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Ageist Comments Lead to Litigation

In a recent case from the 4th appellate district, the California Court of Appeals reversed a lower court’s granting of a motion for summary judgment finding there were triable issues of fact.  According to the evidence presented in the motion and opposition, 60 year-old Robert Sundell was terminated from his V.P. of Sales position at Taylor-Listug.  Four years earlier Mr. Sundell suffered a stroke, and thereafter began using a cane.  Up to that time, and even the following year, Mr. Sundell received mostly positive performance reviews.

Sundell’s 2006 performance review marked him as “needing improvement” in three out of eight areas.  Around the same time Sundell began hearing comments from the company owners leading him to believe they wanted to hire younger, less expensive employees.  According to Sandell, a few days after he returned to work full-time in December 2004, “[Listug] came in my office . . . and closed the door and said that if I didn’t make a full recovery, that the company had the right to fire me or demote me and reduce my salary.”

Listug also allegedly questioned Sandell’s use of a cane, suggesting that Sandell was using the cane to create sympathy or to get attention. According to Sandell, “[Listug] called me to his office after one of our regular or routine sales meetings, and he asked me when I was going to get rid of the cane and when I was going to drop the dramatization.”

According to Sandell, Taylor also announced several times in management meetings that “he would rather fire old people and replace them with newer, younger people because it was cheaper.” Sandell heard Taylor say that “he would rather get rid of an older, tenured employee and hire a younger employee because they were . . . less expensive.”

The company fired Sandell a A few days after Sandell turned 60.  Sandell filed a claim with the DFEH then filed suit.  The lower court thought Sandell failed to establish a prima facie case of age or disability discrimination, and that even if he did, the company established a legitimate business reasons for its action which Sandell could not rebut.  The appellate court reversed.

According to the appellate court, Sandell showed both that he was disabled for purposes of FEHA and that his co-workers and managers were aware of his disability. Sandell also presented sufficient evidence to support his claim for discrimination in response to Taylor-Listug’s proffer of non-discriminatory reasons for terminating his employment. Sandell offered evidence that Taylor-Listug’s proffered reasons for terminating his employment were untrue, from which a fact finder could infer that those reasons were a pretext for disability discrimination.

The court found that Sandell’s performance reviews refuted Taylor-Listug’s claim that it terminated Sandell  for performance related issues.  In particular, the court found that the fact that the parties argued extensively about a number of factual issues, including the meaning of various sales numbers and whether or not there were leadership issues, demonstrated why the case was not an appropriate one for summary judgment and should instead have been heard by a jury.

Comments regarding Sandell’s disability constituted evidence of discriminatory intent and could not be dismissed as mere “stray” remarks. As the California Supreme Court recently observed, the “categorical exclusion of evidence” which could result from application of the stray remarks doctrine could lead to unfair results.

The court also clarified the burden under the prima facie case. According to the appellate court, an employee is required to show only that he or performed competently according to objective criteria. Consideration of the employer’s subjective criteria does not become not relevant until later. The prima facie burden exists only to weed out patently unmeritorious claims.

Of significant import is the timing of the company’s hiring of Sandell’s replacement.  Even though Listug, who was only a few years younger than Sandell, temporarily took over the duties of vice-president of sales after Sandell was fired, Taylor-Listug ultimately replaced Sandell with a person in his “mid-forties.” The replacement, however, was not hired for another 18 months.  Even if an inference could be drawn in Taylor-Listug’s favor from the 18-month delay before the younger man took over, such inference was not determinative. A contrary inference could be drawn just as easily.

So, what can we draw from this case?  Telling employees that you want to hire younger, less-expensive workers is not a good idea.  Also, replacing an older worker with a younger worker can sometimes be a risky proposition, even if you wait a year and a half before replacing the person.  I suspect Taylor-Listug did not consult with their employment counsel on this one, or at least did not tell counsel that they made ageist remarks to the plaintiff before deciding to fire him.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

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