Being an employer these days can be a real minefield. Some employers are downright paranoid about discrimination and harassment lawsuits. So much so that they often have a no-tolerance policy about any type of comments about a person’s age, race, sexual preference, etc. Arnold v. Dignity Health (Cal. Ct. App., July 17, 2020, No. C087465) presents the question of whether routine comments about a person’s protected status (whether it be age, race, or sexual preference, etc.) are sufficient evidence to defeat a summary judgment motion where the employer can point to legitimate non-discriminatory reasons for termination. The answer, according to the Third District Court of Appeal, is no.
In 2003, when Virginia Arnold was about 55 years old, she was hired as a medical assistant at Dignity Health. After a few years of employment, she began to receive various write-ups for her performance and personal conduct. These write-ups occurred in 2008 (failed to remove a patient’s identifying information from a urine sample cup), 2011 (warned not to work off-the-clock, 2012 (being disrespectful and aggressive toward a coworker) and then in 2013 (additional work misconduct and not being truthful about that incident). The last warning in 2013 was with a new supervisor. Since she was already on a final warning, the new supervisor terminated her. The termination letter cited the 2013 incidents but also the prior warnings and suspension.
Arnold sued. Among other causes of action, she sued for discrimination and harassment based on her age and her association with African Americans. Dignity Health filed for summary judgment and won. (A quick practitioner’s note: the trial court dismissed her other claims because although Arnold claimed she was appealing the entire judgment, she did not address the other causes of action in separate headings or directly. So even if the claims are derivative, they should at least be addressed in that manner.)
In support of her age discrimination claim, Arnold indicated after a birthday, her supervisors made comments about her age and retiring such as:
- “Oh, I never knew you were that old.”
- “Oh, how come you haven’t retired?”
- “Gosh, I can’t believe you are that old.”
These comments, which would probably make most HR Directors quite nervous, were insufficient to satisfy Arnold’s burden on summary judgment which was to provide evidence sufficient to establish a triable issue of fact as to whether the alleged discrimination was a “substantial motivating factor in the adverse employment decision.”
The appellate court held, with respect to the comments made by Arnold’s prior supervisors, there was no evidence that the persons who made those comments were directly linked to the decision to terminate Arnold.
But more importantly, the appellate court held even if the prior supervisors were involved in Arnold’s termination, there was insufficient evidence to support the conclusion that these fairly generic age-based comments were made with discriminatory animus. The appellate court reasoned a person’s birthday was a fairly natural and appropriate time to discuss their age and retirement plans. And the other age-based comments Arnold cited were more surprise at her age and agreement with the surprise. Arnold tried to add a negative connotation to the comments by saying they were made in an intimidating tone. But the appellate court held even if that were true, it was “only sufficient to raise a weak suspicion of discriminatory animus and does not amount to substantial evidence of discriminatory animus necessary to defeat a summary judgment motion.”
One final bit of reasonable analysis by the appellate court regarded Arnold’s claim that Dignity Health failed to follow its usual disciplinary policy (another fact which raises hairs on the back of HR Director’s necks). But the appellate court shot the argument down as well surmising although it might suggest the employer was trying to hide the true and discriminatory reason for the termination, here there was insufficient evidence in the first place of a discriminatory reason.
Although employers should maintain robust and comprehensive non-discriminatory and non-harassment policies at the workplace, its refreshing to read an opinion that puts at least some modicum of reasonableness back into routine workplace comments, even if they are about age, race, or other protected statuses.
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