Metropolitan News-Enterprise


Thursday, January 31, 2008


Page 1


High Court to Rule on Age Discrimination Claim Against Google


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court yesterday agreed to decide whether a former Google, Inc. executive who was terminated at the age of 54 produced enough evidence to go to trial on his claim of age discrimination

By a vote of 6-0, the high court voted to review the Oct. 4 ruling of the Sixth District Court of Appeal in Reid v. Google, S158965. Chief Justice Ronald M. George was absent and did not participate.

Brian Reid claimed that a series of changes in his job title and duties, culminating in the elimination of an educational program he was running and the termination of his employment with it, was a result of his age. Google maintains that Reid’s termination was solely a result of its decision to dismantle the program, under which Carnegie Mellon University professors taught courses at the company’s headquarters, enabling its engineers to achieve master’s degrees.

Reid, who had previously held the titles of director of operations and director of engineering, testified that he was assured the company intended to maintain the program under his supervision for at least five years but that he was not given a budget or staff to support the program.

He was hired by Google in June 2002 at the age of 52, after having been an associate professor in electrical engineering at Stanford University. At the time of Reid’s hiring, company founders Sergey Brin and Larry Page were under 30, and other high-level officials of the company—with the exception of Wayne Rosing, the vice president of engineering, who was three years older than Reid—were all in their 30s and 40s.

In support of his claim, Reid offered his only written performance evaluation at Google, which described him as having “an extraordinarily broad range of knowledge” and “an excellent attitude.” The evaluation also said that he projected “confidence when dealing with fast changing situations,” and described him as “very intelligent,” “creative,” and  “a problem solver.”

Reid claimed that while he was working at the company, he was subjected to numerous age-related derogatory comments by younger workers, including other executives, who said his ideas were “obsolete” and “too old to matter;” and that he was slow,” fuzzy,” “sluggish,” “lethargic,” an “old man,” an “old guy,” and an “old fuddy-duddy.”

He noted that when he was moved into the graduate program, his duties were divided between two men who were 15 and 20 years younger. In early 2004, he alleged, Rosing told him he was not a “cultural fit” with the engineering department and should look for a job elsewhere in the company.

Reid said he tried to find another position, but could not secure one. In opposition to the summary judgment motion, he presented e-mails showing that company officials who communicated about his situation at the time he was terminated from engineering had already determined there was no place for him with the company.

He also presented the declaration of Norman Matloff, a college professor with 30 years of experience in statistics. Matloff concluded, based on data obtained from the company, that for both high-level and lower-level employees at Google, there was a significant negative correlation between age and performance rating, and that for high-level employees, a significant negative correlation between age and bonus.

Writing for the unanimous Court of Appeal, Presiding Justice Conrad Rushing, said that Reid had presented a prima facie case of discrimination, and had sufficiently rebutted Google’s claim that he was terminated solely because of a business decision to eliminate his position.

Rushing cited the Matloff declaration, the comments allegedly made by Reid’s fellow employees, the fact that Reid was demoted from a substantial position to one that was not viable shortly before his termination, and evidence that the company gave Reid a different reason for his termination before telling him that the educational program was being axed.

The trial judge, Rushing said, “clearly erred” in ruling that the statistical evidence did not raise a triable issue. Google, he noted, “does not offer conflicting expert testimony to dispute Reid’s statistical findings; rather, Google’s counsel offers arguments about why the findings are not sound,” including that the sample sizes were too small.

Those arguments, the presiding justice said, go to the weight of the evidence and must be resolved at trial rather than by summary judgment.

Rushing also rejected Google’s claims that it cannot be held liable for discrimination based on what it characterized as “stray remarks” by its employees about Reid’s age. The comments themselves, the fact that some of them were made by executives who had apparent input into the decision to terminate Reid, and their consistency with other evidence of age bias make them significant in the context of the evidence as a whole, Rushing said.

He also rejected Google’s contention that the fact that Rosing, who is older than the plaintiff, made the termination decision creates an inference of non-discrimination. While that evidence may persuade a jury, Rushing said, the jury would also be entitled to consider evidence that younger executives, including co-founder Page,  influenced the decision.

Nor, Rushing added, is it presumed that because someone is older, he did not  discriminate on the basis of age.

In other matters, the justices:

•Voted 6-0 to grant review in the unpublished case of People v. Banegas, B193283, pending consideration and disposition of a related issue in People v. Towne, B166312, where the court is considering whether a trial court may use facts relating to counts on which a defendant was found not guilty as aggravating factors in determining the appropriate sentence.

•Agreed, by a 5-1 vote, to decide whether a magistrate’s dismissal of a felony complaint for lack of probable cause barred the filing of misdemeanor complaint based on the same facts. Justice Joyce L. Kennard was the lone member of the court to vote against taking the case.  The case is People v. Traylor, C053172.

•Denied a request by the Air Line Pilots Association, Association of Flight Attendants, and non-party Stacey Leyton to depublish the opinion by Div. Six of this district’s Court of Appeal in Fitz-Gerald v. SkyWest Airlines, B187795.

The court held that the Federal Railway Labor Act preempts application of state labor law regarding minimum wages and meal/rest breaks to employees of an interstate air carrier, and preempts application of state overtime wage laws to such employees if they are represented by a recognized employee organization which has negotiated a collective bargaining agreement with the employer. It also held that application of state minimum wage laws to interstate air carriers violates the Commerce Clause.


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