In employment discrimination cases, employers, like Marc
Antony, come not to praise the employee, but to bury him. Unlike Antony, they mean
it. The employer’s oration might go like
this, as taken from Scene II, in “Julius Caesar:”
Your Honor,
Jurors, and Plaintiff’s counsel, lend me your ears;
I come to bury this Employee, not to
praise him.The evil that men do lives after
them;The good is oft interred with their
bones;So let it be with this Employee. The
noble Plaintiff’s counselHath told you this Employee was
ambitious:If it were so, it was a grievous
fault,And grievously hath the Employee
answer'd it.Here, under leave of the Plaintiff’s
Attorney and the rest--For Plaintiff’s Counsel is an
honourable man;So are they all, all honourable men--Come I to speak against this
Employee’s case for wrongful termination.He was my client’s worst nightmare, unfaithful
and unjust to my client, but:But the Plaintiff’s counsel says he
was ambitious;And Plaintiff’s counsel is an
honourable man.Plaintiff’s counsel hath won many
cases and brought home the spoils,Whose ransoms did the his own bank
account fill:Does this same intent to enrich the
present Plaintiff seem ambitious?When that my client’s managers have
cried in frustration, this Plaintiff laughed.
Yet the Plaintiff’s attorney says
the Plaintiff was ambitious;
And the Plaintiff’s attorney is an
honourable man.
You all did see that on the Lupercal
My client presented him warnings,
and a performance improvement plan,
Which he did thrice refuse: was this
ambition?
Yet the Plaintiff’s attorney says he
was ambitious;
And, the Plaintiff’s attorney, he is
an honourable man.
I speak not to disprove what Plaintiff’s
counsel spoke,
But here I am to speak what I do
know.
My client did love the Plaintiff
once, not without cause:
What cause withholds you then, to vote
for him? I will tell you!
O judgment! Give my client judgment, for truth has fled to
brutish beasts,
And give us jurors who have not lost
their reason. Bear with me;
My heart is there with my client,
the employer,
And I must pause till it come back
to me.
Good work should be made of sterner stuff:
An employee’s performance, like a new lover, is first seen
unblemished, and flaws are but charming accouterments, until the day a new
supervisor or manager enters the picture with a bias to grind. Then those little omissions, those slight
deviations, that accidental entry, are the mountain peaks of error, rising like
the Tetons. All to this purpose: to establish that the victim deserved what she
got: she was incompetent, defective in
the extreme, unworthy of her job. Certainly,
no discrimination was at play.
Which brings us to the case of Cheal v. El Camino Hospital (Jan. 31, 2014) 2014 DJDAR 1331 (6th
App. District – Santa Clara County). I
cite this case because it reveals the world of Summary Judgment in
discrimination cases, and because it reveals the heavy hand of some trial
judges unwilling to clear the smoke of a “thousand insults” thrown at the
employee in the moving papers. The Cheal
court described this “smoke” as “the deluge of statements, counterstatements
and objections, that mark modern summary judgment practice.”
Cheal is a droning of details deep into the daily work performance
of a hospital dietician, or “menu tech” whose job was to prepare daily menus
for hospital patients in compliance with doctor orders. The Defendant filed 77 alleged “undisputed
statements of fact” to support its motion of summary judgment, most of them
going to Cheal’s work deficiencies. The
Court of Appeal, God bless them, somehow found the time and interest, to wade
through these, and to then examine the merits of each against the “triable issue
of fact” standard. Most of the decision is
written as a microscopic account of how Cheal put the truth of Defendant’s
performance charges in issue.
Here is what is useful to the employee from this decision
(as well as instructive to the Defendant Employer bringing the motion):
Proof that the Plaintiff’s work performance was
not satisfactory to the employer is not the relevant question or standard. [For surely, the employer in its motion will
always “beg the question” that the performance was not satisfactory.] The question is: what level of competence did the employer truly
require as the operating standard for all employees? The related secondary question is: what level of performance relative to this
standard did the employee actually provide?
2.
A smart employee’s attorney opposing the motion
will obtain evidence that other employees in like circumstances committed a
higher rate of error, but were not disciplined in like manner AND that these
“favored” employees were outside Plaintiff’s “protected category.”
3.
The employee must attack the Defendant’s “smoke
screen” of “counselings” and “coachings” for what they often are: casual remarks made in passing that no
reasonable employee would consider a criticism or warning. Further, the Cheal Court cited evidence that
the “coaching” was presented in the MSJ as disciplinary action when there was
no evidence to support that the infraction incurred as charged.
4.
It is critical that in the MSJ, and of course,
at the time of the employer-employee disciplinary exchange itself, the employee
expose the lack of truth behind the performance criticism. The Cheal
court relied heavily in its decision on rebuttal evidence that the infraction
did not occur or was not as severe as represented in the moving papers. For example, one contention was that
Plaintiff erroneously failed to stamp a patient’s menu sheet as “pudding thick”
with the result that the patient received food that was “honey thick.” Surrounding this issue was a complex web of
other issues: a) why did the employer
not have a stamp for “pudding thick,” if the employer thought the designation
so critical; b) the defendant’s manager relied on statements by a speech
therapist who informed her that the patient had been fed “honey thick” over 3
days, but when deposed, the speech therapist denied making that statement; c)
there was evidence that the error was committed not by the plaintiff, but by
another employee; and d) that the error was not attributable to any fault of
the Plaintiff who did not have the opportunity to check the accuracy of the
other employee’s work.
Just summarizing this single
factual dispute on the matter of “cause to terminate” is mind-numbing, and
frankly boring. Part of me wants to
scream “who cares?” The answer is: the Court
of Appeal cares, then so must the Plaintiff and the Plaintiff’s attorney. The Cheal Court devoted pages of detailed
recitation of the evidence for this issue, as well as 3 other similar detailed
and complex clusters of factual dispute concerning “performance
competency.”
5.
The Cheal court raised an important point of
evidence where the decision maker utters a hearsay statement to a co-worker or
friend indicative of bias: the statement
may be admissible as a “declaration against interest,” where the “interest” in
question is the risk of losing one’s employment if the employer learns that a
manager harbors such discriminatory attitudes.
In this case, Cheal’s manager said to a friend (turned Plaintiff’s
witness) over a private dinner that the manager favored younger, pregnant
women. Cheal was neither younger, nor
pregnant. Hence, the statement was
useful, but subject to Defendant’s objection in the MSJ as hearsay. The Plaintiff sought to have the statement to
be a “party admission” because authorized by the Company, or on the basis of
Evidence Code Section 1224 [a vicarious admission]. The Cheal court rejected these approaches, and
independently found that the statement was admissible because the manager made
the statement knowing the statement put her employment at risk. Therefore Evidence Code Section 1230
[“declaration against interest”] applied as an exception to the hearsay rule. This is the first case to make such an
evidentiary holding in California. It
will be a useful tool for Plaintiff’s attorneys’ in future Summary Judgment
motions.
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get redressed!"
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