Publication

Employment

Defeating Employment Discrimination Claims at the Summary Judgment Phase

October 2007

In Brian Reid v. Google, Inc. the California Court of Appeal, Sixth District recently reversed a trial court's order granting summary judgment in favor of employer Google, Inc., holding that statistical evidence of discrimination against older workers, together with evidence of discriminatory comments made by coworkers and decision makers to 54 year-old Plaintiff Brian Reid, sufficiently rebutted defendant's evidence that plaintiff was terminated solely because defendant was eliminating the program run by plaintiff.

1. The Value of Statistical Evidence:

In opposition to Google's motion for summary judgment, plaintiff retained statistician, Professor Norma Matloff, who concluded that a disparity existed between performance ratings and bonus amounts that could be traced to age as opposed to other variables. On appeal, the Reid court found that statistical evidence was "clearly admissible" in the context of a motion for summary judgment reasoning that such evidence is relevant if it demonstrates a disparity in treatment (i.e. difference is treatment based upon age, race, gender, and/or sexual orientation) and can eliminate any nondiscriminatatory explanations for disparity, such as legitimate selection criteria. (Barnes v. GenCorp., Inc. (8th Cir. 1990) 896 F.2d 1457, 1466.)

Reid teaches that statistical evidence may be utilized to demonstrate or defeat claims of disparity in treatment, and eliminate or demonstrate non-discriminatory explanations for disparity in a motion for summary judgment. Reid provides employers with an opportunity to defeat claims of discrimination during the early stages of litigation on a numerical basis utilizing statistical data analyses.

2. The Impact of Discriminatory "Stray" Comments:

Plaintiff asserted that Google's key decision makers and co-workers made ageist remarks to him, referring to him as "sluggish," "slow," "fuzzy," and "lethargic." He was told by a decision maker that his ideas were "obsolete," "too old to matter," and that he was not a "cultural fit." In addition, co-workers called him an "old man" and "old fuddy-duddy." Google argued these comments are "stray" remarks that did not raise a triable issue of fact as to pretext. However, the Reid court found that these remarks, coupled with the statistical evidence, supported an inference that the employer's actions were motivated by discriminatory animus. Federal courts have similarly also held that such remarks, with additional evidence, may create triable issues of material fact and defeat summary judgment. (Greene v. Safeway Stores, Inc. (10th Cir. 1996) 98 F.3d 554, 561; Hayes v. Compass Group USA, Inc. (D. Conn 2004) 343 F.Supp.2d 112, 120.)

Comments by employers that seem harmless at the time may eventually be utilized by employees in a discrimination case. Employers must be wary of such "stray" remarks as these comments may be used to defeat a motion for summary judgment where an employee can demonstrate the employer's actions were motivated by discriminatory animus.