November 02, 2021

California Appellate Court Rules Stray Remarks Enough to Defeat Summary Judgment In Age Discrimination Case

Stray remarks by a non-decision maker, together with other evidence, may be enough to keep a discrimination case alive, the California Court of Appeal for the second appellate district held in the recently decided Jorgensen v. Loyola Marymount University.

The plaintiff, Linda Jorgensen, a long-time employee of Loyola Marymount University, sued the university for age and gender discrimination, after a newer, younger employee who she helped train - Johana Hernandez - was promoted to an assistant dean position over her. The University moved for summary judgment, offering evidence of legitimate justifications for its decision. Jorgensen opposed the motion with declarations from other older women who had worked under the decision maker, including one from a former university employee who declared that during her employment, another employee had expressed interest to her in another open position – a position different from the one Jorgensen sought. In her statement, the former university employee explained that when she mentioned this to Hernandez, Hernandez immediately responded by saying that she “wanted someone younger.” The trial court excluded the former university employee’s declaration and granted the university’s motion for summary judgment.

The Court of Appeal reversed the trial court’s summary judgment ruling, concluding that the trial court had erroneously excluded the former University employee’s declaration. Citing the California Supreme Court’s decision in Reid v. Google, Inc., the court explained that even a non-decision maker’s age-based remark “may be relevant, circumstantial evidence of discrimination.” In the case before it, the Court of Appeal held that even though it was a non-decision maker who made the remark, and even though the remark was made about another position, the remark was relevant because the evidence demonstrated that Hernandez could influence the decision maker when it came to hiring and promotion decisions. The court noted as an example that Hernandez was an active participant – not a note taker – in all three interviews for the associate dean position at the University, along with the decision maker. Following the interviews, she had discussions with the decision maker about who to hire. The decision maker had confided to her that he was “torn” about the decision. Simply put, “a jury could conclude Hernandez had [the decision maker’s] ear,” the appellate court reasoned.

The Court of Appeal’s decisions in Jorgensen and Reid reinforce the challenges employers may face in bringing summary judgment motions, even in cases where a non-decision maker makes stray remarks about a position not sought by the plaintiff.

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