Debbie Miller, that plaintiff had not been at Steve's home working on the evening of July 28, 2005. In her declaration, Jimenez stated she and Jones talked about the situation, she (Jimenez) suggested that plaintiff be terminated, and Jones agreed and instructed Jimenez to fire plaintiff.
DISCUSSION
1. Standard of Review
We review orders granting motions for summary judgment on a de novo basis. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion.
When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff's causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, Aguilar.) If a defendant's presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant's presentation, a triable issue of material fact actually exists as to those elements or the defense. (§ 437c, [173 Cal.App.4th 754] subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. (Aguilar, supra, 25 Cal.4th at p. 849.) Thus, section 437c, subdivision (c), states that summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865-866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.
2. General Principles Applicable to Wrongful Discrimination Cases
[1] Because it is often difficult to produce direct evidence of an employer's discriminatory intent when the employer takes a negative action against an employee or prospective employee, certain rules regarding the allocation of the burdens and order of presentation of proof have developed in order to achieve a fair determination of the question whether intentional discrimination motivated the employer's action. (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252 et seq. [67 L.Ed.2d 207, 101 S.Ct. 1089]; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, Guz.)
At trial, the plaintiff must present a prima facie case of discrimination: he or she was a member of a protected class; he or she was qualified for the position he or she sought or was performing competently in the position held; suffered an adverse employment action (for example, was denied employment, terminated, or demoted); and there is evidence that suggests the employer's motive for the adverse employment action was discriminatory. The burden on the plaintiff at that stage is not onerous, but it does require the plaintiff to present evidence of actions taken by the employer from which the trier of fact [173 Cal.App.4th 755] can infer, if the actions are not explained by the employer, that it is more likely than not that the employer took the actions based on a prohibited discriminatory criterion. If the plaintiff establishes a prima facie case of discrimination, a rebuttable presumption of discrimination arises and the burden shifts to the employer to rebut the presumption with evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer carries that burden, the presumption of discrimination disappears, and the plaintiff's task is to offer evidence that the justification presented by the employer is a pretext for discrimination, or additional evidence of discriminatory motive. The burden of persuasion on the issue of discrimination remains with the plaintiff. (Guz, supra, 24 Cal.4th at pp. 354-356.)
[2] In Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003-1005, Hersant, the court stated that in employer-initiated summary judgment motions, an employer's presentation of evidence showing a nondiscriminatory reason for an adverse employment action, coupled with the employee's presentation of a prima facie case of discrimination, will not result in the need for a trial on the issue of discrimination. Rather, the employee must present evidence to rebut the employer's claim of nondiscriminatory motivation, or the employer will prevail on its motion. "[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Id. at pp. 1004-1005.) The employee must do more than raise an issue whether the employer's action was unfair, unsound, wrong or mistaken, because the overriding issue is whether discriminatory animus motivated the employer. (Id. at p. 1005.) " '[T]he [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," [citation], and hence infer "that the employer did not act for . . . [the asserted] non-discriminatory reasons." [Citations.]' [Citations.]" (Ibid.) "In other words, plaintiff must produce substantial responsive evidence to show that [the employer's] ostensible motive was pretextual; that is, 'that a discriminatory reason more likely motivated the employer or that the employer's explanation is unworthy of credence.' " (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433, King.) fn. 9 [173 Cal.App.4th 756]
3. Defendant Met Its Evidentiary Burden, and Plaintiff Presented a Prima Facie Case of Discrimination
To support its motion for summary judgment, defendant was required to present evidence of a nondiscriminatory reason for taking the adverse employment action of firing plaintiff, who is a member of a protected class (pregnant employees). Defendant presented evidence that although plaintiff claimed in her time/billing records to have worked at Steve's home for four or four and one-half hours in the afternoon/evening portion of July 28, 2005, the caregiver who worked the 5:00 p.m. to 11:00 p.m. shift at Steve's home on that day told Jimenez that plaintiff was not at Steve's during that shift. Thus, the nondiscriminatory reason given by defendant for firing plaintiff was that plaintiff had falsified time records. On its face, it is sufficient to support a summary judgment in favor of defendant.
Plaintiff, in turn, presented evidence of a prima facie case that she was fired for an impermissible reason: she is a member of a protected class, she was performing her job competently, she suffered an adverse employment action, and evidence suggests a discriminatory motive for the adverse employment action because Jones indicated at her deposition that a pregnant employee poses safety concerns to herself and her clients. However, because defendant presented a legitimate reason for firing plaintiff, plaintiff also had to present "substantial evidence" that defendant's stated nondiscriminatory reason for firing her is untrue or pretextual, or that defendant fired her with a discriminatory animus. (Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)
4. Evidence upon Which Plaintiff Relies to Meet Her Substantial Evidence Burden
Plaintiff questions whether Jimenez did a thorough (good faith) investigation before firing plaintiff, since Jimenez questioned Okezie but did not question plaintiff herself, nor did Jimenez question Maya Davis who was working at Steve's until Okezie arrived there. However, without more, that comes under the rule that to defeat a summary judgment motion, a plaintiff must do more than raise an issue whether the employer's action was unsound, unfair, wrong or mistaken. Further, we note that although Jimenez did not question plaintiff or Maya Davis about plaintiff's whereabouts on the afternoon/evening of July 28, 2005, Jimenez did question Debbie Miller about whether she saw plaintiff at Steve's apartment building on July 28 and Miller said she did not recall seeing her. Additionally, Jimenez stated in her declaration that she checked the log book that is maintained at Steve's apartment and found no entry from plaintiff for July 28, 2005. While [173 Cal.App.4th 757] evidence shows that entries in the log book were not required, defendant could argue it was not unreasonable for Jimenez to note the absence of an entry by plaintiff as one piece of evidence that plaintiff did not work at Steve's home on the day in question.
[3] Plaintiff also questions whether Okezie's representations to defendant about plaintiff not being at Steve's home were correct given that plaintiff goes by the name Renee and Okezie testified that a woman named "Renee" was at Steve's apartment when Okezie arrived there and Renee explained to her how to care for Steve. Plaintiff also asserts there are contradictions in the evidence that Okezie and Miller gave in their declarations and depositions. However, all of these evidentiary matters came into being after the fact; they are not things that occurred prior to the decision to fire plaintiff. Thus, by themselves, they do not negate the evidence presented by defendant that it had a good faith reason for firing plaintiff (i.e., a reasonable belief that plaintiff had falsified time records), at the time it fired her. (King, supra, 152 Cal.App.4th at p. 433.) "It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case." (Id. at p. 436.)
Nor does plaintiff necessarily meet her summary judgment burden of presenting substantial evidence of pretext, lack of good faith, or discriminatory animus when she argues that she was fired very shortly after (1) she revealed to Jimenez that she was pregnant, and (2) she was away from work due to her pregnancy. In King, supra, 152 Cal.App.4th 426, the court held that the timing of an adverse employment action is not, by itself, sufficient to raise an inference that an employer took such action for an unlawful purpose. The employee in King was fired less than two months after returning from a four-month medical leave of absence. The employer presented evidence that the ground for firing the employee was that he violated the company's "integrity policy." (Id. at p. 436.) The King court stated: "[A] disabled employee has no greater prerogative to compromise his integrity than any other employee. The mere fact that UPS found plaintiff had breached its integrity policy shortly after returning to work is insufficient to raise an inference that his blood disorder prompted his discharge." (Ibid. ) fn. 10
Nor are we persuaded by plaintiff's argument that not telling her she was being fired because of her time records constitutes substantial evidence of pretext, a lack of good faith, or discriminatory animus on the part of [173 Cal.App.4th 758] defendant such that one can reasonably infer that it was plaintiff's pregnancy that caused her to be fired. Indeed, our Supreme Court has held that one cannot reasonably draw an inference of intentional discrimination solely from evidence that an employer lied about its reasons for taking an adverse employment action. "The pertinent statutes do not prohibit lying, they prohibit discrimination." (Guz, supra, 24 Cal.4th at p. 361.) While a circumstantial case of discrimination may be "considerably assist[ed]" by proof that the employer's stated reasons are not worthy of belief "because it suggests the employer had cause to hide its true reasons," "[s]till, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Ibid, italics and citations omitted.) Thus, it follows that if "merely" lying about the reasons for an adverse employment action will not by itself support an inference of intentional discrimination, neither will a failure to give an employee any explanation at all for firing her. And neither will Jimenez's cryptically telling plaintiff, when she fired her, that "based on what has happened" Jimenez did not feel that plaintiff was capable of handling the job. That ambiguous message does not speak specifically to the alleged false time records, the alleged performance related issues, or pregnancy. At best, it is not inconsistent with plaintiff's pregnancy condition, and it hints that perhaps Jimenez did not want to state the real reason for why plaintiff was being fired. fn. 11
[4] Although we have set out several matters which by themselves will not constitute substantial evidence that defendant's stated reason for firing plaintiff was pretextual or that defendant acted with a discriminatory animus when it fired her, there remains the question whether these matters, when taken together, do constitute sufficient evidence to demonstrate a triable issue of fact with respect to plaintiff's contention that her pregnancy was the true cause of defendant's decision to fire her. In our view, they do. Plaintiff was fired the very day after she returned from a short sick leave related to her pregnancy. Jimenez did not give plaintiff a specific reason for why she was being fired, and Jones admitted she had concerns about having pregnant employees care for defendant's clients. Jimenez never asked plaintiff about the hours she [173 Cal.App.4th 759] claimed on her time sheets, and there is no indication that plaintiff's time records were previously a cause for concern. Plaintiff goes by the name Renee, and Okezie testified that a woman named Renee was at Steve's home when she arrived there and Renee showed her how to care for Steve. Moreover, there is evidence that plaintiff was never told her job performance was unsatisfactory in any manner. In Siegel v. Alpha Wire Corp. (3rd. Cir. 1990) 894 F.2d 50, 55, the court observed that "inconsistencies in performance evaluations prior and subsequent to an employee's termination may support an inference of pretext." Here, plaintiff presented evidence that she was promoted to the position of counselor, was not given negative performance evaluations prior to her firing, and her co-workers and clients found her to be competent, whereas Jimenez testified that after she was promoted to the position of counselor, the quality of her work declined.
5. Declarations from Other Employees Also Constitute Substantial Evidence That Requires Reversal of the Summary Judgment
The challenged "me to" declarations that plaintiff included in her opposition to defendant's motion for summary judgment constitute substantial evidence requiring reversal of the judgment. Former employees of defendant stated in their declarations that (1) they too were fired by defendant after they became pregnant, (2) they know of someone who was fired by defendant because she was pregnant, (3) they resigned because Jimenez made their work stressful after they notified her they were trying to become pregnant, or (4) they know of occasions when employees who were dishonest or cited for dishonesty, were not fired by defendant. These employees worked at the same facility where plaintiff worked, they were supervised by the same people that supervised plaintiff (Jimenez and Sandgren), and their supervisors were, in turn, supervised by Jones. This is substantial evidence sufficient to raise a triable issue of material fact as to why defendant fired plaintiff. fn. 12 [173 Cal.App.4th 760]
As discussed below, courts have routinely sanctioned use of this "me to" type of evidence. Nevertheless, relying on Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, Beyda, and other cases, defendant filed written objections to those portions of the declarations that deal with the topic of pregnancy.
In Beyda, supra, 65 Cal.App.4th 511, 518, the plaintiff claimed workplace sexual harassment and sought to introduce evidence that some of the defendant's other employees had also been sexually harassed. The Beyda court upheld the exclusion of the evidence, saying: "When offered on the theory that respondents are likely to have committed the conduct at issue [in Beyda] simply because they did the same thing before, the evidence goes to propensity, and is inadmissible under Evidence Code section 1101, subdivision (a)." fn. 13 (Ibid.) The Beyda court stated that rather than lacking probative value, the evidence was actually too relevant and had too much probative value. (Ibid.) However, Beyda did not address whether the evidence could be admitted under the provisions of subdivision (b) of Evidence Code section 1101. As discussed below, many courts have held that evidence of the type sought to be introduced by the plaintiff in Beyda, and by the plaintiff in the instant case, is admissible under rule 404(b) of the Federal Rules of Evidence to show intent or motive, for the purpose of casting doubt on an employer's stated reason for an adverse employment action, and thereby creating a triable issue of material fact as to whether the stated reason was merely a pretext and the actual reason was wrongful under employment law. [173 Cal.App.4th 761]
a. The Declarations
Melissa Wyatt stated in a declaration that she worked for defendant as a counselor from March 2004 to March 2005, and she was present at a meeting in January 2005 when Jimenez and Jones discussed another employee, Diana Olivas, who was pregnant. Jimenez and Jones told Wyatt they wanted to fire Olivas because she was pregnant and they were worried about being liable in case she was injured, but they couldn't do that because it was illegal. So Jimenez and Jones discussed reasons they could use to fire her. Noting that Olivas had nicked defendant's client Steve while shaving him, Jimenez and Jones discussed terminating Olivas based on Olivas being too rough with Steve. Ultimately, Jimenez did tell Olivas that she was being fired because she was too rough with Steve, and Wyatt was present when Olivas was fired.
In a second declaration, Melissa Wyatt stated Diana Olivas was fired within a few weeks of when she inquired about maternity leave, and Jones was "extremely worried about Diana's safety and Diana hurting herself on the job." Wyatt also stated that when Jones and the person who formerly held Jimenez's position as program manager, Loraine Sandgren, learned that another employee, Denise Wooten, was pregnant, they "created accusations about Denise in order to terminate her," and Sandgren fired Wooten.
Diana Olivas stated in her declaration that she was six months pregnant when she inquired about maternity leave in March 2005 and was fired by Jimenez. She was told she was being fired because she was rough with Steve in that she nicked him once when she shaved him.
Denise Wooten stated in a declaration that she began working for defendant in February 2004 and learned she was pregnant in November 2004. She told one of defendant's counselors she was pregnant and the counselor told Jones and Sandgren, and a week or two later (in December 2004), Jones called her on the phone and left a message saying that she was being fired.
Wendy Nash stated in her declaration that she learned in late October 2004 she was pregnant. She told a client of defendant that she was caring for at the time about the pregnancy. That client, in turn, told Loraine Sandgren that Nash was pregnant. Within two days of telling the client that she was pregnant, Nash was fired by Sandgren. Sandgren told her she was being fired because she was pregnant. fn. 14 [173 Cal.App.4th 762]
Sandra Baeza stated in a declaration that she worked for defendant from August 2003 to July 2005. Jimenez became less friendly to her after she told Jimenez she was trying to become pregnant. She resigned from her position with defendant because Jimenez made it a very stressful place to work. That included Jimenez accusing Baeza of lying on her time card. Baeza told Jimenez she had been told to account for all time worked for a client even if she was not with the client. Regarding other instances of alleged dishonesty at defendant's facility, Baeza stated that one employee was cited for a time card discrepancy but was not fired. Another employee was hired even though defendant knew the employee had a conviction for welfare fraud, and this employee was eventually fired, but it was only after several months had passed since Baeza told Sandgren that the employee had been fired from a group home for stealing cologne and food. Thus, there is evidence that defendant had tolerated, at least to a certain extent, dishonesty.
Despite its assertion that "me too" evidence is not admissible, defendant itself presented evidence regarding employee pregnancy and pregnancy leaves. Jimenez stated in a declaration that when Danette Knight, one of Steve's caregivers, requested a pregnancy leave in the summer of 2005, Jimenez instructed plaintiff to prepare for Knight's absence by finding alternative care for Steve. Knight stated in a declaration that she became pregnant in early 2005, had her baby in October 2005, worked for defendant during her pregnancy and also took a pregnancy leave of absence, and returned to work beginning January 2006. Knight stated she told plaintiff she was pregnant. Plaintiff presented a different set of facts. She stated in her declaration that Danette Knight did not tell her she was pregnant, and plaintiff did not learn Knight was pregnant until after plaintiff was fired. Rather, it was a vacation request for Knight that prompted plaintiff and Jimenez to talk about finding a replacement for Knight, and during plaintiff's employment, she was not told that Knight had requested pregnancy leave.
Kern Tam stated in a declaration that she is defendant's director of human resources, defendant has over 500 employees, and a majority of them are women. "Often, [defendant's] employees become pregnant and work through their pregnancies and afterward." Tam stated defendant often receives requests for pregnancy leaves and routinely grants such leaves. Defendant's employee handbook contains a pregnancy disability policy permitting pregnant employees to take a leave of absence of up to four months. However, Maya Davis stated in a declaration that she began working for defendant in December 2004, and prior to Danette Knight taking a pregnancy leave, Davis did not know of any of defendant's employees who had been granted such a leave. [173 Cal.App.4th 763]
b. Case Law Governing the Declarations
In Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, the plaintiff alleged his employer engaged in a pattern or practice of racial discrimination in promotions to senior management positions. The court found relevant, and admissible, pattern or practice evidence in the form of (1) a statistical report showing a correlation between race and promotion, fn. 15 (2) testimony of one fellow worker who recalled conversations in which the employer's officials expressed discriminatory bias against persons of the plaintiff's race, saying they weren't good enough to do the job, and (3) anecdotal evidence of three fellow employees who believed they had suffered race discrimination. (Id. at pp. 694-699.) The Obrey court stated the latter evidence would require the jury to assess the credibility of the three fellow employees to determine the weight of their testimony (mini-trials on the three employees' own claims of being discriminated against), but that did not constitute undue delay or a waste of time under rule 403 of the Federal Rules of Evidence (28 U.S.C). (Id. at pp. 698-699.) fn. 16
In Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097 (implicitly disapproved on other grounds in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 237, 242, 244-245 [104 L.Ed.2d 268, 109 S.Ct. 1775], which grounds were in turn overruled by the Civil Rights Act of 1991 § 107, 42 U.S.C. § 2000e-2(m), Pilditch v. Board of Educ. of City of Chicago (7th Cir. 1993) 3 F.3d 1113, 1118, fn. 2, Stender v. Lucky Stores, Inc. (N.D.Cal. 1992) 780 F.Supp. 1302, 1305, fn. 9), Estes, the plaintiff sued for age and race discrimination after the defendant car dealer discharged him from his job. The reviewing court reversed a judgment against the plaintiff, finding the trial court erred in excluding the plaintiff's evidence that "tended to show a climate of race and age bias at Dick Smith Ford." (Estes, at p. 1102.) The Estes court stated that while it was true that the plaintiff had to prove that his own termination was unlawful, "[a]s a matter of common sense, however, it is hard to see how evidence which suggests that [the employer] discriminated [173 Cal.App.4th 764] against blacks in hiring would be irrelevant to the question of whether it fired a black employee because of his race." (Id. at p. 1103.) The court held the same analysis applied to plaintiff's evidence that the employer treated white customers better than black customers, and that one of the employer's managers, whom the plaintiff asserted participated in the decision to fire the plaintiff, told racist jokes about blacks and referred to black customers and the plaintiff himself as "damn niggers." (Id. at p. 1104.)
[5] The Estes court observed that a wholesale exclusion of such evidence "can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer's account of its own motives." (Estes, supra, 856 F.2d at p. 1103.) The court then went on to quote from Riordan v. Kempiners (7th Cir. 1987) 831 F.2d 690, where that court observed that the law tries to protect employees from being treated more harshly than they would be treated " 'if they were a different race, sex, religion, or national origin, but it has difficulty achieving this goal because it is so easy to concoct a plausible reason for . . . firing . . . a worker who is not superlative. A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries.' " (Estes, supra, 856 F.2d at p. 1103.) The Estes court observed that such "[c]ircumstantial proof of discrimination typically includes unflattering testimony about the employer's history and work practices--evidence which in other kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases, however, such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive." (Ibid.) The court also stated that the defendant in Estes had "confuse[d] the sufficiency of evidence to establish a violation with its admissibility. Evidence of prior acts of discrimination is relevant to an employer's motive in discharging a plaintiff, even where this evidence is not extensive enough to establish discriminatory animus by itself." (Id. at p. 1104.) The court added that although the jury might not have accepted the plaintiff's version of events at work, "he should have been allowed to present this evidence at trial." (Ibid.)
The Estes court also noted that while exclusion of any one of the pieces of evidence rejected by the trial court might not have been sufficiently prejudicial to require a reversal of the judgment, cumulatively the exclusions "ma[d]e a significant difference to Estes's chances of persuading the jury. In effect, the District Court limited Estes to proving [his employer's] discriminatory intent solely from the facts of his own discharge. Here, as in most discrimination cases, the facts of the discharge were inconclusive. [The employer's] explanation that Estes was discharged for poor performance was facially plausible and difficult to refute. Although Estes could respond that [173 Cal.App.4th 765] [the employer] had changed its initial explanation, and Estes had been an adequate employee, these facts did not, without some other evidence of discriminatory animus, present a tangible reason for disbelieving [the employer's] account of its motives. [¶] Estes's offer of proof concerning [the employer's] workplace and prior discriminatory acts could have provided this other evidence." (Estes, supra, 856 F.2d at p. 1105.)
Estes was cited with approval in Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1480 (Heyne), where the plaintiff presented a prima facie case of quid pro quo sexual harassment by the owner of the restaurant where she worked, who fired her the day after she refused his sexual proposition, and the owner asserted a legitimate reason for the firing, to wit, that the plaintiff was late in opening up the restaurant on two consecutive mornings. The Heyne court held the trial court committed prejudicial error in excluding the testimonial evidence of other female employees at the restaurant who allegedly were sexually harassed by the owner. The court stated: "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." (Id. at p. 1479.) The court cited a prior United States Supreme Court case that noted an employer's mental processes seldom can be presented by eyewitness accounts and therefore evidence that the employer has a discriminatory attitude in general is relevant and admissible to prove discrimination. (Id. at pp. 1479-1480.) The Heyne court observed that although the employer's alleged harassment of other female employees could not be used by the plaintiff to prove that the employer propositioned her on the night before she was fired, that is, could not be used to show his character in order to prove that he acted towards the plaintiff in conformity with that character, it was admissible to prove his motive or intent in discharging the plaintiff. (Fed. Rules Evid., rule 404, fn. 13, ante.) If the plaintiff could show that the employer sexually harassed other female employees, such evidence would be relative and probative of his general disrespect and sexual objectification of female employees, and such an attitude is relevant to the issue of his motive for firing the plaintiff. (Id. at p. 1480.) The probative value of the evidence "is especially high 'because of the inherent difficulty of proving state of mind.' [Citation.]" (Ibid.) fn. 17 [173 Cal.App.4th 766]
Other courts have used the same analysis to find that similar evidence was relevant and admissible. In Shattuck v. Kinetic Concepts, Inc. (5th Cir. 1995) 49 F.3d 1106, an age discrimination suit brought by a discharged employee, the court observed that even though the employee's failure to promote cause of action was time barred, a vice-president's prior comment to the plaintiff that the plaintiff's age was the reason he was not being promoted was relevant to the issue of the employer's motivation for subsequently discharging the employee. (Id. at p. 1109.) Also relevant and admissible was evidence that (1) after the plaintiff was discharged, one of defendant's executives stated plaintiff's age was the reason for the discharge, and (2) other employees were discriminated against on the basis of their age. (Ibid.) Regarding the latter evidence, the court said: "There is no proscription of evidence of discrimination against other members of the plaintiff's protected class; to the contrary, such evidence may be highly probative, depending on the circumstances." (Id. at pp. 1109-1110, fn. omitted.) In Spulak v. K Mart Corp. (10th Cir. 1990) 894 F.2d 1150, disapproved on another point in Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 615-616 [123 L.Ed.2d 338, 113 S.Ct. 1701], the court stated that "[a]s a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer's discriminatory intent." (Spulak, at p. 1156.) The court cited another court's "holding that [such] evidence [is] probative of the defendant's discriminatory intent and create[s] a fact question on the issue of pretext." (Ibid.) Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, is a sexual harassment case in which the court held that testimony regarding the defendant's area vice-president's sexual harassment of other employees was admissible to show the defendant employer's knowledge of the misconduct. (Bihun, at pp. 987-988, 990-991.)
[6] Recently the United States Supreme Court, in a case involving a claim of age discrimination in employment, took up the question of the admissibility of evidence from several former employees of the defendant who claimed that they too were discriminated against by the defendant because of their age. (Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. [170 L.Ed.2d 1, 128 S.Ct. 1140], Sprint.) Unlike the case before us, the former employees in Sprint had not worked in the same department, nor had they been supervised by the same people, as had the plaintiff. The Sprint court framed the issue on appeal as follows: "[W]hether, in an [173 Cal.App.4th 767] employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." (552 U.S. at p. [170 L.Ed.2d at p. 6, 128 S.Ct. at p. 1144].) The Supreme Court's answer was that the relevance of the evidence "is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case," and that similar considerations are involved in balancing the probative value of the evidence against its prejudicial effect. (552 U.S. at p. ___ [170 L.Ed.2d at p. 9, 128 S.Ct. at p. 1147].) Thus, contrary to the analysis of the holding in Sprint that is proffered by the defendant in the instant case, there was no wholesale rejection of such "me too" evidence by the Supreme Court, and Sprint does not support defendant's assertion that the "me too" evidence presented by plaintiff in this case should be rejected.
Further, whereas the Sprint court concluded that (1) the challenged evidence was neither per se admissible nor inadmissible and (2) the trial court should be given the opportunity to clarify the evidentiary ruling it made at trial because the basis of that ruling was not clear, (552 U.S. at p. ___ [170 L.Ed.2d at pp. 6-9, 128 S.Ct. at pp. 1144-1147]), here we can say as a matter of law that the "me too" evidence presented by the plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards. The evidence sets out factual scenarios related by former employees of the defendant that are sufficiently similar to the one presented by the plaintiff concerning her own discharge by defendant, and the probative value of the evidence clearly outweighs any prejudice that would be suffered by defendant by its admission. Dissimilarities between the facts related in the other employees' declarations and the facts asserted by plaintiff with regard to her own case go to the weight of the evidence, not its admissibility.
CONCLUSION
[7] Defendant presented a legitimate reason for firing plaintiff. It asserted that plaintiff falsified time records. Plaintiff denied that she submitted false records, and she presented a prima facie case that she was fired for an impermissible reason--her pregnancy. Because she also presented substantial evidence of pretext or discriminatory animus in her firing, she raised a triable issue of material fact regarding the true reason that she was fired. Therefore, the summary judgment must be reversed. [173 Cal.App.4th 768]
DISPOSITION
The summary judgment from which plaintiff has appealed is reversed and the cause is remanded for further proceedings in conformance with the views expressed herein. Costs on appeal to plaintiff.
Kitching, J., and Aldrich, J., concurred.
FN 1. Unless otherwise indicated, all statutory references are to the Government Code.
FN 2. The parties characterize such declarations as "me too" evidence.
FN 3. The letter sent by Jimenez is dated August 2, 2005. In her position as defendant's employee, plaintiff was apparently known by the name "Renee," and Jimenez's letter to plaintiff addresses plaintiff as "Dear Renee." The addressee name on the mailing envelope is "Dewandra Renee Johnson." The letter states: "I have received your voicemails, stating you are out for medical reasons. I will need a note from your doctor stating you are out until August 8th, 2005. Since this leave is longer than 3 days, our agency policy states you will also need a note from your doctor releasing you to come back to work. [¶] I have sent a letter since you have not returned my page, and we do not have a current phone number on file for you. At your convenience please contact me at the office [phone number], so we can discuss this matter further."
FN 4. In support of its motion for summary judgment, defendant presented evidence that it has a pregnancy disability leave policy that permits employees who are unable to work due to a pregnancy to take an unpaid leave of absence of up to four months, and when the employee returns to work the employee will be reinstated in the same or substantially equivalent position. The policy is set out in the employee handbook and in November 2004 plaintiff acknowledged in writing that she received a copy of the handbook.
Plaintiff stated at her deposition taken in this case that she had not requested an actual pregnancy disability leave. Rather, she simply informed Jimenez that she would be seeing a doctor for pregnancy related problems, and then informed Jimenez that her physician ordered her to bed rest for a week.
FN 5. There is a dispute about when Okezie was first questioned by Jimenez about her July 28, 2005 work at Steve's. At her deposition, Okezie stated that it was in early August, "a little after the service records were due," that Jimenez first questioned her about her work on July 28, 2005 at Steve's home. Okezie testified that Jimenez asked her (1) if she worked that day for Steve, (2) if someone came in for Steve after her (Okezie's) shift was over, and (3) if she worked alone that day. She told Jimenez that she did work on July 28 at Steve's home and she worked alone that day. She described her conversation with Jimenez as "short." That testimony came after she had been asked earlier at her deposition whether she remembered the date on which she met Steve for the first time. She answered that she met him for the first time on July 28. Asked if there was a reason that date stands out in her memory, she stated: "Yes, because it was called to my attention that another employee said that she worked that day, the old hours that I worked." Asked when it was called to her attention, Okezie stated: "Most likely either late August or early September, because I was out of school and that was when Raquel [Jimenez] contacted me."
FN 6. Plaintiff disputes that Okezie worked until 11:00 p.m. on the night of July 28, 2005, and she bases this dispute on a portion of the deposition testimony of Danette Knight, who is the person who began caring for Steve at 11:00 p.m. on the night of July 28, 2005. Knight testified she did not recall seeing or talking to a coordinator, caregiver or counselor that day. She stated she walked in the door at Steve's apartment building at 11:00 that day and while going to Steve's apartment she did not see anyone coming from his apartment nor could she recall seeing anyone in that vicinity. However, when asked whether Steve let her into his apartment that day, she stated he did not; and when asked whether she remembered whether anyone let her into Steve's apartment that day, Knight stated she did not remember. Knight stated she had never met an employee by the name of Nnenna and did not remember ever talking to an employee by that name, never met anyone at Steve's apartment by that name, and never heard the name Okezie or met anyone with that name. Also at her deposition, Knight stated that she had never before seen the person who was previously sitting in the chair that Knight was sitting in. However, there is no indication in the portion of the deposition transcript that is in the appellate record that such person was Nnenna Okezie. Defendant asserts that Knight's testimony is not material because "mere minutes may have passed between the time Okezie left the apartment and when Knight arrived."
FN 7. As noted infra, in a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion.
FN 8. Plaintiff did not ask Jimenez why she was being fired. That fact could be used to prove more than one thing. Defendant might assert it shows that plaintiff knew she had falsified time records. Plaintiff could assert she did not falsify time records, and she only refrained from asking why she was fired because she believed it was due to her being pregnant and having taken time off from work because of the pregnancy.
FN 9. In Guz, supra, 24 Cal. 4th 317, 360, where an employer moved for summary judgment, the court stated that it was not determining whether the plaintiff had an initial burden of presenting a prima facie case of discrimination, only that once the employer presented a nondiscriminatory basis for taking an adverse employment action against the plaintiff, the plaintiff would have to "show there was nonetheless a triable issue that decisions leading to Guz's termination were actually made on the prohibited basis of his age."
FN 10. Federal courts in the Ninth Circuit are inclined to give the timing of adverse employment actions more weight. In Stegall v. Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061, 1069, the court observed that the amount of time between an employee's protected activity and an adverse employment action imposed on the employee "can provide strong evidence of retaliation" by an employer. There, the employee was fired nine days after she complained of discrimination. The court in Passantino v. Johnson & Johnson Consumer Products (9th Cir. 2000) 212 F.3d 493, 507 stated that "evidence based on timing can be sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by the defendant."
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)
FN 11. Plaintiff also relies on King, supra, 152 Cal.App.4th 426, and Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, for their instruction on another type of cause of action-breach of implied employment contract to terminate only for good cause. Plaintiff asserts that to have an honest belief in its reason for firing plaintiff, defendant should have conducted an investigation in which neutral personnel investigated the facts and plaintiff was given an opportunity to explain what happened. However, plaintiff is not suing defendant for breach of an implied contract.
FN 12. The record contains evidence of comments made by Jimenez about pregnancy. When told that one of defendant's employees was trying to become pregnant, Jimenez is reported to have remarked that the employee should have a drink instead. The comment was made in approximately July 2005. Jimenez is also reported to have asked: "Why would you want to become pregnant?" The comments are not per se evidence of a discriminatory animus based on pregnancy, if only because the context of the comments is not known.
Defendant asserts these remarks by Jimenez are reasonably seen as "stray remarks" that carry little or no weight on the issue whether the firing of plaintiff was the result of discriminatory animus on the part of defendant. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809-810.) We disagree. They are comments that are in the mix of evidence to be presented by plaintiff to the trier of fact, and the trier of fact will determine their importance. The same is true of evidence relating to what some employees perceived as a gay and lesbian subculture of employees at defendant's facility: comments made by Jimenez (who is open about being a lesbian), about heterosexuality and being a lesbian; Jimenez telling her lesbian and gay friends to interview for positions there; and gays and lesbians receiving favorable treatment from defendant.
FN 13. Evidence Code section 1101 provides in relevant part: "(a) Except as provided in this section . . ., evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
Rule 404 of the Federal Rules of Evidence (28 U.S.C.) contains similar provisions. It states in relevant part: "(a) Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: . . . [¶s] (3) Evidence of the character of a witness [including character for truthfulness], as provided in Rules 607, 608, and 609.
"(b) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, . . . "
FN 14. All four of the employees who state they were fired when they became pregnant (plaintiff, Diana Olivas, Denise Wooten and Wendy Nash) worked at defendant's Santa Monica facility, and that facility had the same three supervisors during the period of the firings (2004 and 2005). The supervisors were Jones, Sandgren, and Jimenez. Those matters, coupled with the very short period of time between when three of these four employees state their supervisors learned they were pregnant and when they were fired, could reasonably be used by a trier of fact as evidence that knowledge of the pregnancies caused the supervisors to fire the employees.
FN 15. The Obrey court stated that statistical evidence is helpful to show a pattern or practice of discrimination, but the court did not state statistical evidence is necessary to demonstrate pattern or practice, and it observed that even though the report sought to be used by the plaintiff in that case did not account for the relative qualifications of the applicant pool, that factor went to the weight/probative value of the evidence, not its admissibility. (Obrey v. Johnson, supra, 400 F.3d at pp. 694-696.)
FN 16. Rule 403 of the Federal Rules of Evidence is similar to California Evidence Code section 352. Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
FN 17. In People v. Ewoldt (1994) 7 Cal.4th 380, the court addressed evidence of uncharged acts admissible under Evidence Code section 1101, subdivision (b), (fn. 13, ante), to prove the actor's intent in committing a charged act. "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.]" (Id. at p. 394, fn. 2, italics omitted.) " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . . ' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id at p. 402.) Subdivision (b) of section 1101 applies to the admission of evidence of crimes, civil wrongs, and other acts to prove, among other things, intent and motive.
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The following case is very important in the wage and hour area. Barbosa held that even if an employee wrongly filed an action or complaint alleging his employer violated the Labor Code, the employee may not be disciplined in any way whatsoever.
Barbosa v. IMPCO Technologies, Inc. (2009)179 Cal.App.4th 1116 , -- Cal.Rptr.3d --
[No. G041070. Fourth Dist., Div. Three. Nov. 30, 2009.]
MANUEL BARBOSA, Plaintiff and Appellant, v. IMPCO TECHNOLOGIES, INC., Defendant and Respondent.
(Superior Court of Orange County, No. 07CC08256, Charles Margines, Judge.)
(Opinion by Sills, P. J., with Rylaarsdam, J., and Moore, J., concurring.)
COUNSEL
Gould & Associates, Aarin A. Zeif and Michael A. Gould for Plaintiff and Appellant.
Brian G. Saylin and Marvin D. Mayer for Defendant and Respondent. [179 Cal.App.4th 1118]
OPINION
SILLS, P. J.-
Manuel Barbosa appeals from the adverse judgment on his complaint for wrongful termination after the superior court granted the motion for nonsuit by defendant IMPCO Technologies. He contends the trial court improperly found there was no public policy protecting a mistaken but good faith claim to overtime wages. We agree. The public policy in favor of the employer's duty to pay overtime wages protects an employee from termination for making a good faith but mistaken claim to overtime. The case must be reversed and remanded for a jury determination of the questions of Barbosa's good faith and IMPCO's reason for his termination.
FACTS
Barbosa started working at IMPCO as a carburetor assembler. At the time of his termination, in June 2007, he worked as a "cell leader" supervising up to eight other carburetor assemblers. He was paid by the hour; sometimes he and the other employees worked overtime.
Barbosa testified that in June 2007, two of the employees in his cell told him they were missing two hours of overtime. After he talked with them, he thought he also was missing two hours of overtime, "[b]ecause some employees coming to me, and they told me they're missing two hour [179 Cal.App.4th 1119] overtime starting Tuesday, [May 29]." The payroll administrator testified Barbosa came to her department on June 8 and told her that "he worked overtime, and four or five of his other employees also worked overtime, and he believe[d] that clock was wrong, and that's maybe the reason they did not get paid overtime." The payroll administrator looked at the time card report and saw that it did not reflect any unpaid overtime. She told Barbosa, "No one has complained about the time clock being wrong. So please make a copy, go to the supervisor, and tell him to approve the overtime."
Barbosa spoke to his supervisor, Jaime DeSantos, and told him he and the other employees in his cell were each missing two hours of overtime. DeSantos said he would approve the missing hours because he "just trusted [Barbosa's] call at that time." The payroll administrator got DeSantos's verbal approval and paid all the employees in Barbosa's cell for two extra hours of overtime.
The payroll administrator thought "something doesn't make sense" because "no one complained about the time clock" and "we never had [a] problem." The company had had occasional problems with a prior time clock system, but a new system had been installed at the beginning of May and it had been working correctly with no complaints. So the payroll administrator spoke to the human resources manager, who ran the report from the scans at the security entrance gate and compared that report with the time card report. The gate report showed Barbosa and the others could not have worked the overtime that Barbosa claimed.
One of the employees in Barbosa's cell, Bertha Sattarzadegan, testified Barbosa came to her and said that two other employees in their cell claimed they worked overtime on May 29 and 30. Barbosa told her to review her check to make sure the hours were correct. They had all worked the same hours, and Sattarzadegan did not think they had worked extra overtime. She went to the human resources manager and told her she should not be paid for the extra overtime because she had not worked those hours.
On June 13, Barbosa was called to a meeting with DeSantos, the payroll administrator, the human resources manager, and the operations manager, Arshad Atlaf. Atlaf asked Barbosa if he was sure he and his cell worked overtime as he claimed; Barbosa said yes. Fifteen minutes later, Atlaf met with Barbosa again and showed him the gate report. Barbosa then said, "Well, I confuse. And sorry, you know, it's for the people coming to me and told me that I confuse." [179 Cal.App.4th 1120]
When Barbosa got the paycheck that included the extra overtime, he went to the payroll department and offered to pay the money back. The payroll administrator told him she could not change anything and sent him to human resources, where he again offered to pay the money back. Barbosa was terminated on June 19, 2007. He testified Atlaf told him he was terminated for cheating the company. The payroll administrator testified Barbosa was terminated for falsifying time records. None of the other employees in Barbosa's cell was terminated; the overtime money was "eventually taken back" from them.
After Barbosa rested, IMPCO moved for nonsuit. The trial court initially denied the motion, finding there was a public policy that protected an employee from making a good faith claim for time he believed he had worked. IMPCO then called the human resources manager, who had previously been called on behalf of Barbosa, and she testified in more detail about the first meeting Barbosa had with her, the payroll administrator, DeSantos, and Atlaf. She testified that Atlaf asked Barbosa, "[I]f we have evidence to show that you didn't work the overtime, are you still claiming that you worked the overtime?" Barbosa said yes, without any doubt or hesitancy. Altaf then reminded Barbosa "that the company does not tolerate any stealing from the company. And claiming you worked overtime when you didn't is stealing from the company." Altaf asked again, "Are you sure you worked the overtime?" Barbosa responded yes. After the human resources manager completed her testimony, the court recessed for the weekend.
On Monday morning, the court told counsel it had "strong second thoughts" about its ruling on the nonsuit motion. After extensive discussion with counsel, the court changed its mind and granted the nonsuit. "I will accept plaintiff's version. It still comes down to a question of law. Good faith belief turns out to be wrong; termination thereafter of an at-will employee." The court continued, "We know the employer promptly paid the claim, thereafter, did an investigation, found out [Barbosa] was wrong. [¶] I don't see that there's a public policy that requires the employer to then make a determination whether this was good faith, not good faith, and require[s] the employer then to continue to employ this employee, who from [its] perspective made an unjustified claim for monies."
DISCUSSION
Barbosa concedes he was mistaken about his claim to unpaid overtime but contends the claim was based on a reasonable good faith belief that he was entitled to it. He argues he presented sufficient evidence to support his claim [179 Cal.App.4th 1121] and the jury should be able to decide whether his claim was made in good faith and whether IMPCO terminated him for making that claim or for falsifying time cards. We agree.
After the plaintiff has completed the presentation of his case, the defendant may move for nonsuit. (Code Civ. Proc., § 581c, subd. (a).) The motion shall be granted if the court determines that the plaintiff's evidence is insufficient to support a jury verdict in his favor. (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 746.) But a trial court must proceed with caution when making that determination because a nonsuit precludes the jury's consideration of the case. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.) When we review the granting of a motion for nonsuit, we must view the evidence in the light most favorable to the plaintiff, resolving all presumptions, inferences and doubts in his favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) After having done so, we will not sustain the judgment for the defendant unless it is required as a matter of law. (Ibid.)
We cannot say that IMPCO was entitled to judgment as a matter of law at the end of Barbosa's case. As we explain, public policy protects Barbosa from being terminated for making a good faith claim to overtime. And he presented evidence sufficient to support a jury finding that the claim was made in good faith.
[1] The common law recognizes the right of an at-will employee to bring an action in tort against his employer for termination of employment that violates a fundamental public policy. "In the last half century the rights of employees have not only been proclaimed by a mass of legislation touching upon almost every aspect of the employer-employee relationship, but the courts have likewise evolved certain additional protections at common law. The courts have been sensitive to the need to protect the individual employee from discriminatory exclusion from the opportunity of employment whether it be by the all-powerful union or employer. [Citations.] This development at common law shows that the employer is not so absolute a sovereign of the job that there are not limits to his prerogative." (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178.)
To maintain a wrongful discharge action, however, the employee must have been wronged in a way that affects more than his immediate interest. "Determining whether a claim involves a matter of public policy as opposed [179 Cal.App.4th 1122] to an ordinary dispute between the employer and employee depends on whether the matter affects society at large, whether the policy is sufficiently clear, and whether it is fundamental, substantial, and well established at the time of the termination. [Citation.]" (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708.)
[2] The duty to pay overtime wages is a well-established fundamental public policy affecting the broad public interest. "California courts have long recognized wage and hours laws 'concern not only the health and welfare of the workers themselves, but also the public health and general welfare.' [Citation.] . . . [O]ne purpose of requiring payment of overtime wages is '"'to spread employment throughout the work force by putting financial pressure on the employer . . . .'"' [Citation.] Thus, overtime wages are another example of a public policy fostering society's interest in a stable job market. [Citation.] Furthermore, . . . the Legislature's decision to criminalize certain employer conduct reflects a determination the conduct affects a broad public interest. . . . Under Labor Code section 1199 it is a crime for an employer to fail to pay overtime wages as fixed by the Industrial Welfare Commission." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1148-1149.) If an employer discharges an employee for exercising his right to overtime wages, the employee will have a viable cause of action for wrongful termination. (Ibid.)
An employee's good faith but mistaken belief is protected from employer retaliation in the whistleblowing context. In Collier v. Superior Court (1991) 228 Cal.App.3d 1117, an employee alleged he suspected that other employees were illegally shipping valuable promotional products to unauthorized recipients in exchange for bribes or kickbacks. He reported his suspicions to the employer several times. He was fired shortly thereafter, purportedly for inadequate job performance. The employee alleged a cause of action for wrongful termination, claiming he "actually was terminated in retaliation for checking on, trying to prevent, and reporting possible illegal conduct to" his employer. (Id. at p. 1120-1121.) The trial court sustained the employer's demurrer to the complaint. Reversing, the Court of Appeal found reports "about reasonably based suspicions of ongoing criminal conduct by coworkers" was in the public interest; thus, the retaliatory discharge of an employee for making such reports was the proper basis for a wrongful termination cause of action. (Id. at p. 1125.)
Citing Collier, the Supreme Court held in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 that a plaintiff's failure to prove an actual violation of law by his employer did not defeat the [179 Cal.App.4th 1123] wrongful termination cause of action. "[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his 'reasonably based suspicions' of illegal activity." (Id. at p. 87.) The Supreme Court's view was underscored by Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, which involved an employee who was fired for reporting perceived health and safety violations in the workplace. The employee brought a wrongful termination action based on Labor Code section 6310, which prohibits employer retaliation against an employee who complains about conditions affecting employee safety or health. "The public policy behind § 6310 is not merely to aid the reporting of actual safety violations . . . ; it is also to prevent retaliation against those who in good faith report working conditions they believe to be unsafe. . . . As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations." (Id. at p. 759.)
It follows that the same result should obtain when an employee exercises his statutory right to overtime wages out of a reasonable good faith belief he is entitled to it, notwithstanding the later discovery that he is wrong. Any other conclusion would open the door to employee intimidation and chill the exercise of statutory rights.
Barbosa presented evidence that he had a reasonable good faith belief he was entitled to overtime. Under the previous time clock system, mistakes in timekeeping had been made; the new system had been in place less than a month. Barbosa's co-workers convinced him the overtime was unpaid, and he in turn convinced DeSantos. He testified he was confused. In fact, the trial court acknowledged Barbosa had presented sufficient evidence to support a good faith belief when it granted the nonsuit.
[3] IMPCO argues Barbosa cannot prove he was terminated for making a claim for overtime, asserting he was terminated for misrepresenting that he worked overtime when he did not. IMPCO contends it is not a violation of public policy to fire an employee for lying and cheating his employer. IMPCO misses the point. Barbosa must prove he had a reasonable good faith belief he was entitled to overtime wages and that IMPCO terminated him because he claimed overtime based on that reasonable good faith belief. If Barbosa proves he had a reasonable good faith belief in his right to overtime, ipso facto he did not attempt to cheat IMPCO. Because Barbosa presented sufficient evidence to support both elements in his case-in-chief, the case should have been allowed to progress to its conclusion and be submitted to a jury. [179 Cal.App.4th 1124]
DISPOSITION
The judgment is reversed and the case is remanded for further proceedings.
Rylaarsdam, J., and Moore, J., concurred.
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The following case is important in Labor Law because it held that a person may not be discharged or disciplined for complaining that his employer has failed to pay commission and has worked employees without proper payment, such as wages, minimum wages and the like.
Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137 , 37 Cal.Rptr.2d 718
[No. B081797. Second Dist., Div. Seven. Jan 25, 1995.]
TONY S. GOULD, Plaintiff and Appellant, v. MARYLAND SOUND INDUSTRIES, INC., et al., Defendants and Respondents.
(Superior Court of Los Angeles County, No. LC022055, John H. Major, Judge.)
(Opinion by Johnson, J., with Lillie, P. J., and Woods (Fred), J., concurring.)
COUNSEL
William D. Evans for Plaintiff and Appellant.
John H. Lavely, Jr., and Bonnie J. Chermak for Defendants and Respondents.
OPINION
JOHNSON, J.
Plaintiff Gould brought this action against his former employer and two management-level employees after he was terminated as a sales representative. The trial court sustained demurrers to each cause of action and dismissed the complaint. We have concluded some of Gould's allegations state causes of action while some do not. Therefore we reverse the judgment of dismissal and remand the case with directions.
Facts and Proceedings Below
In the discussion below we detail the facts alleged in Gould's complaint. In summary, he alleges Maryland Sound Industries (MSI) discharged him from his employment as a sales representative in order to avoid paying him the commissions due to him and in retaliation for his informing MSI management the company was not paying overtime wages due certain of its employees. Gould also claims there was an oral understanding between him and MSI he would not be discharged except for cause and MSI breached this agreement and the covenant of good faith and fair dealing by terminating his employment for the reasons stated above. According to the complaint MSI has refused to pay Gould the commissions, other wages, and vacation pay he earned prior to his discharge. Finally, Gould alleges he was defamed by statements made by MSI supervisors who accused him of poor job performance and, specifically, making a $100,000 error in an MSI contract bid. [31 Cal.App.4th 1144]
Gould brought this action against MSI and two of its managerial employees for wrongful discharge in violation of public policy, breach of implied-in-fact contract, breach of the implied covenant of good faith and fair dealing, defamation, unpaid compensation and prima facie tort. The trial court sustained defendants' demurrers to each cause of action without leave to amend and entered a judgment of dismissal. Gould appeals from the judgment.
Discussion
I. The Trial Court Erred in Taking Judicial Notice of the Existence of a Written Employment Contract Between Gould and MSI.
Gould's contract claims against MSI are based on allegations he was employed under an oral contract governed by California law. In its demurrer, MSI requested the trial court to take judicial notice Gould was employed under a written at-will contract governed by Maryland law. MSI attached a copy of the purported contract to its points and authorities. At the hearing on the demurrer Gould contended the document was an offer to be employed by MSI which MSI never accepted. He also argued the trial court could not take judicial notice of the purported contract at the demurrer stage to contradict the allegations in his complaint.
The trial court granted MSI's request and took judicial notice Gould was employed under the written contract submitted by MSI. [1a] Because several of MSI's challenges to the sufficiency of Gould's complaint are based on the existence of this purported written contract, we must determine whether the trial court properly took judicial notice of its existence at the demurrer stage.
[2] It is "black-letter law" a demurrer tests the pleading alone. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 895, p. 334.) "When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer." (Code Civ. Proc., § 430.30 (b).) "[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint." (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423 [231 Cal.Rptr. 113].)
[1b] MSI attempts to rely on an exception to this "black-letter law" for matters which the court is required to or may judicially notice. Code of Civil Procedure section 430.30, subdivision (a) provides, "When any ground for objection to the complaint ... appears from the face thereof, or from any [31 Cal.App.4th 1145] matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading."
Here, MSI requested the trial court to take judicial notice of the existence of a written contract of employment between it and Gould based on Evidence Code section 452, subdivision (h) which permits the court to take judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." For the reasons set forth below, we hold the existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452, subdivision (h). fn. 1
[3] Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter. (Comment, Assem. Judiciary Com. accompanying enactment of Evid. Code, § 452, 29B West's Ann. Evid. Code (1966) pp. 351-352.) The statute has also been used on demurrer to take judicial notice of facts commonly known in a community, such as ownership, easements and control over land (Bethman v. City of Ukiah (1989) 216 Cal.App.3d 1395, 1399, fn. 4 [265 Cal.Rptr. 539]), and the history and operation of a local museum (Hardman v. Feinstein (1987) 195 Cal.App.3d 157, 160, fn. 2, 161 [240 Cal.Rptr. 483]).
[1c] Here, however, we have a dispute between two parties one of whom claims he was employed under an oral contract and one of whom claims the employment was pursuant to a written contract. Clearly, this dispute cannot be resolved by resorting to "facts and propositions that are not reasonably subject to dispute." fn. 2 As in this case, the "fact" a contract exists between the parties is frequently the subject of reasonable dispute. Furthermore, when [31 Cal.App.4th 1146] such disputes arise there are no "sources of reasonably indisputable accuracy" such as treatises or encyclopedias to which the court can turn to resolve the issue. Rather, the court must rely on the testimony of the parties and their witnesses whose perceptions, memory and bias may be the subject of vigorous dispute.
Moreover, before a trial court could find that the existence of a contract was not reasonably subject to dispute the court would have to engage in the kind of fact-finding appropriate for a trial on the merits, not for a hearing on demurrer. While most matters subject to judicial notice can be established by reference to a statute, court file, treatise or other document, a court cannot simply look at a piece of paper and conclude as a matter of law it is a contract between the parties. Here, for example, Gould claims the document MSI contends is a contract is merely an offer by him to enter into a contract with MSI which MSI never accepted. He further contends he is not bound by the terms of the document because he signed it under duress. These contentions raise questions of fact which cannot be resolved at the pleading stage of the case.
We conclude, therefore, the sufficiency of Gould's complaint must be tested without reference to the purported contract submitted by MSI.
II. Gould's Claims MSI Discharged Him to Avoid Paying HimAccrued Compensation, and in Retaliation for Reporting Overtime Wage Violations to MSI Management, Support a Cause of Action for Tortious Wrongful Discharge.
Gould's first two causes of action allege tortious discharge from employment in violation of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314].) [4a] In the first cause of action Gould alleges MSI terminated him to avoid paying him accrued commissions and vacation pay. In the second cause of action he alleges MSI terminated him in retaliation for his reporting to MSI's upper management that a number of MSI employees were working overtime but not being paid overtime wages. Gould alleges his discharge on these grounds contravened fundamental public policies involving the prompt payment of wages due an employee and the payment of overtime wages to employees who work more than the standard number of hours. MSI demurred to both causes of action on the ground these policies are not fundamental public policies of the type which will support a claim for tortious wrongful discharge. [31 Cal.App.4th 1147]
[5] Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 [4 Cal.Rptr.2d 874, 824 P.2d 680].) A policy is "fundamental" when it is "carefully tethered" to a policy "delineated in constitutional or statutory provisions" (id. at p. 1095), involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute (id. at p. 1090), and is " 'well established' " and "sufficiently clear" to the employer at the time of the discharge (ibid.). Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256 [32 Cal.Rptr.2d 223, 876 P.2d 1022].) However, as we noted in Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390, 401 [3 Cal.Rptr.2d 6], an action for tortious discharge is not strictly limited to these situations but will lie "wherever the basis of the discharge contravenes a fundamental public policy."
[4b] Statutory provisions and case law support Gould's contention the prompt payment of wages due an employee is a fundamental public policy of this state. "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." (Lab. Code, § 201.) "If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter...." (Lab. Code, § 202.) In Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837 [187 Cal.Rptr. 449, 654 P.2d 219], the court stated, "Public policy has long favored the 'full and prompt payment of wages due an employee.' ... '[W]ages are not ordinary debts .... [B]ecause of the economic position of the average worker and, in particular, his family, it is essential to the public welfare that he receive his pay' promptly." (Italics added; citations omitted.) Thus, the prompt payment of wages serves "society's interests ... through a more stable job market, in which its most important policies are safeguarded." (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1095, italics added.)
Labor Code section 216, subdivision (a) provides any employer who, "[h]aving the ability to pay, willfully refuses to pay wages due and payable after demand has been made" is guilty of a misdemeanor. The Legislature's decision to criminalize violations of the prompt payment policy also supports Gould's contention the policy involves a broad public interest, not merely the interest of the employee. (Cf. Lazar v. Superior Court (1994) 34 Cal.App.4th 1640, 1653 [35 Cal.Rptr.2d 578] review granted February 23, 1995 (S044234) [criminalization of employment fraud reflects broad public interest].) [31 Cal.App.4th 1148]
From the foregoing statutes and case law we conclude if MSI discharged Gould in order to avoid paying him the commissions, vacation pay, and other amounts he had earned, it violated a fundamental public policy of this state. fn. 3 The trial court, therefore, erred in sustaining the demurrer to the first cause of action.
In his second cause of action, Gould alleges MSI discharged him for reporting to management the violation of overtime wage laws applicable to other MSI employees. Gould does not contend he was illegally denied overtime wages. [6] MSI contends discharging Gould for reporting violation of the overtime wage laws to upper management does not give rise to a Tameny cause of action. It argues payment of overtime wages is not a duty affecting a fundamental public interest but a private matter between MSI and its employees. Even if payment of overtime wages is a matter of public policy, discharging Gould did not contravene that policy because Gould was not seeking or entitled to overtime wages and his report of violations to MSI management served only the private interest of MSI. None of MSI's arguments are persuasive.
The duty to pay overtime wages is a duty imposed by the state; it is not a matter left to the private discretion of the employer. (Lab. Code, § 1173; Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 29 [273 Cal.Rptr. 615].) California courts have long recognized wage and hours laws "concern not only the health and welfare of the workers themselves, but also the public health and general welfare." (California Grape etc. League v. Industrial Welfare Com. (1969) 268 Cal.App.2d 692, 703 [74 Cal.Rptr. 313].) In Monzon, supra, we observed one purpose of requiring payment of overtime wages is " 'to spread employment throughout the work force by putting financial pressure on the employer ....' " (224 Cal.App.3d at p. 39.) Thus, overtime wages are another example of a public policy fostering society's interest in a stable job market. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1095.) Furthermore, as we have previously explained, the Legislature's decision to criminalize certain employer conduct reflects a determination the conduct affects a broad public interest. (See preceding [31 Cal.App.4th 1149] page.) Under Labor Code sections 1174 and 1175 it is a crime for an employer to fail to keep or refuse to furnish payroll records showing the hours worked daily by, and wages paid to, its employees. Under Labor Code section 1199 it is a crime for an employer to fail to pay overtime wages as fixed by the Industrial Welfare Commission.
There is no requirement the plaintiff be a direct beneficiary of the policy violated by his or her discharge. Although Sentry Insurance did not discriminate against Gantt on account of his sex, it violated public policy when it discharged him for refusing to give false information to the Department of Fair Employment and Housing which was investigating sexual harassment charges filed by a coworker. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1096.) Hejmadi was not strip-searched by his employer, but his discharge violated public policy when it resulted from his complaints to management about illegal strip searches of suspected shoplifters. (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 534, 539 [249 Cal.Rptr. 5].)
Finally, we reject the argument Gould's discharge was not tortious because it resulted from the disclosure of information to MSI which served only the private interest of MSI. This argument relies on Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373], in which Foley was fired after disclosing to upper management that his immediate supervisor was under investigation by the FBI for embezzlement from the supervisor's former employer. Foley contended his discharge contravened a substantial public policy imposing a duty on employees to report relevant business information to management. The court held that even assuming such a duty existed it was not one which sought to protect the public but served only the private interest of the employer. Therefore, the rationale underlying the Tameny line of cases was not applicable. (Id. at pp. 669-671.) As stated in Turner v. Anheuser-Busch, Inc., supra, "The tort of wrongful discharge is not a vehicle for enforcement of an employer's internal policies or the provisions of its agreements with others. [F]ailure to identify a statutory or constitutional policy that would be thwarted by [the plaintiff's] discharge dooms [the] cause of action." (7 Cal.4th at p. 1257.)
The present case has public policy implications which were not present in Foley. The plaintiff in Foley reported on a coworker's possible past criminal conduct with a previous employer. This is a far different situation from one involving a report of a coworker's present illegal or unsafe conduct with the current employer. Gould's report was of the latter kind. Gould reported to MSI management that a number of MSI employees were currently working overtime but not being paid overtime wages. Thus, Gould informed MSI about ongoing conduct which was not only inimical to the public health and general welfare but also illegal. (See discussion supra, p. 1148.) [31 Cal.App.4th 1150]
Several Court of Appeal cases before and after Foley have recognized the tort of wrongful discharge occurs when the employee is terminated for reporting to the employer about existing unhealthful or unlawful conduct.
In Hentzel v. Singer Co., supra, the court held the plaintiff stated a cause of action for tortious wrongful discharge by alleging he was terminated for complaining to his employer about his unhealthful working environment, in particular, the presence of cigarette smoke. The court reasoned Hentzel's report implicated the public policy interest in a safe and healthful working environment for employees. (138 Cal.App.3d at p. 298.) Hentzel was specifically distinguished in Foley as an example of a case involving the disclosure to the employer of "illegal, unethical or unsafe practices" (47 Cal.3d at p. 670), and was cited with approval in Gantt as an example of "reporting an alleged violation of a statute of public importance." (1 Cal.4th at p. 1091.)
In Blom v. N.G.K. Spark Plugs (U.S.A.), Inc. (1992) 3 Cal.App.4th 382 [4 Cal.Rptr.2d 139] and Collier v. Superior Court (1991) 228 Cal.App.3d 1117 [279 Cal.Rptr. 453] the courts upheld causes of action for tortious wrongful discharge where the plaintiffs alleged they were terminated for reporting violations of law to their employers. The court in Collier concluded reports of unlawful conduct to the employer are as much in the public interest as reports to a law enforcement agency. The court reasoned if employees are not protected from retaliatory discharge for reporting violations to their employers, a practical interest in self-preservation would deter employees from making any reports at all. Although the employee could not be discharged for reporting to a public agency, the employee "would face an obvious disruption of his or her relationship with the employer, who would be in the unfortunate position of responding to a public agency without first having had the opportunity to deal internally with the suspected problem. These discouraging options would leave the employee with only one truly safe course: do nothing at all." (228 Cal.App.3d at pp. 1123-1124.) Applying a hypothetical suggested in Foley (47 Cal.3d at p. 670, fn. 12), the court in Collier also reasoned an agreement between the employer and employee that the employee should not report suspected law violations to the employer "would present serious public policy concerns." (228 Cal.App.3d at p. 1125.)
For the reasons stated above, we conclude if MSI discharged Gould in retaliation for his reporting violations of the overtime wage law to MSI management, it violated a fundamental public policy of this state. The demurrer to the second cause of action should have been overruled. [31 Cal.App.4th 1151] III. The Complaint Fails to State a Cause of Action forBreach of an Implied Contract or of an Implied Covenant of Good Faith and Fair Dealing.
[7] Labor Code section 2922 establishes a presumption of at-will employment. It is well settled, however, this presumption may be rebutted by evidence of a contrary intent. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 677.) [8a] In his third cause of action, Gould contends there was an implied-in-fact agreement between him and MSI that he would not be terminated except for good cause and MSI breached this agreement.
[9a] To state a cause of action under this theory the plaintiff must plead facts which, if proved, may be sufficient for a jury to find an implied-in-fact contract limiting the defendant's right to discharge the plaintiff without cause. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 682.) There are no hard-and-fast rules for pleading such an agreement. Rather, the courts look to "the totality of the circumstances," including length of employment, the personnel policies or practices of the employer, the employer's conduct reflecting assurances of continued employment, including oral assurances, promotions and salary increases, practices in the industry and handbooks or guidelines. (Id., at p. 682.)
[8b] Here Gould failed to allege sufficient facts from which a jury could find an implied-in-fact agreement not to discharge him except for good cause. Gould was only employed for three years before he was terminated. He received no promotions or salary increases, although his draw against commissions was increased. The complaint contains no allegations regarding MSI's personnel practices or practices in the industry, nor does it refer to any employee's handbook or guidelines from which a good-cause termination policy could be inferred.
[9b] Although longevity of service should not be overemphasized (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 681), it is relevant to show a sufficient period for conduct to occur on which a finding of the existence of an implied contract not to terminate except for good cause can be based. (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 14 [267 Cal.Rptr. 618].) In McLain v. Great American Ins. Companies (1989 208 Cal.App.3d 1476 [256 Cal.Rptr. 863], the court upheld a judgment for plaintiff in a wrongful termination case where the employee had been with the defendant only 18 months. (Id. at p. 1481.) The court, however did not rely on this fact in upholding the judgment but relied on the employer's personnel manual and the testimony of other employees about the employer's personnel practices. (Id. at pp. 1486-1487.) No such evidence was introduced in the present case. (Thomka v. Financial Corp. (1993) 15 Cal.App.4th 877, 881-883 [19 Cal.Rptr.2d 382].)
[8c] The only facts bearing on the existence of an implied-in-fact agreement not to terminate without good cause are that Gould completed his [31 Cal.App.4th 1152] 90-day probationary period and his supervisor told him once employees successfully complete their probationary period they become "members" of the company and that MSI was looking for "long-term" employees.
In Thomka, supra, we cited the fact plaintiff completed his probationary period with defendant as one piece of evidence supporting the jury's damage award for breach of an implied-in-fact contract. (15 Cal.App.4th at p. 881.) However, in Thomka "[t]here was much evidence of the custom practice and treatment of all account executives as permanent 'non-probationary' employees," as well as evidence an upper management official told plaintiff, shortly before he was terminated, account executives who continued to meet their quota "would be around for a long time" and " 'would have a home with American Savings.' " (Id. at pp. 882, 883.) (See also Kelecheva v. Multivision Cable T.V. Corp. (1993) 18 Cal.App.4th 521, 532-533 [22 Cal.Rptr.2d 453] [company handbook raised triable issue of fact whether employee who completed probationary period could be terminated except for good cause].)
The vague reference by Gould's supervisor to Gould becoming a "member" of the company and the statement MSI was looking for "long term" employees are not the kind of communications from an employer which support assurance of ongoing employment absent good cause for termination. As the court observed in Foley, " '[O]blique language will not, standing alone, be sufficient to establish agreement.' " (47 Cal.3d at p. 681, quoting Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311, 329 [171 Cal.Rptr. 917].)
Because Gould has failed to state a cause of action for breach of an implied-in-fact agreement not to terminate him except for good cause, it necessarily follows he cannot state a cause of action for breach of the implied covenant of good faith and fair dealing on the ground that he was terminated without good cause. The covenant of good faith and fair dealing does not transform a terminable-at-will employment contract into a terminable-only-for-good-cause contract. Whether MSI had a good faith belief in its ground for discharge, or whether it had any ground at all, is irrelevant. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 369 [34 Cal.Rptr.2d 438]; Slivinski v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 806 [270 Cal.Rptr. 585].)
[10] The question remains whether the trial court should have granted Gould leave to amend his complaint to attempt to state a cause of action for breach of an implied-in-fact agreement. Ordinarily it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility the defect can be cured. (Goodman v. Kennedy (1976) 18 Cal.3d [31 Cal.App.4th 1153] 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737].) However, neither we nor the trial court is required to use our imagination as to facts Gould might allege if given the opportunity. Rather the burden is on the plaintiff to show in what manner the complaint can be amended and how such an amendment would cure the defect. (Ibid.) Gould was obviously aware of this rule because he offered in the trial court and on appeal to amend his complaint to deal with the alleged written contract submitted by MSI. (See discussion in pt. I., supra,) He did not, however, offer to amend the complaint with respect to the cause of action for breach of an implied-in-fact agreement. We presume, therefore, he has alleged all the facts he truthfully can with respect to that claim.
[8d] We conclude, therefore, the trial court properly sustained the demurrer to the third and fourth causes of action without leave to amend.
IV. The Statement Gould Made a $100,000 Error in Estimating a Project Supports a Cause of Action for Defamation.
[11] Gould's fifth cause of action alleges defamation (slander) by his supervisor, Stahl, who accused Gould of "poor performance" in his job assignment with MSI, and by MSI's senior project manager, Leister, who informed persons employed by another company Gould "made a $100,000 error in the estimating" of an MSI bid.
Slander is "a false and unprivileged publication, orally uttered, ... which [inter alia] tends directly to injure [a person] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profits [or] which, by natural consequence, causes actual damage." (Civ. Code, § 46.) "The question whether a statement is defamatory can be reached on demurrer as a matter of law." (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 551 [216 Cal.Rptr. 252].)
In Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965 [18 Cal.Rptr.2d 83], the court addressed the question whether a poor performance evaluation by an employer would support a cause of action for defamation by the employee. The court held "unless an employer's performance evaluation accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior ... it cannot support a cause of action for libel. This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts." Jensen's supervisor [31 Cal.App.4th 1154] evaluated his work as "adequate in certain respects" but noted Jensen had been "the subject of some third party complaints," "was not carrying his weight," exhibited a "negative attitude in dealing with others," lacked "direction in his project activities" and was "unwilling to take responsibility for the projects he oversaw." (Id. at p. 966.) The court held this evaluation would not support a cause of action for defamation because it constituted opinion, not fact, and did not suggest Jensen lacked honesty, integrity, competence, or that he had reprehensible personal characteristics. (Id. at pp. 970-971.)
Here, the statement by Gould's supervisor accusing Gould of "poor performance" is clearly a statement of opinion. It does not suggest any lack of honesty, integrity or competency on Gould's part nor does it impute any reprehensible personal characteristic. Therefore, under Jensen, we conclude this statement is not defamatory. fn. 4
We reach a different conclusion as to Leister's accusation Gould made a $100,000 mistake in estimating an MSI bid. This statement would tend to injure Gould by imputing to him incompetence in his trade. (Civ. Code, § 46; Jensen v. Hewlett-Packard Co., supra, 14 Cal.App.4th at p. 965.) Furthermore, it is a statement of fact susceptible to proof or refutation by reference to concrete, provable data. (Cf. Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600 [131 Cal.Rptr. 641, 552 P.2d 425]; Jensen, supra, 14 Cal.App.4th at p. 971.) The present case is distinguishable from Soules v. Cadam, Inc., supra, in which we held damages for defamation are not recoverable in a wrongful discharge case where the defamation claim is founded on the same conduct alleged to constitute breach of the covenant of good faith and fair dealing. (2 Cal.App.4th at pp. 403-404.) Here, Gould alleges Leister's defamation as an independent tort. Therefore, the court erred in sustaining the demurrer to the fifth cause of action insofar as it alleges defamation based on the statement accusing Gould of making a $100,000 mistake in estimating an MSI bid.
V. Gould's Complaint States a Cause of Action for Unpaid Compensation.
[12] In his sixth cause of action, Gould alleges he and MSI had an agreement whereby Gould was to receive a 3 percent commission on the gross sales of any and all MSI products. He alleges he obtained a contract for MSI to install a sound system in the San Jose Sports Arena and thereby [31 Cal.App.4th 1155] earned a commission of $51,000 which MSI has refused to pay. He further alleges MSI owes him $979 for other work he performed under an oral agreement with MSI plus accrued vacation pay in the amount of $1,800.
MSI demurred to this cause of action on the ground Gould failed to allege facts which would support a criminal charge of failure to pay wages due. (Lab. Code, § 216.) fn. 5 No such facts are necessary to state a cause of action for what, in essence, is a breach of contract.
The trial court erred in sustaining the demurrer to the sixth cause of action.
VI. Gould's Complaint Does Not State a Cause of Action for Prima Facie Tort.
We have held Gould has stated causes of action for the only tort remedies he possesses-damages for discharge in violation of public policy and for defamation. We have held he has not stated a cause of action for breach of implied-in-fact contract or breach of the implied covenant of good faith and fair dealing. But even if he had adequately pled such causes of action, he cannot do an end-run around Foley by attempting to incorporate those claims into an overall "prima facie tort." (Soules v. Cadam, Inc., supra, 2 Cal.App.4th at p. 404.) We conclude, therefore, the trial court properly sustained the demurrer to Gould's seventh cause of action without leave to amend.
Disposition
The judgment of dismissal is reversed. The matter is remanded to the trial court with directions to overrule the demurrers to the first, second, fifth and sixth causes of action and to sustain the demurrers to the third, fourth and seventh causes of action without leave to amend. Each party to bear its own costs on appeal.
Lillie, P. J., and Woods (Fred), J., concurred.
FN 1. Our decision in this case is limited to attempts to establish the existence of a contract under the "indisputable facts" provision of Evidence Code section 452, subdivision (h). This is the only ground urged by MSI and the only ground even conceivably applicable under the circumstances here. We do not rule out the possibility the existence of a contract could be established by judicial notice under different circumstances, e.g., through reference to the plaintiff's pleadings or discovery responses in the same or a different action. (See Evid. Code, § 452, subd. (d); Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877 [6 Cal.Rptr.2d 151]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 373-374 [228 Cal.Rptr. 878].)
FN 2. The case relied on by MSI, Ascherman v. General Reinsurance Group (1986) 183 Cal.App.3d 307, 310-311 [228 Cal.Rptr. 1], is not on point. In that case, there was no dispute over the existence of the contract alleged in the plaintiff's complaint. On demurrer to the complaint the court took judicial notice of the terms of the alleged contract under Evidence Code section 452, subdivision (h).
FN 3. We recognize the motivation attributed to MSI seems illogical because discharging Gould would not relieve MSI of the duty to pay the wages and benefits due him. To the contrary, discharging him caused his compensation to be payable "immediately." (See Lab. Code, § 201, quoted supra.) Nevertheless, for purposes of demurrer we accept the truth of Gould's material allegations. (Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d at p. 170.) The tort of wrongful discharge is committed if the employee is terminated for "a purpose that contravenes fundamental public policy" (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1094, italics added) regardless of whether the discharge actually accomplishes the unlawful purpose. (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 295-296 [188 Cal.Rptr. 159, 35 A.L.R.4th 1015].)
FN 4. Because we find the statement is not defamatory, we do not reach the question whether Gould adequately pled compelled self-publication of the statement. (Cf. Davis v. Consolidated Freightways, supra, 29 Cal.App.4th at p. 373.)
FN 5. Under Labor Code section 216, an employer is guilty of a misdemeanor if, having the ability to pay, it willfully refuses to pay wages due after demand for payment has been made, or if the employer falsely denies wages are due or falsely disputes the amount due with intent to secure a discount on the indebtedness or to harass, oppress, hinder, delay or defraud the employee.