Santa Clara County Superior Court No. CV141348 The Honorable Mark H. Pierce Judge .
Attorneys for Plaintiff and Appellant Carol Cheal: Kastner Kim Eric C. Kastner J. Philip Martin
Attorneys for Defendant and Respondent El Camino Hospital: Fitzgerald Abbott & Beardsley, Sarah E. Robertson Mark A. Delgado
Plaintiff Carol Cheal brought this action for age discrimination against her former employer, defendant El Camino Hospital. Defendant successfully prevailed upon the trial court to grant summary judgment in its favor despite numerous materially disputed facts. As too often happens, the merits of the case were obscured to the point of invisibility in the deluge of statements, counter-statements and objections, that mark modern summary judgment practice. The record clearly raises triable issues of fact with respect to whether plaintiff was performing adequately at the time of her discharge and whether the discharge was the product of a belief to the contrary or of discriminatory animus against older workers on the part of plaintiff’s immediate supervisor. We will therefore reverse the judgment.
Plaintiff worked in defendant’s Nutrition Services Department from August 1987 until her discharge in October 2008 at age 61. At all relevant times she held the position of Dietetic Technician Registered, or “Diet Tech.” For present purposes it may be assumed, as defendant asserts, that her duties were the same as those of a “menu clerk” or “Diet Clerk.” They involved the preparation of menus for patient meals, while adhering to procedures intended to ensure that the correct foods reached the correct patients.
Up to and including her performance evaluation in August 2007, plaintiff always received a rating of “Meets Standards, ” which she declared without contradiction was “the highest category of performance on the Hospital’s ‘Performance Evaluation.’ ” But things changed after July 2007, when defendant hired Kim Bandelier to supervise all employees on the clinical side of nutritional services, including plaintiff. By January 2008, Bandelier was accusing plaintiff of numerous shortcomings. On April 14, 2008, Bandelier gave plaintiff a written warning for failure to conform to the hospital’s “two-patient identifier procedure, ” discussed in more detail below (see pt. II(E)(2), post). On June 3 she issued a second, “[f]inal” warning for failure to comply with the same procedure.
On Monday, September 8, 2008, Bandelier accused plaintiff of incorrectly preparing one or more menus for a patient restricted to “pudding thick” liquids, in a manner that allowed, or could have allowed, the patient to receive thinner, “honey thick” liquids. On September 25, 2008, a hospital manager told plaintiff that she was no longer considered competent to perform her duties as a diet clerk or diet tech, and that she could either take another position in the nutrition services department, accept a severance package, or be discharged. About a week later, plaintiff informed defendant that any further communication should go through her attorney. On October 10, 2008, defendant notified plaintiff that her employment was terminated.
Plaintiff filed this action on April 30, 2009, asserting causes of action for age discrimination, wrongful demotion and termination, failure to investigate or take corrective action against age discrimination, and retaliation for complaints of unlawful discrimination. Defendant answered with a general denial and 14 affirmative defenses. On August 13, 2010, defendant filed a motion for summary judgment, asserting 77 supposedly undisputed facts in support. Plaintiff responded to each of these assertions and submitted 37 additional facts that she contended precluded summary judgment. Each party lodged numerous objections to the evidence put forth by the opposing party. The court issued an order sustaining some objections, overruling the rest, and granting the motion for summary judgment. The court wrote that summary judgment was warranted because (1) “[p]laintiff fail[ed] to show she performed her job in a satisfactory manner”; (2) defendant “establishe[d] a legitimate, nondiscriminatory reason for its actions” while “[p]laintiff... [did] not produce substantial evidence that Defendant’s stated reasons were untrue or pretextual, or that Defendant acted with a discriminatory animus” (italics in original); (3) having failed to make a prima facie case of age discrimination, plaintiff could not establish her claims for wrongful termination and failure to investigate or take corrective action; and (4) because plaintiff had already been “disciplined on numerous occasions” when she first complained, plaintiff could not make out a cause of action for unlawful retaliation.
Plaintiff filed this timely appeal.
I. General Principles
“ ‘We summarized the principles governing an appeal of this type in Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 106–107 [16 Cal.Rptr.3d 717] (Reeves): “On appeal from an order granting summary judgment ‘we must independently examine the record to determine whether triable issues of material fact exist. [Citations.]’ [Citation.] The question is whether defendant ‘ “ ‘conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.’ [Citation.]” [Citation.]’ [Citations]; (see Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 335, fn. 7 [100 Cal.Rptr.2d 352, 8 P.3d 1089], ... (Guz) [‘the issue... is simply whether, and to what extent, the evidence submitted for and against the motion... discloses issues warranting a trial’].)... [Citation.] Moreover, ‘we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor. [Citations.]’ [Citations.] And a plaintiff resisting a motion for summary judgment bears no burden to establish any element of his or her case unless and until the defendant presents evidence either affirmatively negating that element (proving its absence in fact), or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence. [Citations.]” ’ (Mamou v. Trendwest Resorts (2008) 165 Cal.App.4th 686, 710-711, 81 Cal.Rptr.3d 406 (Mamou).) In determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made. (See Reid v. Google [(2010)] 50 Cal.4th 512, 534, 113 Cal.Rptr.3d 327, 235 P.3d 988; Code of Civ. Proc., § 437c, subds. (b)(5), (c), (d).) Such evidentiary questions, however, are subject to the overarching principle that the proponent’s submissions are scrutinized strictly, while the opponent’s are viewed liberally.’ ” (McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 956-957.)
II. Unsatisfactory Performance
The first and primary ground cited by the trial court for its entry of summary judgment was this: “As Plaintiff made several mistakes on menus between January and May in 2008, Plaintiff fails to show she performed her job in a satisfactory manner.” Competent performance is part of a plaintiff’s “prima facie case of discrimination” (Guz, supra, 24 Cal.4th at p. 354) under the special burden-shifting analysis devised in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 (McDonnell Douglas). Under that approach, an employment discrimination plaintiff raises a presumption of liability by “provid[ing] evidence that (1) he was a member of a protected class, (2) he was... performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz, supra, at p. 355.)
The trial court thus ruled that plaintiff would be unable at trial to establish the second factor, i.e., that she was “performing competently in the position [s]he held.” This contention necessarily implicates two constituent questions: What could a trier of fact find to be a competent level of performance; and what level of performance did the plaintiff actually render? We turn now to those questions.
B. Standard of Competent Performance
What constitutes satisfactory performance is of course a question ordinarily vested in the employer’s sole discretion. An employer is free to set standards that might appear unreasonable to outside observers, and to discipline employees who fail to meet those standards, so long as the standards are applied evenhandedly. But that does not mean that an employer conclusively establishes the governing standard of competence in an employment discrimination action merely by asserting that the plaintiff’s performance was less than satisfactory. Evidence of the employer’s policies and practices, including its treatment of other employees, may support a contention, and an eventual finding, that the plaintiff’s job performance did in fact satisfy the employer’s own norms. Such a finding not only carries the plaintiff’s burden to show competence under the McDonnell Douglas/Guz analysis; it also grounds an inference that the true motive for the challenged action lay somewhere else, as in discriminatory animus.
Here the trial court concluded that plaintiff had failed to show competent performance because the evidence showed that she “made several mistakes on menus between January and May in 2008.” But aside from triable issues concerning the number and magnitude of the “mistakes” she made (discussed below), there was strong evidence before the court that the hospital, under its own written policies, anticipated and expected such mistakes because, given the nature of the work, they were inevitable. According to plaintiff’s uncontradicted account, the hospital prepared about 500 meals a day, which required processing 500 menus. Of these, perhaps a third were “special diets.” Each food selected by a patient on a special diet had to be checked against, and modified if necessary to conform to, the physicians’ orders for that patient. As a result, plaintiff declared, “errors by all Diet Office staff invariably resulted.” For this reason, the hospital relied on a multi-tiered system of safeguards in which “tally clerk[s]” reviewed the work of menu clerks, a “checker” on the kitchen staff compared tray contents to menu entries, and the nurses, who actually delivered the trays to special-diet patients, assumed “the final responsibility for the check of the food tray.” This statement is substantiated by a copy of a written policy attached to, and identified in, plaintiff’s declaration. It states that upon delivery of a meal tray to the nursing station, “Nursing staff is responsible for immediately confirming the accuracy of each tray by checking the menu heading, room number, name and diet order on each menu, with the most recent diet order for that patient.”
Indeed, plaintiff offered something of a smoking gun on this point in the form of the hospital’s printed evaluation form for the diet tech position, which prescribed the acceptable rate for certain types of errors. Of seemingly greatest pertinence here is the notation, under “menu writing skills, ” that the diet tech “uses appropriate food consistencies and compositions in accordance with patient’s diet orders and age with less than one error per day.” (Emphasis added.) Similar notations appear under “meal tray checking skills” (“less than two errors per meal”), “nourishment (NX) checking skills” (“less than one error per day”), and use of “MIS and diet office PC” (“less than one error per day”). These entries ...