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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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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