California Labor &
Employment Law Blog
May 1, 2009

California Court Sanctions Use of “Me Too” Evidence in Discrimination Case

Topics: Court Decisions, Discrimination, Harassment & Retaliation

Earlier this week, a California Court of Appeal held that "me too" evidence of discrimination was admissible in opposition to an employer's motion for summary judgment and that such evidence was sufficient to require that the employer's motion be denied. The case is Dewandra Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and the decision is here.

The plaintiff alleged that her employment was terminated the day she returned from a one-week leave for a pregnancy-related disability. The employee's reason for believing her termination was because of her pregnancy was largely due to the timing of the action and the fact that the employer did not specifically tell her why she was being fired. The employer presented evidence that the employee was fired for falsifying time and billing records, which was discovered during the employee's absence. The employer moved for summary judgment, arguing that the employee did not have sufficient evidence of discriminatory motive for the case to proceed to trial. The trial court agreed, finding that timing alone and evidence that the employer's decision may have been unwise or unsound, were not sufficient grounds to rebut the employer's proffered non-discriminatory justification for the termination.

In opposition to the employer's motion, the plaintiff also presented a number of declarations of other former employees, all suggesting that they too had been discriminated against by the same decisionmakers on account of pregnancy. The employer made evidentiary objections to these declarations, arguing that they were not admissible evidence. It appears that the trial court never ruled on the employer's objections, but granted the employer's motion for summary judgment, finding that the plaintiff had failed to present sufficient evidence of discrimination. The plaintiff appealed.

The appellate court reversed the trial court's ruling, finding that the "me too" declarations were admissible evidence and that they provided sufficient evidence that the employer's action may have been motivated by discriminatory animus to entitle the plaintiff to proceed to trial on her claim. The trial court reasoned that the factual circumstances alleged in the "me too" declarations were sufficiently similar to the plaintiff's allegations that they were sufficiently probative to be admissible evidence.

This case is a good reminder that timing alone, while generally insufficient by itself to defeat summary judgment, is often the trigger for a lawsuit and the expensive litigation that follows. Another factor that can compound a timing problem is not being forthcoming with an employee as to the reason for termination. Finally, this case is a good reminder that employers should always demand rulings on evidentiary objections made in connection with motions for summary judgment, because these rulings are important in any subsequent appeal.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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