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by D. Gregory Valenza | The Daily Recorder | Aug 16, 2010

All employment lawyers know winning summary judgment in an employment case is not easy. Judges understandably are reluctant to deprive plaintiffs of their day in court. The summary judgment standards afford ample opportunities for plaintiffs to identify triable issues of fact. Appellate review is de novo, permitting appellate courts to freely second-guess trial judges’ conclusions.

Practitioners also know that preparing a motion that not only is legally meritorious, but also complies with numerous procedural hurdles, makes victory that much more difficult. At this point, I can almost hear the plaintiff’s bar’s collective “boo hoo.” Good news, plaintiff’s bar: the California Supreme Court’s decision in Reid v. Google, ___ DJDAR ____ (Aug. 5, 2010), sets the summary judgment bar higher for compliance with procedural requirements and the merits as well.

The Supreme Court in Reid addressed two issues: one that affects all pre-trial lawyers; another specifically relevant to employment law. The general litigation issue is how to make and preserve evidentiary objections in the context of a motion for summary judgment. The employment law issue involves application of the “stray remarks” doctrine in employment discrimination cases.

By way of background, Google hired Brian Reid in June 2002 as director of operations and director of engineering. He was 52; his hiring manager was 55. Reid remained employed until February 2004, when he was discharged.

Reid was highly educated in computer science and engineering. His only performance appraisal was glowing. However, in Fall 2003, Google relieved Reid of responsibility for his positions and reassigned him to develop an in-house graduate degree program and an undergraduate recruitment program.

The reassignment was short-lived. By January 2004, Google’s top management wanted to discharge Reid. Management decided to pay Reid some severance and let him go. Google asserted it discontinued its graduate degree program and had no place for Reid in the engineering department. Although management encouraged him to seek other positions within Google, no one was willing to accept his transfer requests.

Reid claims that his managers and others made frequent disparaging remarks to and about him on account of his age. According to Reid, one senior manager told Reid his opinions and ideas were “obsolete” and “too old to matter,” he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and he did not “display a sense of urgency” and “lack[ed] energy.” Other coworkers called Reid, among other things, an “old man,” and joked that Reid’s CD (compact disc) jewel case office placard should be an “LP” instead of a “CD.” Reid claimed he was told he was not a “cultural fit” as the reason for his termination.

Reid sued for age discrimination in violation of the Fair Employment and Housing Act. The trial court granted Google’s motion for summary judgment. However, the court refused to make specific rulings on Google’s 31-pages of objections to Reid’s evidence. The trial court instead noted it considered only admissible evidence, following Biljac Associates v. First Interstate Bank 218 Cal.App.3d 1410, 1419 (1990).

The Court of Appeal reversed the summary judgment, holding Reid adduced sufficient admissible evidence of age discrimination to reach a jury. The court also decided that if a trial court does not make specific rulings on objections, the court of appeal will rule on them. The appellate court then rejected Google’s objections to Reid’s evidence. The court relied on Reid’s statistical evidence and the ageist comments Reid introduced as sufficient evidence of discrimination to raise a triable issue of material fact.

The Supreme Court accepted review to consider whether the trial court’s failure to rule on Google’s objections amounted to a “waiver” of the objections on appeal. The Supreme Court examined the relevant case law, statutes and rules regarding objections to evidence offered in support and opposition to summary judgment motions. The court decided that neither Code of Civil Procedure Section 437c(b)(5), nor California Rules of Court 3.1352 and 3.1354, require the trial court to make specific rulings on objections. Rather, these provisions specify how objections are to be made, and impose waiver only when the objector fails to follow them.

The Court ultimately decided that a party effectively may object by submitting written objections before the motion hearing, or by arranging for a court reporter and orally objecting at the hearing. The trial court must then rule. But if the trial court does not do so, the objections are preserved for appeal.

This approach, while practical, creates new problems. The appellate court must assume that the trial court “impliedly overruled” the objections and admitted the evidence. The Supreme Court declined to address whether the Court of Appeal reviews evidentiary rulings de novo along with the motion’s merits, or under the “abuse of discretion” standard normally applicable to trial courts’ rulings on evidence. The abuse of discretion standard naturally makes it more likely the lower court’s decision will be affirmed. The Court also did not say which standard of review applies when the trial court does making evidentiary rulings. The Court left open the possibility that a litigant may request remand to the trial court for rulings on objections, rather than seeking rulings by the court of appeal. Finally, if the trial court denies summary judgment, the only way to obtain relief is via writ. Courts of Appeal summarily deny most writ petitions.

At the urging of amici curiae, the Supreme Court issued a special message, which may ameliorate these issues. The court encouraged “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.”

To follow that advice, litigators must have the judgment and experience to know what issues “really count,” and more than a passing knowledge of the Evidence Code. Deciding whether to object is often harder than knowing what is objectionable. So, as the Court of Appeal in Nazir v. United Airlines, 178 Cal.App.4th 243 (2009), suggested, allowing newer lawyers to submit boiler-plate objections to all evidence offered is not advised. It also may be wise to highlight outcome-determinative objections in the reply memorandum and orally at the hearing.

The objections issue arose in part because of Google’s objections to Reid’s proffered evidence of ageist comments. Google argued that the Court of Appeal should exclude from its consideration “stray” ageist comments uttered by persons not involved in the decision to discharge him.

The Court of Appeal rejected this request, declining to apply what is known as the “stray remarks” doctrine. The Supreme Court explained the “stray remarks doctrine” as follows: “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.”

The court concluded that federal courts apply the doctrine inconsistently, both as to who counts as a “decisionmaker” and what constitutes the “decisional process.” The court also reviewed California appellate decisions, in which courts held that certain discriminatory comments either were adequate or insufficient to raise triable issues of fact.

Ultimately agreeing with the Court of Appeal’s approach and Reid’s argument, the Supreme Court concluded there should not be a “doctrine” under which courts categorically exclude potentially relevant evidence of discrimination. Such arguments go to the weight of the evidence, which courts do not consider in the context of motions for summary judgment.

The court emphasized that a slur alone is not sufficient to raise a triable issue, particularly when unrelated to the adverse decision or the decisionmaker. Rather than decide whether discriminatory comments qualify as “stray,’ the trial court must consider them in the context of the entire record to determine whether the case presents sufficient evidence to require a trial.

Practitioners must change they way they present their arguments. It will not be enough to merely sweep aside such comments as excluded under a formal “doctrine.” Including the term “stray remarks” in the memorandum of points and authorities likely will not be persuasive, either. Rather, to prevail, employers’ lawyers must be prepared to specifically address all of the evidence presented, and to effectively and persuasively present their objections.