California Supreme Court Rejects “Stray Remark” Doctrine

On August 5, 2010, in Reid v. Google, the California Supreme Court considered two questions related to a ruling on summary judgment in an age discrimination case:  (1) whether a party’s evidentiary objections at summary judgment are preserved on appeal if the trial court does not expressly rule on the objections; and (2) whether California should adopt the “stray remarks” doctrine, which, in employment discrimination cases, deems potentially discriminatory statements by non-decision makers or decision makers outside of a decisional process, “stray” and thus irrelevant and insufficient to defeat summary judgment.

The Court answered the first question in the affirmative, finding that once a party has timely filed or raised objections prior to or at the hearing on summary judgment, those objections are preserved for appeal.  The Court answered the second question in the negative, refusing to adopt the stray remarks doctrine for California state courts.

Reid’s Employment At Google

Reid was hired by Google as Director of Operations and Director of Engineering in 2002 at age 52.  He worked at Google for less than two years before he was terminated.  In his first and only performance review given by the decision-maker who hired him, Reid received praise.  The review, however, also contained the following comment:  “Adapting to the 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.” 

Another decision-maker allegedly told Reid every few weeks that his opinions and ideas were “obsolete” and “too old to matter,” and he was “slow,” “fuzzy,” “sluggish,” “lethargic,” did not “display a sense of urgency,” and “lack[ed] energy.”  Additionally, Reid contended that colleagues called him “old man,” “old guy,” and “old fuddy-duddy,” referred to his knowledge as “ancient,” and joked that the CD jewel case office placard should be an “LP” instead of a “CD.”

Three weeks before Reid’s termination, his boss, responding to the CEO’s request for a proposal to force Reid out of the Company, stated in an email that the Company should pay Reid a partial bonus as well as a severance so as to avoid “a judge concluding we acted harshly.”  One week later, Reid was told that his department no longer had a place for him.  When Reid received permission to look for a position in other departments, a number of emails among Google’s management team described a strategy to tell Reid that there were no positions available for him, and to advance “the job elimination angle” as the reason for his termination.

The Lawsuit

Reid sued Google on various theories, including that he was wrongfully terminated on the basis of his age in violation of the Fair Employment and Housing Act.  The trial court granted Google’s motion for summary judgment on Reid’s discrimination claim, in part because it viewed Reid’s evidence in opposition to summary judgment as consisting primarily of stray remarks, even though Reid had also offered statistical evidence of discrimination at Google.  In support of its motion for summary judgment, Google filed written objections to Reid’s opposition evidence.  The trial court did not specifically rule on the objections, instead stating that it was relying on “competent and admissible evidence” in rendering its ruling.

The Court of Appeal reversed, holding that Reid presented sufficient evidence in opposition to summary judgment to raise a triable issue of fact as to whether his termination was pretextual.  In doing so, unlike the trial court, the Court of Appeal considered the stray remarks as well as Reid’s statistical evidence.  The Court of Appeal also found that Google’s written objections to Reid’s evidence were not waived on appeal even though Google had failed to raise them at the hearing and obtain a specific ruling on each of them.  

The Supreme Court’s Ruling

The Supreme Court affirmed the Court of Appeal.  As to the issue of waiving objections, the Court held that as long as a party timely makes oral or written objections to evidence in support of or in opposition to summary judgment, those objections are not waived if the trial court refuses to rule on them.  The trial court must rule on the objections, and its failure to do so does not constitute a waiver on the part of the objecting party.  Google therefore properly reserved its objections.

As to the issue of stray remarks, the Court declined, for several reasons, to adopt the stray remarks doctrine.  First, in ruling on a summary judgment motion, a court must consider all evidence and any inferences reasonably deducible from it, and is precluded from weighing the evidence.  The Supreme Court reasoned that, under the stray remarks doctrine, a court would have to weigh and assess the stray remarks, and disregard any impact they may have on the case simply because of who made the statement or when it was made. 

Moreover, although stray remarks are not direct evidence of discrimination, the Court held that they can be circumstantial evidence of discrimination.  Further, when combined with other evidence of pretext (e.g., the emails and statistical evidence presented by Reid), stray remarks may suffice to defeat summary judgment, particularly when there is evidence that the decision-maker was influenced by the stray remark. 

Finally, the Court found it telling that courts applying the doctrine have applied it inconsistently – courts have not agreed on who constituted a decision-maker, what constituted the decisional process, or how much time must pass between a comment and that process for the remark to be considered “stray.”

In summary, although the stray remarks doctrine arose in the United States Supreme Court and has been approved in many of the federal circuit courts, the California Supreme Court found that categorical exclusion of evidence under the stray remarks doctrine could lead to unfair results and therefore refused to adopt the doctrine.

What Reid Means For Employers

After Reid, objections timely submitted at summary judgment will not be considered waived on appeal simply because the trial court declined to rule on them.  More importantly, because the Supreme Court now requires California trial courts to consider stray remarks, and all of the circumstances surrounding the remarks, when ruling on a motion for summary judgment on a cause of action brought under the Fair Employment and Housing Act, the employer’s burden is more difficult.  This is more reason for employers to continue to monitor and enforce workplace non-discrimination and harassment policies, and to take immediate and appropriate action when “stray remarks” become known.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our website.