Metropolitan News-Enterprise


Friday, August 6, 2010


Page 1


S.C. Upholds Reviving Age Bias Claim Against Google


By STEVEN M. ELLIS, Staff Writer


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

The high court unanimously ruled that a trial court’s failure to rule on a party’s evidentiary objections relating to a summary judgment motion does not waive the objections on appeal. The justices also said that the Sixth District correctly ruled that it should not adopt the “stray remarks” doctrine in employment discrimination case because it was unnecessary and its categorical exclusion of evidence might lead to unfair results.

Followed by federal courts, the doctrine provides that statements that non-decision makers make or that decision makers make outside of the decisional process are deemed “stray” and irrelevant and insufficient to avoid summary judgment.

Brian Reid sued Google after he was let go in 2004, claiming that the company changed his job title and duties, and then eliminated an educational program he ran and terminated him because of his age. The company contended that Reid’s termination resulted from a decision to dismantle the program, whereby Carnegie Mellon University professors taught courses at the company’s headquarters allowing engineers to obtain master’s degrees.

A former associate professor in electrical engineering at Stanford University, Reid joined Google in 2002, and was one of only two high-level officials at the company over 50 when he was terminated two years later.

Attorney Comments

San Francisco attorney Paul Cane Jr. of Paul, Hastings, Janofsky & Walker, told the MetNews yesterday that the decision meant only that “the allegations were not categorically inadmissible,” and “left for the trial court and the jury to decide whether they have any probative significance.”

He added:

“Google looks forward to showing that they don’t.”

Cane also emphasized that the decision was not likely to impede summary judgment in discrimination cases, but rather “reaffirmed that summary judgment can be granted” depending on the circumstances.

Counsel for Reid, who was represented by Duane Morris LLP in San Francisco, could not be reached for comment.

At the trial court, Google demurred and moved for summary judgment. Santa Clara Superior Court Judge William J. Elfving granted the request, reasoning that Google showed legitimate non-discriminatory reasons for terminating Reid, but the judge failed to rule on objections Google made to evidence Reid submitted.

C.A. Opinion

A panel of the Sixth District unanimously reversed in an opinion by Presiding Justice Conrad Rushing. He wrote that Reid’s evidence—which included statistical evidence of discrimination at Google, discriminatory comments by co-workers and decision makers, and evidence that he was demoted to a nonviable position before his termination and that the company advanced changing rationales—raised a triable issue of fact.

Rushing, however, said that the trial court’s failure to rule on Google’s objections did not waive them on appeal. He also considered and rejected Google’s challenges to the methodology Reid’s statistical expert used, and its argument that alleged ageist comments by decision makers and Reid’s co-workers were “stray remarks” and therefore insufficient proof of pretext.

On appeal to the California Supreme Court, the justices concurred with Rushing in an opinion by Justice Ming W. Chin.

Chin agreed with Reid that the objections should be presumed to have been overruled, but said that Google was not prejudiced by the trial court’s application of the waiver rule because the Court of Appeal addressed the objections before denying them.

The justice also wrote that the Court of Appeal correctly rejected the stray remarks doctrine’s categorical exclusion of evidence.

“[F]ederal courts have widely divergent views regarding who constitutes a decision maker and how much separation must exist between the remark and an adverse employment decision for the remark to be considered stray,” he said. “As Reid points out, the only consistency to the federal stray remarks cases is that the probative value of the challenged remark turns on the facts of each case.”

The case is Reid v. Google, Inc., 10 S.O.S. 4500.


Copyright 2010, Metropolitan News Company