Exclusion of Stray Remark Enough to Reverse Summary Judgment

December 02, 2021 | From HRCalifornia Extra

By Christina Baggett, Associate General Counsel, Labor and Employment at Meta Platforms, Inc.

Where there’s smoke, there might be fire.

This was the theme of a recent California Court of Appeal decision in which the court held that a one-sentence statement erroneously excluded from evidence on a motion for summary judgment was enough to reverse the trial court’s grant of summary judgment for the employer (Jorgensen v. Loyola Marymount Univ., 68 Cal. App. 5th 882 (2021)).

One-sentence — “I want someone younger,” excluded from evidence by the trial court based on relevance, conjecture, speculation and hearsay — was found to be relevant and fall within the state of mind exception to the hearsay rule by the Court of Appeal.

The court also found that erroneously excluding this admittedly stray remark was enough, in conjunction with other evidence presented, to tip the scale in favor of the plaintiff and create a triable issue of fact on the issue of pretext.

Background

The story of this case began more than 10 years ago in 2010 when a well-known producer, Stephen Ujlaki, was appointed Dean of Loyola Marymount University’s School of Film and Television (SFTV). Only a few months before Ujlaki’s appointment, a 30-year-old newcomer to the university, Johana Hernandez, was hired as an administrative assistant.

Plaintiff Linda Jorgensen’s career had apparently gone “swimmingly” for the approximately six years she had worked for the university before Ujlaki’s appointment. Then, in 2014, four years after Ujlaki’s arrival to the scene, Hernandez, who Jorgensen herself had trained, was promoted to the position of Assistant Dean. Jorgensen was then instructed to report to Hernandez.

Jorgenson, believing that she was more qualified than Hernandez for the position, complained to the university about this turn of events. The university, however, dismissed her claims and, according to Jorgenson’s version of events, retaliated against her for complaining by failing to promote her. Jorgenson sued the university for age discrimination and retaliation in 2018 and resigned the following year.

The Stray Remark Excluded from Evidence

At the trial court level, the university filed a motion for summary judgment, on which the court isn’t allowed to weigh the evidence. Instead, considering all the evidence, it must determine whether any reasonable jury could find in favor of the non-moving party. In its moving papers, the university didn’t hold back any punches. It painted a picture of a woman who became insubordinate when Ujlaki was just trying to improve school operations; a woman who was difficult to work with according to older female employees; and a woman who, despite her experience, was not as competent as Hernandez.

Jorgenson opposed the university’s motion with her own declaration and the declarations of other older females who had worked under Ujlaki. One of these older females, Carolyn Bauer, was a former SFTV employee who, during her time at SFTV, was asked by another woman, Belinda Brunelle, about an open position at the school. When Bauer went to Hernandez to share Brunelle’s interest, Hernandez allegedly told Bauer that she “wanted someone younger” for the role.

In the university’s reply to Jorgenson’s opposition, however, it objected to the evidence proffered by Bauer’s declaration on the basis that it lacked relevance and fell into the inadmissible categories of conjecture, speculation and heresy. In its ruling, the trial court sustained the university’s objections and excluded Hernandez’s “someone younger” comment before finding in favor of the university.

The Stray Remarks Doctrine

On appeal, the Court of Appeal disagreed and overturned the trial court’s ruling on the university's objections to Bauer's declaration. Relying on the 2010 Reid v. Google, Inc. case, the court explained that so-called “stray remarks” — discriminatory comments by coworkers and non-decision-makers, like Hernandez’s statement — could be relevant in age discrimination suits.

The term “stay remarks” was first used by former Associate U.S. Supreme Court Justice Sandra Day O’Conner in her concurring opinion to the 1989 seminal case Price Waterhouse v. Hopkins on the issues of sex stereotyping and an employer’s liability for sex discrimination. In her concurring opinion, O’Connor opined that while stray remarks don't constitute direct evidence of discriminatory animus; such remarks can be probative of discrimination.

Under the stray remark’s doctrine, some federal circuit courts have disregarded remarks made by either non-decision-making coworkers or decision-making supervisors outside of the decisional process as irrelevant. The California Court of Appeal in Reid, however, took a slightly more nuanced approach that was arguably more in line with Justice O’Conner’s original use of the phrase in Price Waterhouse. Instead of categorially dismissing such remarks, the court found that on summary judgment, they should be viewed in context of the totality of evidence in the record. Thus, while stray remarks and nothing more are insufficient to establish a claim of age discrimination, stray remarks coupled with other evidence can create a triable issue of fact.

Against this backdrop, the Court of Appeal in Jorgenson noted that Hernandez’s stray remarks were erroneously excluded from evidence because the evidence permitted an inference that Ujlaki trusted Hernandez as an advisor, and therefore her remarks were sufficiently relevant under the cat’s paw doctrine and fell under an exception to the hearsay rule.

The Cat's Paw Doctrine and the Hearsay Rule's State of Mind Exception

Under the cat’s paw doctrine, also relied on by the Reid court, an employer may be liable for an employment decision that was, unbeknownst to the employer or even the decision-maker, tainted by a non-decision-maker's discriminatory comment or influence.

In Jorgenson, the court found that Ujlaki:

  • Invited Hernandez to be present with him during the final round of interviews for the Associate Dean positions;
  • Discussed the three candidates for these positions with Hernandez after the interviews; and
  • Confided in her that he was "torn" about who should be selected.

This evidence, in conjunction with evidence that Ujlaki put an enormous amount of trust in Hernandez and relied heavily on her to do work for him, was enough for the court to find that Hernandez’s stray comments were relevant.

In addition to being relevant, the court also found that these comments fell within the state of mind exception to the hearsay rule.

Under the state of mind exception, statements offered not for the truth of the matter asserted, but rather as evidence of the speaker’s state of mind fall under an exception to the hearsay rule and are thus not subject to exclusion as hearsay. In Jorgenson, this means Hernandez’s statement that she “wanted someone younger” was circumstantial proof of her state of mind — namely that she preferred younger employees.

Finally, the court ruled that there was no “speculation” or “conjecture” at issue since Bauer quoted Hernandez word-for-word. Therefore, the court concluded that Hernandez’s stray comments should not have been excluded from evidence.

Next, the court analyzed whether including Hernandez’s stray comments was enough to reverse the trial court's ruling in favor of the employer on summary judgment. To do this, the court examined the record to see if Hernandez’s stray remarks changed whether the summary judgment was suitable under the governing law.

Relying heavily on the court’s reasoning in Reid, the Jorgenson court concluded that the stray remark was enough to find that Jorgensen created a triable issue of fact on the issue of pretext. According to the court, while some stray remarks are ambiguous, this one was not, and the evidence of Ujlaki’s regard for Hernandez’s advice was clear. Therefore, according to the court, when an influential advisor makes a clearly biased comment in a case like this, it will suffice to create enough smoke for a trier of fact to find that there might be fire.

Employer Takeaways

There are a few key takeaways for employers in light of this decision:

  • Stray remarks made by individuals who have a close relationship to the decision-maker in a case may be used as direct evidence of discriminatory intent under the cat’s paw doctrine.     
  • Stray remarks, while insufficient by themselves to withstand summary judgment, may tip the scales when viewed in context and when making inferences in favor of the non-moving party.
  • Summary judgment in cases alleging discrimination and harassment in California are increasingly difficult for employers to win. This case is one example of how a single, one-sentence remark by a non-decision maker in a conversation unrelated to the decision at issue can make the difference between going to trial and being decided based on the parties' filed documents.